EXPERTS IN CIVIL CASES: AN INSIDE VIEW

by Fred Prichard. New York: LFB Scholarly Publishing LLC, 2005. 190pp. Hardcover. $60.00. ISBN: 1-59332-086-8

Reviewed by Herbert M. Kritzer, University of Wisconsin-Madison. Email: hkritzer [at] wisc.edu

pp.950-953

EXPERTS IN CIVIL CASES is an interesting contribution to the literature on civil justice. It asks the question of how do lawyers litigating civil cases hire and interact with engineers who serve as expert witnesses and consultants? While it is likely that many of the kinds of issues examined in the book apply to experts other than engineers, the information and analysis presented focus only on engineers serving as experts. Through his analysis, Prichard dispels some of the worst images of the role of experts in civil litigation, an image that long predates the contemporary debate over litigiousness and the supposed litigation crisis (see Golan, 2004).

Prichard spent one year (April 1997 through April 1998) working as a paralegal in a law firm, “Wilson, Rice, Hunt, and Fisk” (“Wilson”), located in “Capital City.” The Wilson firm handles a mixture of personal injury, malpractice, product liability and wrongful dismissal cases. The author spent two to three days each week at the firm observing, working on cases as a paralegal, and reviewing files, and, in his book, he focuses attention on product liability cases, in which the firm represented both plaintiffs (30 percent) and defendants (70 percent). The cases Prichard observed and worked on at the Wilson firm included machinery defect claims, electrical malfunction claims (resulting in a fire and injury), claims against a lawn mower manufacturer, as well as some cases not related to the topic of the book (two medical malpractice cases and a wrongful dismissal case). In addition to the extended observation, the author conducted 38 interviews with attorneys outside the firm and with engineers who had experience serving as expert witnesses, as a check of the generalizability of what he had observed at the Wilson firm.

The book is structured around four chapters. The first chapter describes the Wilson firm and the author’s role and activities during his year there. Chapter 2, which is the heart of the book, focuses on the conflicts arising between lawyers and the engineers that they hire. Chapter 3 deals with the role of experts in evaluating cases. Chapter 4 looks at the preparation of cases for settlement and trial, and the book ends with a very brief conclusion.

No one will be surprised that lawyers and engineers bring very different approaches and goals to the kinds of questions that lead to litigation. Prichard shows that these conflicts play out somewhat differently depending on whether the engineer is “in-house” at a defendant company, an outside expert for the defense, or an expert for the plaintiff. While conflict is endemic to the lawyer-engineer relationship, it is most apparent between the lawyer defending a product and the engineer [*951] who designed or is responsible for improving it. The goal of the defense lawyer is to make “a clear-cut case that the product was safe,” while the engineer is constantly looking for “weaknesses, short comings, [and] problems with the product [in an effort to] make it . . . work better” (p.28); products fail all the time, but from the engineer’s perspective, this does not necessarily mean that the product is defective only that there might be ways to make it better (p.35).

More generally, engineers deal daily with nuance and uncertainty, while the lawyer who is thinking about the potential jury wants a definite yes and no (p.31); the engineer’s world involves a lot of gray, while the lawyer wants to present things as black and white (p.37). Lawyers often want engineers they retain to stretch their opinions in the direction that supports the lawyer’s side of the case. Engineers are often willing to stretch in the sense of where they place the emphasis in their opinions. For example, if the engineer’s analysis produces a range of likely results (e.g., vehicle speed in an accident reconstruction analysis), the engineer might be willing to pick a speed at the high or low end of the range depending on what will be most helpful to the attorney (p.39); engineers viewed stretching within the margin of error of their analyses as defensible. Engineers typically drew the line at lying or at making unequivocal statements in situations where there was substantial ambiguity. Lawyers were sensitive to the lines engineers drew, and often sought to limit the amount of information available to their engineer-experts in order to constrain the opinion the expert could give. A lawyer might also limit the engineer’s testing, either explicitly or by limiting the engineer’s budget, in order to avoid results that were negative for the lawyer’s case. Not surprisingly, engineers do not like being limited in these ways because they fear that failing to do adequate testing could put their reputations at risk (p.57). Engineers, particularly those working on behalf of a plaintiff, have concerns that they may not be paid if they are unwilling to deliver the opinion the lawyer is seeking (pp.41-43). For attorneys, a major concern is getting the engineer to communicate in a way that will appeal to, or be understandable by, a lay jury; engineers are used to working in a specialized milieu with its own language, far from the world of the courtroom or the jury. Prichard argues that the problem is greatest with engineers who are inexperienced at giving expert testimony, although lawyers also report problems with engineers who believe that their courtroom experience allows them to understand the issues better than the lawyer, and who then try to tell the lawyer how to try the case (pp.70-78).

For the lawyers, the central issue is usually finding the right expert. Both plaintiff and defense lawyers, with whom Prichard spoke, decried the use of “whores,” experts who, for a fee, were willing to say whatever the attorneys wanted them to say. Whores were prevalent, according to the respondents, but, not surprisingly, it was virtually always someone else who hired such experts (pp.59, 85-89). Importantly, experts play two distinct roles for lawyers, and those roles can lead to different experts. [*952]

The first role is to assist the lawyer in evaluating a case. On the plaintiff’s side, lawyers dealing with product liability (and other issues, such as medical malpractice) need an expert to help them decide whether a case is worth pursuing. Prichard describes one potential case that came to the Wilson firm while he was there, in which the question was whether the seatbelt had failed in a fatal auto accident. The attorney consulted with three different experts (a biomechanical engineer, an accident reconstructionist, and an engineer with specific experience evaluating seatbelt failures) before deciding not to pursue the case (pp.98-114). On the defense side, the screening stage involves deciding whether to settle or defend, and if defend, how to do so most effectively; inside engineers play a central role at this stage. A decision to seek a quick settlement may reflect either a judgment that a product had failed in an unacceptable way, or it may be a decision focused on the cost of defense (pp.121-125).

The second role of experts involves trial testimony. Prichard describes a process of “shopping for trial experts” (p.129), whereby plaintiffs’ lawyers seek out an expert who will testify in support of the theory the lawyer wants to advance at trial. Prichard reports that it is not uncommon for a lawyer to hire and then fire a series of experts before finding one who will support the lawyer’s theory. Importantly, this is not a process of trying to find an expert who will bend to the lawyer’s theory, but rather of finding an expert predisposed to the lawyer’s theory. Defense lawyers face a somewhat different problem: the need to work out a strategy with the client’s in-house experts who may be called as either fact witnesses or expert witnesses. Discussion with in-house experts is based on the attorney’s “local knowledge” about judges and juries (p.132). The defense lawyer also frequently hires outside engineers to testify in order to avoid a jury’s perception of the in-house expert as thoroughly biased in support of the defendant, who is the expert’s employer (p.153). One problem for the defense is that plaintiff’s central trial theory is not known, which means that the defense may have to hire multiple trial experts, some of whom will not be needed at the actual trial (pp.154-174). In addition to outside experts, the defense may use inside experts as consultants to cross-validate the outsider’s opinion (and vice versa); on occasion, the defense might hire two sets of outside experts to avoid being surprised at trial by the plaintiff, one for potential trial testimony and one to cross-check the work of the testifying witness (pp.177-180).

EXPERTS IN CIVIL CASES provides some interesting insights into the dynamics of the relationship between lawyers and the experts they hire. Whether those insights are specific to engineers, as opposed to medical, economic, survey, or some other kind of expert, is not considered in the book. However, my own research suggests that the broad patterns would hold up with other kinds of experts as well. The research in this book was conducted before the Supreme Court’s decision in KUMHO TIRE v. CARMICHAEL (1999), extending the principles of the DAUBERT (1993) decision concerning scientific testimony to cover other types of expert testimony, including that of engineers. We do not know whether Capital City is located within one of the [*953] states that has adopted DAUBERT and KUMHO, but one must wonder whether some of the patterns described by Prichard might have changed as a result of these two decisions. Lawyers I have interviewed in the last year report that they take much more care in hiring experts in the wake of DAUBERT, and federal discovery rules mean that a great deal of effort focuses on what goes into an expert’s report in order to avoid challenges under DAUBERT and KUMHO.

As interesting as this book is, one wishes that the author had worked harder at theorizing his analysis. Is there a strong theoretical framework that could have been applied to the rich data Prichard collected? For example, are Abbott’s insights in SYSTEM OF PROFESSIONS useful in this setting? Alternatively, could Shapiro’s (2003) analysis of conflicts of interest be extended to cover the kinds of conflicts that Prichard describes? Could the materials Prichard collected serve to recast some of the issues discussed under the rubric of principal-agent theory? A theoretical framework could have turned an interesting book into a work with important theoretical insights about conflicting professions, or some other broader phenomenon.

REFERENCES:
Abbott, Andrew. 1988. THE SYSTEM OF PROFESSIONS: AN ESSAY ON THE DIVISION OF EXPERT LABOR. Chicago: University of Chicago Press.

Golan, Tal. 2004. LAWS OF MEN AND LAWS OF NATURE: THE HISTORY OF SCIENTIFIC EXPERT TESTIMONY IN ENGLAND AND AMERICA. Cambridge, MA: Harvard University Press.

Shapiro, Susan P. 2003. “Bushwhacking the Ethical High Road: Conflict of Interest in the Practice of Law and Real Life.” 28 LAW & SOCIAL INQUIRY 87-268.

CASE REFERENCES:
DAUBERT v. MERRILL DOW PHARMACEUTICALS, 509 U.S. 579 (1993).

KUMHO TIRE v. CARMICHAEL, 526 U.S. 137 (1999).

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© Copyright 2005 by the author, Herbert M. Kritzer.

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ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION

by Stephen Breyer. New York: Alfred A. Knopff. 2005. 176pp. Cloth $28.00. ISBN: 0-307-26313-4.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: RushM [at] wlu.edu

pp.945-949

In ACTIVE LIBERTY, Justice Stephen Breyer “proposes a new path for the Post-Rehnquist Court” (Cohen 2005) by refining the arguments he set forth at his 2004 Tanner Lecture at Harvard, which was a refined version of his 2001 NYU Madison Lecture. Insofar as these predecessors to ACTIVE LIBERTY have already been scrutinized, a review of the book will also entail a response to prior reactions to the ideas Breyer develops in it.

A basic premise of the book is that, because rights and liberties can be regarded in both positive (what he calls “ancient”) and negative (or modern) terms, judges ought to consider both of these conceptions of rights when making decisions. This is an unassailably reasonable point.

Drawing upon the writings of Benjamin Constant (1819), Breyer argues that it is necessary to consider ancient, active liberty (that is, the liberty to engage in “an active and constant participation in collective power” (p.4)) as well as negative, modern liberty (freedom from state constraint), when considering the resolution of a case. Breyer contends the Constitution embodies an appreciation for, if not an outright commitment to, the promotion of active, ancient liberty. This active liberty is cast in terms of the “sharing of a nations’ sovereign authority among that nation’s citizens.” This, in turn contemplates a right to “examine the actions and accounts of those who administer government” (p.4).

His thesis, then, is that “courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts” (p.5), and therefore consider the consequences their decisions might have for the promotion of ancient active liberty.

A key element of Breyer’s analysis is his conclusion that an appreciation for active, ancient liberty imposes a duty on the courts to behave modestly—if not deferentially—when striking down legislation. There is a threefold basis for this. First, Breyer notes that courts should acknowledge that the many more heads present in the legislature are likely to be more circumspect than the considerably fewer heads present on any court (p.5). Accordingly, promotion of the Constitution’s democratic objective entails deferring to the interpretations of rights that arise from the collective wisdom of legislatures. Second, unless the legislature has perpetrated an egregious violation of rights, such deference in and of itself promotes the Constitution’s democratic objective by allowing the process of representative government to play out. Finally, promoting active liberty simply produces better law. He states that his vision

finds in the Constitution’s democratic [*946] objective not simply restraint on judicial power or an ancient counterpart of more modern protection, but also a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike . . . . increased emphasis on that objective by judges when they interpret a legal text will yield better law—law that helps a community of individuals democratically find practical solutions to contemporary social problems. (p.6)

Thus, Breyer’s theory of ancient liberty would seem at first to represent a call for judicial restraint. In this respect, one might expect that it would be welcomed by critics of judicial activism. Instead, the opposite has been the case. On more than one occasion, Breyer’s thinking has been cast as a response to Justice Antonin Scalia’s originalist theory of constitutional and statutory interpretation and judicial restraint (see, e.g., Cohen 2005). In some ways, it does seem that Breyer gets the better of Scalia—but not for the reasons that Scalia’s critics would like.

Breyer’s call for judges to be conscious of the political consequences of their decisions certainly is antithetical to Scalia’s vision of the Court. While Scalia criticizes such consequentialism, Breyer demonstrates nicely that 1) it is unavoidable, 2) it is perfectly reasonable, and 3) Scalia is just as consequentialist as Breyer himself.

Unless one (particularly Scalia) is willing to argue that the Framers conceived of rights only and strictly in modern, negative terms, Breyer’s contention that judges must look at rights in their entirety (both their ancient and modern elements) is unremarkable. In this regard, then, Breyer’s admission that he considers the impact of how he balances the ancient and positive aspects of rights should also be unremarkable unless one believes that the Constitution mandates a negative view of rights.

In this respect, Scalia (or a Scalian) would have no basis on which to criticize Breyer’s consequentialism. If one accepts that rights have ancient and modern components, then weighing each (or, correspondingly, ignoring the impact of weighing one aspect more heavily than the other) is certainly consequentialist.

Critics of Scalia’s originalism and emphasis on the plain meaning of the constitutional text will celebrate Breyer’s “purposive” approach to interpreting the Constitution. Focusing on the extent to which the Constitution promotes active liberty, Breyer asserts that judges should consider whether the manner in which they render a decision conforms to the Constitution’s goal of promoting participatory democracy.

Breyer’s supporters argue that his vision unshackles justices from the rigidity that a Scalian originalism would impose. However, there is something paradoxical to this interpretation of Breyer. If Breyer advocates fidelity to original purpose and Scalia advocates fidelity to original meaning, neither really escapes the criticism that they are looking at contemporary constitutional cases through an antiquated lens. Thus, while Breyer’s logic may render Scalia as consequentialist as the next judge, Breyer’s celebration of original purpose hardly distances him from Scalia’s own originalism.

To the extent that Breyer is concerned [*947] with promoting judicial modesty and deference so that the legislature can maximize its function and therefore manifest the participatory purpose of the constitution, his theory would be perceived as a theory of judicial restraint. But, if one probes, it becomes evident that this is anything but a constraint on judicial discretion.

For example, in his analysis of restrictions on campaign spending, he argues in favor of restraints because they promote a more egalitarian, participatory vision of democracy. Speech, in this regard, is a collective good that must be promoted and fostered. To strike down all spending restrictions on the assumption that money is speech would render political dialogue and conversation the province of the few loudest or best financed voices in the polity. Insofar as this would result in a general diminishment of the quantity and quality of political voices, he reasons that there is a practical and very democracy-reinforcing reason to support such restrictions on individual speech rights even though a critic might argue that such spending limitations are exactly the sort of speech restraint the Constitution forbids.

Still, Breyer responds that the courts must defer to the collective wisdom of legislatures. So long as the curtailment of the individual speech right is balanced by a corresponding enhancement of the collective caliber of political speech, Breyer says there is no reason to challenge the validity of the point at which the legislature chooses to strike the balance (p.49). If campaign spending restrictions favor collective speech more than individual speech, there are no constitutional grounds on which to challenge the restrictions. Breyer offers similar analysis of controversies concerning affirmative action, federalism, privacy and administrative law.

There is no question that Breyer offers us a thoughtful response to Scalia. In so doing, he broadens the groundwork on which we might base our interpretation of rights—even though his fidelity to an original constitutional purpose really does not seem to distinguish him from Scalia as much as he might suppose. If one originalism is as good as another, then the choice between Scalia’s originalism and Breyer’s really boils down to a choice of lenses through which to view the Constitution’s meaning.

More thought-provoking and troubling is the manner in which Breyer seems to place our constitutional fates in the hands of the legislators to whom he would defer. His willingness to second guess the motives behind Kentucky and Texas legislative decisions to display the ten commandments notwithstanding, Breyer’s assertion that legislators ought to be granted great leeway in striking the balance among competing conceptions of rights does not logically promote the competition and pluralism that his theory suggests:

I see the [Constitution] as creating a coherent framework for a certain kind of government. Described generally, that government is democratic; it avoids concentration of too much power in too few hands; it protects personal liberty; it insists that the law respect each individual equally; and it acts only on the basis of law itself. (p.8)

In fact, some of Breyer’s reasoning [*948] seems to result in exactly the opposite outcome. His reasoning in favor of campaign spending is a case in point.

While seeking to promote collective speech at the expense of the voices of particularly loud individuals, Breyer fails to see that trusting the government to regulate the volume of speech in the manner set forth, for example, in the Bipartisan Campaign Reform Act actually played right into the hands of the incumbent powers that have a clear incentive to control threats to their security.

This point was not lost on Scalia who pointed out in MCCONNELL v. FEC that the so-called campaign reform act was clearly an incumbency protection act. Accordingly, the egalitarian vision that underpins this aspect of Breyer’s reasoning ironically renders the participatory democracy that he would promote less potent. Insofar as the legislative experts are able to justify the balance they strike between modern (individual) and ancient (collective) visions of the speech rights, they are able essentially to mute those potent voices in the polity that would be most capable of challenging them. In this respect, Breyer’s promotion of ancient liberty actually does more to concentrate political power than the promotion of its modern antithesis.

Thus, on the one hand, Breyer seems to call for a broad deference to the legislature that plays into its motives for self-preservation, or what John Hart Ely (1980) would have described as “self-dealing,” or Sam Issacharoff and Rick Pildes (1998) describe as a political “lockup.” On the other hand, Justice Breyer’s desire to promote better law and practical solutions to difficult contemporary social problems justifies the sort of judicial meddling in social policies that enkindles Scalian calls for adherence to the plain meaning of the text and nothing more.

In the end, there is no question that this is an important work. A sitting member of the Supreme Court has offered a succinct view of his vision of the constitution, rights, democracy and the role of a judge. In so doing, Justice Breyer offers a thoughtful response to Justice Scalia’s originalism. As well, Breyer’s discussion of ancient and modern liberty offers a fresh perspective for constitutional interpretation. Nonetheless, despite celebrations by some, Breyer does not get the best of Scalia. He only battles him to a draw. Breyer’s broader vision of rights ought to give Scalia pause. But, Breyer’s own originalism and its capacity to justify judicial meddling in the democratic process, in the end, undermines his calls for modesty and deference.

REFERENCES:
Breyer, Stephen. 2004. Tanner Lecture, “Our Democratic Constitution” delivered at Harvard University 17-19 November 2004. Available: http://www.supremecourtus.gov/publicinfo/speeches/sp_11-17-04.html . Breyer gave an earlier version of the speech as the Madison Lecture at New York University on 22 October 2001. Available: http://www.supremecourtus.gov/publicinfo/speeches/sp_10-22-01.html .

Cohen, Adam. 2005. “Justice Breyer Proposes a New Path for the Post-Rehnquist Court.” THE NEW YORK TIMES, Page A20, 26 September. [*949]

Constant, Benjamin. 1819/1988. THE LIBERTY OF THE ANCIENTS COMPARED WITH THE LIBERTY OF THE MODERNS IN POLITICAL WRITINGS. English Translation: Biancamaria Fontana (ed). Cambridge: Cambridge University Press.

Ely, John H. 1980. DEMOCRACY AND DISTRUST. Cambridge: Harvard University Press.

Issacharoff, Samuel and Richard Pildes. 1998 “Politics as Markets: Partisan Lockups of the Democratic Process.” 50 STANFORD LAW REVIEW 643-717.

CASE REFERENCE:
MCCONNELL v. FEC, 540 US 93 (2003).

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© Copyright 2005 by the author, Mark Rush.

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LAW AND INTERNET CULTURES

by Kathy Bowrey. Cambridge: Cambridge University Press, 2005. 250pp. Paperback. £17.99 / $21.99. ISBN: 0521600480.

Reviewed by Debora Halbert, Department of History and Political Science, Otterbein College. Email: DHalbert [at] otterbein.edu.

pp.942-944

One of the hot areas for contemporary analysis is the impact of law on the Internet and the impact of the Internet on legal structures – topics taken up in LAW & INTERNET CULTURES. The nexus between law and the Internet has given rise to concerns regarding privacy, piracy, intellectual property and global governance. Kathy Bowrey’s analysis of the relationship between law and the Internet examines the relationship between Internet cultures and the law internationally, with a good deal of focus on the United States.

Bowrey employs a narrative paradigm to investigate the legal issues emerging from contemporary uses of technology. She investigates the discursive structure of Internet cultures by looking at “how stories are a form of power and knowledge [and] to explore the interplay between stories and mechanisms of power” (p.16). As part of the process of describing the narrative complexity of power, Bowrey maps global cultural complexities, “exploring the processes, the understandings of power, historical position and influence related to Internet cultures (p.44). She has set herself a very difficult task.

Throughout the book, Bowrey describes important debates surrounding the information age, and she introduces the reader to key players and organizations responsible for the structure and function of the Internet. However, she looses sight of her storytelling paradigm in the details of each chapter and only on occasion tries to make a larger argument regarding the narrative power of her examples. Although each chapter begins with a story, they serve primarily as rhetorical devices for her chapter development and are not as useful in highlighting the power of narrative in the development of Internet culture or law.

Bowery describes her book as a journey (p.45) where interesting facts may be learned along the way, but the chapters are never linked into a larger narrative. Furthermore, each chapter begins and ends in very different places, and few chapters offer conclusions to tie together the varied observations made along the way. The same is true for the book as a whole – there is no conclusion. It simply ends, and one is left wondering what the larger narrative that should emerge from the text might be. If one thinks of this book as a journey and not as an argument, it is easier to understand why Bowery offers no summary and conclusion – however, if a narrative paradigm is the goal of the book, clarification of what the ultimate narrative analysis might look like would have been quite useful.

Bowrey sets up most chapters within a story that allows her to make a point about Internet law and culture. For example, Chapter Two introduces the reader to Mandeville’s TRAVELS and [*943] uses this 14th century text to argue that it is difficult to make unknown places “real” (p.29). Bowrey argues that Mandeville’s fantastic tales are similar to those exaggerating the abilities of the early Internet to construct a techno-utopian vision well beyond the practical reality. Strangely, this chapter includes a series of tables mapping a variety of economic indicators associated with early Internet growth, but these tables (with the exception of Table 5) are not mentioned in the text or included in the story Bowery is trying to tell.

A similar narrative strategy is used in Chapter Three, which is set within the context of a science fiction short story by Arthur C. Clarke where computer programmers help an ancient sect end the world. This story highlights the responsibility of computer programmers toward their creations. Specifically computer programmers have devised and enforced the Internet architectures that govern the system, and, as the high priests of the Internet, they should understand their responsibility. Bowrey believes we need to move beyond the conventional stories about the Internet’s development and culture because they tend to disguise important questions about power and governance (p.53).

Chapter Three is especially effective in employing the narrative strategies set up in the early part of the text. Bowrey suggests that it is important to recognize the institutional aspect of Internet development, despite the conventional focus on the lone individual as the source of innovation (p.54). The lone individual narrative is simply not true, and to understand Internet governance one must look to institutional power (p.54). Bowrey provides a very interesting comparison between ICANN and IETF that illustrates the power of open decision-making and the possibility of Habermasian free speech (p.62). She then shifts to a discussion of patents and the threat they pose to open standards. However, she offers no conclusion to tie these issues together, and by the end of the chapter, the focus on narratives has been lost.

Chapter Four employs George Orwell’s 1984 to frame a discussion about open source and free software. Bowery provides a good overview of the complexities in the open-source debates, the resistance by proprietary software developers to free software, and the emergence of a community of programmers dedicated to the concept of free software. She suggests that as long as the underlying legal regime is property oriented, open source and free software will rely upon this proprietary paradigm. If they depend upon a paradigm of private property, then the language developed by Lawrence Lessig regarding the commons should be viewed suspiciously (p.99). Specifically, there is nothing new going on in the open source and free software movement, and Bowrey argues that “free software and free culture . . . is analogous to the freedom celebrated in the Chestnut Tree Café” of Orwell’s dystopian future (p.100).

Chapter Five takes up the Microsoft anti-trust case and the general hatred of Microsoft as a company. Bowrey suggests that Microsoft is an “archetype of the information economy” which helps explain the dislike for the company despite the fact there are information age businesses bigger and at least as aggressive as Microsoft that do [*944] not generate the same sort of hatred (p.104). In this chapter, Bowery discusses the Microsoft litigation and then considers issues related to globalization, including the outsourcing of jobs (in which Microsoft is complicit). Again, the chapter ends without a conclusion that might connect the argument together.

Chapter Six describes the narratives surrounding music piracy and suggests that the political implications of the piracy narrative help structure court decisions in the U.S. regarding file sharing. Unlike other arguments that emphasize the importance of intellectual property debates in the peer-to-peer battles, Bowery suggests that intellectual property controversies serve to distract our attention from the much more important issue of using trademarks to create global branding (p.164). Her position is refreshing and useful for copyright scholars with an interest in the Grokster and Napster battles.

The final chapter considers the issues of resistance and possibility for change. Bowrey describes the emergence of a global civil society and debates over the meaning of citizenship. She singles out the United States as a force standing against progressive change and one that supports draconian intellectual property and free trade laws around the globe. Although she addresses issues related to resistance and civil society, the chapter ends abruptly with brief comments about the importance of law to social change. The abrupt end, without a larger conclusion, leaves the entire text missing a key aspect of its own narrative – how to pull the story back together. References and connections to the larger project would provide a more compelling conclusion than that offered in the final chapter.

The book has clear strengths and weaknesses. In terms of weaknesses, Bowrey forgets her own narrative paradigm and often stops short of the crucial analysis her case examples desperately need. She does a nice job of reviewing construction of the Internet and its governing politics that are important to understanding the status quo. Overall, the book’s merits prevail, but the entire project would have been stronger if the concept of telling stories had led to a more compelling narrative connecting the various strands into a single text.

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© Copyright 2005 by the author, Debora Halbert.

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COURTS CROSSING BORDERS: BLURRING THE LINES OF SOVEREIGNTY

by Mary L. Volcansek and John F. Stack, Jr. (eds). Durham, North Carolina: Carolina Academic Press, 2005. 264pp. Softcover. $28.00. ISBN: 1-59460-055-4.

Reviewed by Albert P. Melone, Professor Emeritus, Department of Political Science, Southern Illinois University Carbondale. Email: almelone [at] verizon.net

pp.937-941

This is an edited book that brings together in one highly readable place a crisp and engaging look at transnational courts in today’s global world. It is ideally well-suited for those who hope to introduce their students to the study of comparative courts and international law, whether the focus group is undergraduate or graduate students of public law, comparative politics, or international relations. Faced with the empirical evidence of the growing importance and number of dispute resolution venues around the world, it has become increasingly clear in recent years that the traditional concept of national sovereignty is in need of revision. Yet, Mary L. Volcansek and John F. Stack, Jr., wearing the twin hats of editors and contributors, elaborate even further. They argue as early as page 9 that giving up a modicum of sovereignty is a small price to pay for advancement of human rights and free trade that will benefit both rich and poor countries. Somewhat later, at page 21, they argue further that scholars of international relations should better appreciate how transnational courts apply hierarchical rules and regulations to the chaos of international relations.

Although some readers may disagree with the normative predisposition expressed by Volcansek and Stack, this should not cause them to put this modestly priced paperback volume down. The nine contributors to this 10 chapter book provide eye-opening descriptions and in most cases thought-provoking explanations of the new realities. Although not completely congruent, the collection is organized first around trade matters and then human rights and the attendant subjects of courts, alternative dispute resolution, universal criminal jurisdiction, and the punishment of rape.

In her chapter on “Courts and Regional Trade Agreements,” Mary Volcansek makes a convincing case that if neo-liberal trade theorists are correct in arguing the inevitability of continuing and intensifying competition, it follows that conflicts are a likely consequence. Therefore, the need for dispute resolution mechanisms with courts is likewise a necessary fact of political life. Artfully adapting the conceptual framework of others to make her own point, Volcansek characterizes the soft versus hard form of legalism as the difference between constant negotiation and diplomacy on one hand, and rule making and certainty on the other. Indeed, this is the lesson gleaned from the European Union experience. Clearly, greater compliance is gained through hard legalism than through the more familiar but uncertain mode of continuing diplomacy. She points out, as do others, that non-state actors seek the certainty of hard legalism as a way to [*938] lower the costs of cross-boundary transactions.

An excellent follow-up to the topics raised by Professor Volcansek is found in Miguel Poiases Maduro’s chapter centering on the European Court of Justice (ECJ) and the issue of sovereignty. He contrasts the traditional conception of sovereignty that is defined as one possessing an autonomous and hierarchical legal order with the actual facts on the ground. Although the author does not make the point himself, there is a parallel with what John Marshall taught us in MCCULLOCH v. MARYLAND (1819) about the American constitutional design and what is transpiring in Europe; the legitimacy of the ECJ is derived from the people and not simply from the national qua state sovereigns. This is at any rate what Maduro means by European legal pluralism. Integral to that pluralism has been the ECJ’s delicate navigation of the treacherous waters around the difficult shoals of state sovereignty. He does a fine job of explaining the forces at work that have made that journey possible. These include the role of state and non-state actors possessing cross-border business interests to circumvent the decisions of national political and legal institutions. Yet, it is incorrect to conclude that the ECJ has achieved hegemony over state institutions. Maduro characterizes the relationship as “competitive sovereignty.” It is a matter of equal claims on sovereignty that possess significant pragmatic reasons as well as normative justifications making the EU system possible.

Joseph Jupille’s chapter assesses how the ECJ has balanced trade, environmental protection, and politics. His analysis begins with an outline of expectations, employing the approaches of neofunctionalism and intergovernmentalism. Neofunctionalism centers on the proposition that transnational market actors drive the dispute resolution process and subsequent rule-making at the expense of member-state government actors. Intergovernmentalism, as an operative concept, regards EU member states as most important with the ECJ attending to member state preferences. The author’s quantitative data and doctrinal analysis lead him to a somewhat ambiguous conclusion. The quantitative data tend to vindicate the neofunctional perspective. But Jupille’s doctrinal analysis reveals what he calls a “more nuanced picture” (p.73), which is consistent in some measure with the intergovernmental perspective. In other words, while transnational business interests view environmental restrictions on trade as inconsistent with EU law, the justices of the ECJ have ruled in a number of important cases that environmental protection trumps free trade. Yet, in the overwhelming number of opinions the court upholds EU laws over national laws in those instances of environmental/trade conflict. The author concludes that the blurring of the lines among ecological, economic, and political borders is something to expect in the future.

Although hardly fatal, I think the editors erred in positioning David O’Brien’s account of dispute resolution processes under the NAFTA agreement two chapters away from the preceding chapters concerning economic trade. O’Brien’s contribution is an ideal follow up to the expositions on the European experience. The distinction between [*939] economic conflicts and human rights disputes is complicated enough without asking readers to move among two or three levels of abstraction simultaneously. In any event, we learn from O’Brien that under NAFTA, unlike EU law, ad hoc quasi-courts are established to adjudicate binational disputes. The dispute resolution systems seems to fit more closely Martin Shapiro’s (1981) conception of the ideal triadic relationship wherein the disputing parties are better situated to choose both the norms for settling their dispute and for selecting those who will be making the decisions. O’Brien does a fine job in describing the jurisdiction and processes of these panels and relates his empirical findings about decisions involving anti-dumping and countervailing duties disputes. These five-person NAFTA panels are reminiscent of the arbitration process widely practiced in the United States; they possess considerable virtue as expeditious handlers of disputes, although the finality of their decisions are limited to decisions of administrative agencies but not the laws of the United States, Canada, and Mexico. Without taking a position himself, O’Brien alerts readers to an underlying problem of legitimacy. NAFTA, as a piece of U.S. legislation, is constitutionally suspect because it was promulgated, not under the treaty-making authority of two-thirds vote of the Senate, but rather under what is euphemistically dubbed, fast-track legislation.

With the sole exception of the O’Brien selection, four of the last five chapters center on human rights. Doris Marie Provine presents a report of her research findings on how the European Court of Human Rights (ECHR) has treated the non-discrimination provision (Article 14) of the European Convention of Human Rights. She provides a fine primer on how this institution, located at Strasbourg in France, fits historically with other European institutions and how it has become the place to go when member states violate human rights. Provine describes the court’s growing workload, but she is more interested in how it has positioned itself as “the conscience of Europe” (p.88). On the basis of this research it is fair to conclude that the ECHR has exercised considerable self-restraint when adjudicating non discrimination allegations. It has assumed this role by balancing the right of individuals to be free of discrimination against the state’s discretion in policy making.

In contrast to the European experience, the story of the institutional development of human rights in Latin America, told by John F. Stack, Jr., is one of struggle, if not disappointment. Yet, the author makes an interesting case for progress and promise. Stack nests his analysis in the conceptual framework provided by Thomas Risse, Stephen Ropp, and Kathryn Sikkink (1999). They attribute the establishment of transnational human rights organizations to first important ideas, followed by a collective sense of appropriate norms that eventually leads to changing identities, interests, and behavior patterns among citizens and states. The 1948 American Declaration of Human Rights is the principled ideal that lays the groundwork for the important but incomplete efforts of the Organization of Human Rights Inter-American Commission established in 1959. Functioning largely as a consciousness-raising body, by 1971 the Commission was able to focus member states on human rights as one of its [*940] central concerns. The Commission’s activities were in turn reinforced by the rise of nongovernmental organizations, such as Amnesty International and Americas Watch. These groups link otherwise weak and isolated individuals to broader political support outside the confines of repressive national regimes. Then, in 1979, for those states accepting its compulsory jurisdiction, the Inter-American Court for Human Rights was established. Due in large part to its careful attention to the authority of both states and individuals, this body has created the institutional authority to act as a strong moral voice for human rights values and norms. Stack does a fine job describing and interpreting the politics surrounding how these developments took place. In the end, however, he is well aware that the movement toward transnational human rights institutions in Latin America has not realized the laudatory results compared to Europe with its paradigmatic cross-boundary courts. Yet, given the unique history of inter-governmental relations in Latin America, Stack remains cautiously optimistic.

Donald W. Jackson performs an important intellectual service by presenting a clear account of the historical background and fundamental issues involved in the exercise of universal criminal jurisdiction, especially with respect to the controversial International Criminal Court. He carefully describes the absolute and relative meaning of the sovereignty concept. The former is traceable to anti-democratic roots and is inconsistent with U.S. constitutional principles. The latter is consistent with the hopes of those visionaries at the end of World War II who backed the creation of the United Nations and is a view shared by most Europeans, although many Britains have found it a hard pill to swallow. Jackson traces the precedents for the creation of universal criminal jurisdiction by invoking nineteenth century international piracy and slavery conventions, the post-World War II Nuremberg trials, the adoption of the UN Genocide Convention, the Geneva Convention of 1949, the Eichmann trial, and the 1984 UN Convention against Torture and other cruel or inhuman treatment or punishment. He then details attempts by prosecutors in particular states, including Spain, Senegal, and Belgium, to exercise jurisdiction over non-nationals for violating international human rights’ norms. Jackson explains why these attempts at exercising jurisdiction ultimately failed—leading him to conclude that the International Criminal Court is probably the best solution. He then briefly discusses the Princeton Principles on Universal Jurisdiction that is more expansive than the Rome Statute for the International Criminal Court. Underscoring one of the premises for the entire book, Jackson ends his fact-packed essay with his own plea to American political scientists. He wants us to create more space in our intellectual tool boxes for understanding the connection between state-based courts and regional/transnational institutions. Of course, he is correct.

In the book’s last chapter Kimi King and James Meernick tackle the question of whether the International War Crimes Tribunal for the Former Yugoslavia (ICTY), established by the UN Security Council, has advanced the principle that rape is an unacceptable instrument of war. They proceed by first describing the [*941] political uses of rape through the centuries. Second, they outline how and why the ICTY was established for war crimes committed by soldiers and their Serbian, Bosnian, and Croatian commanders. Employing OLS regression techniques, the researchers then assess the relative significance of prosecutions for rape, command and control, and crimes against humanity, as each relates to the length of sentences imposed by the tribunal. Although the researchers do not find support for the claim of feminist critics that the ICTY has not done enough to protect women’s rights and that it has been ineffective, they conclude nonetheless that the inclusion of rape charges is not as important as other substantive charges, including genocide and crimes against humanity. These findings are interesting, but King and Meernick analyze a total of only 29 cases. It is unusual and commonly problematic to employ regression analysis with so few cases. This is especially the case because the researchers might have, as an alternative, supplied simple percentage or correlation matrix tables to help readers ascertain first the bivariate relationships and then, for heuristic purposes, analyze the regression results as they do. As more decisions are rendered by the ICTY, a variety of regression related techniques may be used with greater confidence.

These days too many edited books fail to include footnotes, bibliographies, tables of cases, and indexes. Gratefully, this book is a notable exception. Enhancing the learning process, each of the ten chapters include reference citations as footnotes (as in the bottom of the page where the notations appear), and not at the end of the chapter or all together at the end of the book as has become fashionable in modern book publishing. The authors also include a complete bibliography, a table of cases, and an index, three additional elements found in quality books but sorely lacking in much of modern publishing. In sum, COURTS CROSSING BORDERS is a quality effort that deserves careful reading. Enhancing a deeper understanding of this timely topic, it is a book that can be profitably studied by students, scholars, and the curious public.

REFERENCES:
Risse, Thomas, Stephen C. Ropp, and Kathryn Sikkink. 1999. THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE. Cambridge: Cambridge University Press.

Shapiro, Martin. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: University of Chicago Press.

CASE REFERENCES:
MCCULLOCH v. MARYLAND, 17 US 316 (1819).

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© Copyright 2005 by the author, Albert P. Melone.

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CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT

by Judithanne Scourfield McLauchlan. New York: LFB Scholarly Publishing, 2005. 266 pp. Cloth $70.00. ISBN: 1-59332-088-4.

Reviewed by Paul M. Collins, Jr., Department of Political Science, University of Houston. E-Mail: pmcollins [at] uh.edu.

pp.933-936

Over the past 40 or so years, a veritable cottage industry has spawned within the field of judicial politics, focused on examining the motivations and effectiveness of amici curiae in the courts. Typically, this research involves analyzing the participation and influence of interest groups, the U.S. Solicitor General, and, to a much lesser extent, state attorneys general. Surprisingly little attention has been dedicated to investigating the amicus participation of members of Congress (but see Heberlig and Spill 2000; Solberg and Heberlig 2004). In CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT, Judithanne Scourfield McLauchlan attempts to fill this void. Combining both qualitative and quantitative methodologies, the author pursues four objectives in the study (p.2): 1) determining how often and which members of Congress participate as amicus curiae; 2) establishing which types of cases attract congressional amici; 3) uncovering the motivations for congressional amicus participation; and 4) analyzing the effectiveness of congressional amici. Taken as a whole, McLauchlan achieves these goals, although establishing the effectiveness of congressional amici constitutes the least compelling part of the book.

In the first chapter, McLauchlan provides readers with a useful history of amicus participation, from its incarnation in Roman law to its current adversarial role in American jurisprudence. Although largely recounting the seminal work of Krislov (1963), this chapter is, nonetheless, important for those unfamiliar with the evolving role of friends of the court, particularly as it establishes the lack of consensus as to whether amicus briefs influence the decision making of U.S. Supreme Court justices, especially those briefs filed by members of Congress. McLauchlan also analyzes the frequency of congressional amicus participation in the Court, uncovering that, relative to other amici, congressional participation is rare, occurring in only seven percent of cases during the 1986-1997 terms.

In Chapter Two, McLauchlan tackles the question of which members of Congress participate as amicus curiae. She finds that congressional amici generally reflect both the partisanship of Congress (53% Democrat, 46% Republican) and the composition of legislature as a whole (83% House, 17% Senate). Further, McLauchlan reveals that members of Congress overwhelmingly participate as amici in coalitions, whether they are coalitions of other congresspersons or interest groups. This latter finding is particularly fascinating, suggesting that the decision to file briefs originates [*934] outside of Congress, when organized interests contact members to do so.

In Chapter Three, the author examines the types of cases in which members of Congress file amicus briefs and devises a typology of congressional participation (p.80). Members of Congress most frequently participate in cases that challenge executive branch execution and interpretation of federal law (21%), involve “hot button” issues (17%), touch on home state concerns (14%), implicate electoral laws (13%), or allow the members to enter into a dialogue with the Court regarding congressional intent in passing legislation (12%). Of course, these categories are not mutually exclusive, and the author correctly notes this. Unfortunately, however, it is not made clear how the decision was made to categorize certain types of cases into one typology over another. For example, it is unclear why RUST v. SULLIVAN (1991), which involved reproductive rights, is categorized as a “hot button” issue and not a case involving a congressional colloquy with the Court; in it, two congressional briefs were filed offering divergent interpretations of congressional intent (p.96). Further, it is nearly impossible to discern how cases were determined to involve “hot button” issues as a whole (salience, after all, is relative concept).

One will find Chapter Four, in which McLauchlan examines congressional motivations for filing amicus briefs, to be the most interesting and well-executed chapter of the book, despite its brevity. Relying primarily on interviews with active and former members of Congress and their staffs, the author illustrates the power of “soaking and poking” in the style of Fenno (1978) and Perry (1991) to effectively uncover underlying motivations that are not easily quantifiable. She begins by establishing that members of Congress do not take the decision to file a brief lightly, and instead treat it similarly to deciding to co-sponsor legislation, as both activities require members to make a public commitment to the development of law within a particular issue area. Following this, McLauchlan examines congressional motivations, developing five typologies (p.146). The most frequent motivation is position taking, in which members file to enhance election prospects. In so doing, they are able to demonstrate support of key issues to both their constituents and interest groups, hoping to be rewarded at election time. The second dominant factor is institutional patriotism, in which members file briefs to defend or enhance congressional powers. Lesser factors include participating in order to promote policies that members were intimately involved in passing, to protect constituent interests, and, less frequently, to enhance their reputations in Congress, including joining colleagues’ briefs as a type of logrolling (note that, members of Congress are explicit that no “vote trading” occurs in which a member joins a colleague’s amicus brief in exchange for a vote on a bill). Interestingly, seeking to influence the Court is rarely discussed as a motivation for filing a brief. The chapter concludes appropriately with a discussion of why some members of Congress choose not to participate, concluding that the primary reasons are that they believe it is inappropriate to do so in a separation of powers system (i.e., to preserve judicial independence) and that they come from marginal districts in which position taking on controversial [*935] issues of public policy is generally avoided unless absolutely necessary.

In Chapter Five, McLauchlan examines whether congressional amicus briefs are effective in influencing the Court. Here she travels down familiar territory, reporting citation counts to congressional briefs in opinions and win/loss ratios with little regard for other factors that influence the justices’ decision making. This analysis constitutes the weakest and least persuasive part of the book. McLauchlan finds that the justices cite congressional briefs in 10% of cases, a relatively low number compared to Kearney’s and Merrill’s (2000) analysis of all amicus briefs, in which citations were found in 28% of cases in which amici participated. With regard win/loss ratios, the author finds that the Court ruled in favor of the position argued by congressional amici (in cases with congressional briefs filed in support of only one side) in only 54% of cases, thus concluding that congressional amici are not very influential. Although McLauchlan does put these figures in perspective with other third-party repeat players, such as the Solicitor General and ACLU, her analysis would benefit from more rigorous consideration of circumstances in which congressional amici are more or less influential. At the end of the chapter, the author moves back to a qualitative methodology to determine effectiveness of congressional amici, relying on interviews with former Supreme Court law clerks. As in the previous chapter, this is particularly compelling and well-executed analysis. Here the author corroborates her argument that congressional briefs are generally non-influential and are often not viewed as credible information sources. For example, one former clerk mused that congressional amicus arguments have little value in highly salient cases. Indeed, “[t]he last place one would look for dispassionate legal advice is from a politician” (p.191). Finally, McLauchlan examines the bench memoranda of Thurgood Marshall to determine how often congressional briefs were cited in law clerks’ memos. Again, she finds little evidence of congressional influence—congressional briefs were cited in only 10% of memos, compared to 26% for other amici.

In the final chapter, McLauchlan reviews her major findings and discusses some of the broader implications of the research, particularly as they relate to legislative-judicial relations in a separation of powers system. In addition, she offers a number of related research questions (see also p.29), such as whether congressional amicus participation has significant implications for judicial independence.

Taken as a whole, the book makes a valuable contribution to the literature on Congress-Court relations, although it does have a number of flaws. Although McLauchlan makes excellent use of qualitative methodology throughout the book (in the form of interviews and case studies), the quantitative analysis is weakened by several deficiencies. First, and most notably, on several occasions the author does not explain how her data were assembled, making it particularly difficult to evaluate her conclusions. For example, McLauchlan does not explain how Figure 4.1 (p.147) was derived, other than to say it “was developed after careful analysis of the data gleaned in the longitudinal study and the interviews with Members of Congress and their [*936] staff” (p.142). For a discipline that stresses the need for reliable and replicable analyses, this and other quantitative sections of the book fall well short of standard practices. Second, there is scant discussion of assorted tables and figures and what they tell us. For example, two tables and two figures are presented with little accompanying discussion (pp.39-41). Third, in analyzing the effectiveness of congressional amici, McLauchlan “hypothesizes” several relationships. Yet, these “hypotheses” are seriously under-developed. For example, she offers at least nine hypotheses on a single page (p.166), devoting little attention to their development or to the theoretical reasons for the expected relationships. Finally, the author misses two important works on congressional amicus participation by Solberg and Heberlig, that could have strengthened her analysis, particularly in developing and testing of hypotheses related to motives for filing briefs and their ultimate influence on the Court (Heberlig and Spill 2000; Solberg and Heberlig 2004).

Despite these concerns, CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT makes an important contribution to our understanding of Congress-Court relations, particularly through its use of in-depth interviews with current and former members of Congress, their staffs, and Supreme Court law clerks. In addition, the book offers a treasure trove of new research questions, making it worthwhile reading for scholars interested in legislative-judicial relations, interest group participation in the courts, and congressional politics more broadly.

REFERENCES:
Fenno, Richard F. 1978. HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS. Boston: Little, Brown and Company.

Heberlig, Eric, and Rorie Spill. 2000. “Congress at the Court: Members of Congress as Amici Curiae.” 28 SOUTHEASTERN POLITICAL REVIEW 189-212.

Kearney, Joseph D., and Thomas W. Merrill. 2000. “The Influence of Amicus Curiae Briefs on the Supreme Court.” 148 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 743-855.

Krislov, Samuel. 1963. “The Amicus Curiae Brief: From Friendship to Advocacy.” 72 YALE LAW JOURNAL 694-721.

Perry, H.W. Jr. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge: Harvard University Press.

Solberg, Rorie L. Spill, and Eric S. Heberlig. 2004. “Communicating to the Courts and Beyond: Why Members of Congress Participate as Amicus Curiae.” 29 LEGISLATIVE STUDIES QUARTERLY 591-610.

CASE REFERENCES:
RUST v. SULLIVAN, 500 U.S. 173 (1990).

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© Copyright 2005 by the author, Paul M. Collins, Jr.

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LOWERING THE BAR: LAWYER JOKES AND LEGAL CULTURE

by Marc Galanter. Madison, WI: Univeristy of Wisconsin Press, 2005. 430pp. Cloth. $45.00. ISBN 0-299-21350-1.

Reviewed by Brian Z. Tamanaha, St. John’s University School of Law. Email: tamanahb [at] stjohns.edu

It is rare to find a book that skillfully weaves together empirical data, sociological analysis, and broad knowledge about the legal profession, in a pleasantly readable package that delivers multiple insights about contemporary legal culture in the United States. It is unique to find a book with all of these qualities that is also funny. Marc Galanter manages to pull off this feat in LOWERING THE BAR.

Did you hear about the post office having to cancel its commemorative issue honoring lawyers? It seems that it was too confusing—people didn’t know which side of the stamp to spit on. (p.198)

His basic idea was simple, yet brilliant and executed to perfection: the quality and quantity of lawyer jokes, with particular attention to changes manifested over time, provide a rich empirical body of material from which to glean prevailing views about lawyers, and this in turn says something about the role of law and lawyers in society. Information about public attitudes toward lawyers is usually found in public opinion polls, research findings on views of lawyers, newspaper reports, and popular culture – film and television portrayals, and popular novels. Galanter draws upon and refers to all of these sources as well, but adds an exhaustive examination of the entire corpus of lawyer jokes to the mix, going back several hundred years, though concentrating mainly on the last three decades. The crucial ingredient that helps it all come together is the vast body of knowledge Galanter has produced and accumulated in the past three decades as one of the preeminent scholars of the legal profession. He uses this combination to produce a portrait of surprising depth. Who would have thought that so much serious information could be found in jokes?

A doctor and a lawyer in two cars collided on a country road. The lawyer, seeing that the doctor was a little shaken up, helped him from the car and offered him a drink from his hip flask. The doctor accepted and handed the flask back to the lawyer, who closed it and put it away. “Aren’t you going to have a drink yourself?” asked the doctor. “Sure, after the police leave,” replied the attorney. (p.160)

Galanter tracked down and compiled every lawyer joke he could find. He pared the total down to about 300 jokes, organized into themes and recited individually, with commentary. Part One sets out the enduring themes of lawyer jokes—Chapter One: Lies and Stratagems; Chapter Two: Economic Predator; Chapter Three: Playmates of the Devil; Chapter Four: Lawyers as Fomenters of Strife; Chapter Five: Demography of the World of Lawyer Jokes. Part Two categorizes jokes that [*930] have arisen since about 1980—Chapter Six: Betrayers of Trust; Chapter Seven: Morally Deficient; Chapter Eight: Objects of Scorn; Chapter Nine: Death Wish Jokes. Part Three reflects on prevailing views about lawyers and justice in America—Chapter Ten: Enemies of Justice; Chapter Eleven: Only in America?

[A lawyer explaining his fees to his client] “If you want justice, it’s two hundred dollars an hour. Obstruction of justice runs a bit more.” (p.238)

In each Chapter, Galanter presents jokes interspersed with commentary of varying lengths, from a single paragraph to many pages long. Usually the jokes are comprised of a string of different ones on selected sub-themes; a few times he recites successive versions of the same joke to allow readers to observe its evolution. The commentary offers background, indicates whether it was a joke original to lawyers or converted to lawyers from some other source, reflects on the assumptions underlying the joke, and reveals what it implies about lawyers. This information is often quite telling, as when he informs us that the stamp joke (the first one above) was originally told of Hitler and Stalin, and only later was told of lawyers. At the end of most chapters, and several times at the beginning as well, Galanter offers several pages of information and analysis on what can be learned about the legal culture from the jokes. The final Chapter is pure commentary, making quite serious points to conclude this book filled with jokes.

Q: Why are lawyers buried twenty-five feet under ground?
A: Cause deep down they’re really nice guys. (p.215)

To understand how this book works, think of the jokes as butterflies carefully pinned to the pages in a thought-out order, with written observations in between, noting origin, family, and other distinguishing characteristics, followed at the end of each sub-group by extensive insights on their place in nature. The butterflies are interesting to look at and necessary support for the conclusions drawn, but all the crucial information is delivered in the commentaries. That holds for this book as well. Galanter’s commentaries are ambitious forays into a variety of subjects, ranging from the lawyer’s relationship with clients, to the implications of legalization of society, the role of lawyers in secularized society, the consequences of the increase in the number of lawyers since the 1960s, the continuing lack of lawyers for the poor, the differentiation of the legal profession, and the role lawyers play in securing justice.

A businessman was involved in a lawsuit that dragged on for years. One afternoon he told his attorney, “Frankly, I’m getting tired of all this litigation.” The lawyer replied, “Nonsense. I propose to fight this case down to your last nickel.”(p.133)

Galanter’s core thesis is that a dramatic increase in the quantity and nastiness of lawyer jokes has occurred since about 1980 – particularly jokes that scorn or wish death upon lawyers – which he attributes to public resentment and anxiety about the extent to which law dominates daily life in our highly legalized society. When drawing this conclusion, he considers and dismisses other possible explanations, and he engages in comparisons with other societies. American exceptionalism [*931] apparently extends to lawyer jokes—no other society comes close in having such vituperative and plentiful jokes about lawyers. Americans are boxed in by law, and they need and want the law when things go wrong. Thus people simultaneously resent and depend upon lawyers—opinion polls show that people regard lawyers generally in a poor light, while they are satisfied with their own lawyer. Many think the law mainly backs the rich. Many are frustrated by the apparent disconnect between law and justice. Many demand more from the law, and the failure to satisfy this increased demand generates a backlash. Rather than blame the system, Galanter observes, this anger and frustration is displaced onto lawyers. It is easier to make fun of lawyers than it is to contemplate that the system might be fundamentally flawed.

A man went to see a lawyer and asked what his least expensive fee was. The lawyer replied, “$50 for three questions.”
Stunned, the man asked, “Isn’t that a lot of money for three questions?”
“Yes,” the lawyer said. “What is your final question?”(pp.85-86)

In the course of his analysis Galanter makes many interesting and novel connections. For example, although a newer category of jokes paints the lawyer as a betrayer of trust, the victims in the jokes usually are other professionals, but seldom the client. Galanter points out that this is consistent with the general view that a lawyer doggedly (perhaps to a fault) pursues her client’s cause at the expense of truth, morality, and the social good. Moreover, all of the “betrayer of trust” jokes that are now being directed at lawyers were formerly told of other groups—many in relation to Jews. The “three questions” joke recited immediately above was formerly told of Gypsies and fortune tellers. Galanter suggests that one factor contributing to the rise in lawyer jokes is that political correctness renders it less acceptable to make fun of ethnic or religious groups, so lawyers have become a preferred target. But it still says something about the perception of lawyers that they have become the butt of these types of jokes—jokes only work if there is some connection with the target. Another suggestive observation made by Galanter, one which bears further examination, is that societies can be equally “legalized” in the sense of having a dense set of rules and regulations governing social interaction, but not equally place law at the center of things, or at least not place law at the center of public perception. This point comes out in his comparison of lawyer jokes in United Kingdom (and elsewhere), which are less numerous and are much milder than those in the United States. Although there may be about the same amount of government regulation in both societies, in the UK (unlike the US), courts and lawyers are not the primary vehicles of legalization, so they do not generate a similar degree of attention and ire.

What do you call an attorney who describes himself as a criminal lawyer? Self-aware. (p.180)

Perhaps Galanter’s most provocative observation is that, although quantity and nastiness has increased, one category of jokes, and one category alone, is conspicuous by its absence: jokes about justice, once a part of the standard corpus, are now rare, falling into disuse before the recent explosion. That is odd. Galanter speculates why: [*932] “Older jokes that pointedly depicted lawyers as agents of injustice . . . have dropped out, perhaps because the notion of lawyers abruptly changing course or undermining the public interest for private advantage no longer violates our expectations with sufficient force. Lawyers are viewed as instruments of private will rather than as guardians of public weal” (p.246). His point is that the old jokes about lawyers subverting justice no longer work as jokes because people no longer think lawyers have any connection with justice. Now that’s a sobering thought.

Did you hear the good news and the bad news? The good news is that a bus load of lawyers just ran off the cliff. The bad news is that there were three empty seats on the bus. (p.213)

Anyone interested in the legal profession, in legal culture generally, and in the role lawyers play in our society, should read this book. You will be entertained along the way, but this is no laughing matter.

There is an old story of a lawyer named Strange and his wife having a conference as to the things he wished done after he had departed this life.

“I want a headstone put over me, my dear,” said the lawyer, “with the simple inscription—‘Here lies an honest lawyer.’”

The wife expressed surprise that he did not wish his name put on the headstone. “It will not be needful,” he responded, “for those who pass by and read that inscription will invariably remark: ‘That’s Strange.’” (p. 36)

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© Copyright 2005 by the author, Brian Z. Tamanaha.

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HONOR, STATUS, AND LAW IN MODERN LATIN AMERICA

by Sueann Caulfield, Sarah C. Chambers, and Lara Putnam (eds). Durham: Duke University Press, 2005. 344pp. Cloth. $89.95. ISBN: 0-8223-3575-1. Paperback. $24.95. ISBN: 0-8223-3587-5.

Reviewed by Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University. E-mail: adamsk@lawgate.byu.edu

pp.925-928

In their new book, Sueann Caulfield, Sarah C. Chambers, and Lara Putnam collect thirteen articles explicating transformations and relationships among law, honor, status and modernity in Latin America. Their cogent introduction highlights the centrality of certain themes to all the essays—“the rise of liberal ideologies, shifting ideas about public and private spheres, the growing intervention of the state in defining and arbitrating individual reputations, and the enduring role of patriarchy” (p.1). Gender and sexuality are significant categories of analysis in a number of the articles as well. The thirteen articles are divided into three groups: Liberalism, Status, and Citizenship; Popular Uses of the Law; and The Policing of Public Space. These three divisions are useful as an initial organizing tool, but should not impede consideration of the fruitful grounds for comparison between sections. For example, Olívia Maria Gomes da Cunha’s presentation of the stigmas of dishonor through forensic identification and criminal records in the “Policing of Public Space” section resonates with Laura Gotkowitz’s identification of verbal marks of honor and dishonor in the “Popular Uses of the Law” section. The formal sources of stigma are different, but the harm is similar. Six essays speak to Brazil (with five on Rio de Janeiro alone), two each to Puerto Rico and Bolivia, and one each to Peru, Mexico, and Costa Rica. By its structure and through the coherency of its themes, the collection facilitates comparative work, while providing a richly detailed view of honor, status and modernity in Latin America.

Like the editors, the essay authors are all historians, with the exception of one cultural anthropologist. I was pleased to see that the University of Michigan Law School supported, and several law professors participated in, the initial conference in 1998 from which the book derives. Bridging the distance between law and history as academic disciplines is important, particularly where law and its sources are the subject of historical inquiry. As one would expect given the book’s title, most of the articles rely on court cases, legal codes, and legislation as primary sources. The two articles whose primary sources are music and literature – José Amador de Jesús’ explication of the musical plena in Puerto Rico and Sidney Chalhoub’s interpretation of the literary works of Machado de Assis – stand out for this difference. Several of the essays come close to being legal history, particularly Keila Grinberg’s discussion of definitions of status and citizenship in the Brazilian civil code and Cristiana Schettini Pereira’s analysis of court cases regarding pandering in Rio de Janeiro. All of the essays present [*926] fascinating analyses of honor, status, and modernity, but individuals with legal training might have asked slightly different questions. This is not to fault the essays, but to identify opportunities for law professors and lawyers to be more involved in history and the fertile possibilities that exist to understand law in that endeavor.

Although significant delays are not unusual in the world of academic publishing, it is easy to lament the passing of so much time between the initial conference in 1998 and the publication of the book in 2005. Much has happened in the historiography of Latin America in those seven years, including the publication of nearly one-half of the thirteen articles in longer forms in other venues. As I read, I kept wondering what the differences were. Was I missing something from the alternative versions? If the ideas expressed in the articles merited book-length treatment or needed surrounding chapters by the same author to provide context, could I really get the full argument in abridged form? Perhaps these shorter articles germinated the longer chapters, books, and journal articles, but their subsequent, rather than prior, publication puts the serious scholar on notice that there is something more out there that merits her attention. Scholars will want to go beyond the articles in this collection to the more expansive treatments of the same subjects which five of the authors have published in English (Chambers 1999; Gotkowitz 2003; Putnam 2002, Ch.5; Caulfield 2000; Barragán 2003). Likewise, scholars who read Spanish or Portuguese may turn to Rossana Barragán’s (1999) Spanish-language book on Indians, women and citizens in Bolivia, and Sidney Chalhoub’s (2003) Portuguese-language book for further discussion of their subjects.

That said, the editors have provided a substantial service to professors by pulling this particular set of articles together in a single English-language volume, reasonably priced at least in the paper-back version. The articles average just over 22 pages in length, making them easily manageable as student course readings. The writing is generally accessible and colorful. Lara Putnam’s apt quotations from insult cases in Port Limón, Costa Rica, at the turn of the 19th century are especially delightful. I will never look at a yam the same way again. For student readers, a basic familiarity with Spanish or Portuguese would be helpful, but not absolutely necessary, for terms of art – alcalde, cargo, plena, rapto – which rightly remain in the text in the original language, but with rough English equivalents in parenthesis following their first use. The articles, initially written in Spanish and Portuguese, flow smoothly with little of the stiffness that sometimes occurs when academic articles move from their original language into another. Getting something this well-written in English when working with articles and sources in at least two other languages, demonstrates considerable work and attention to detail.

The book itself is user-friendly and well-done; the index is not. If I had not plastered my review copy with multi-colored post-it notes and written prodigiously in the margins, I would be hard pressed to find specific references again. Which author identified relationships with Chinese as [*927] especially subject to dishonor? With no separate entry for Chinese and nothing relevant under “race,” the index does not tell me. (In case you care, it is Lara Putnam again on pages 161, 162, 163, and 166). Was marriage or marital status relevant to the transformation of honor, law, and status in modern Latin America? I know it is. Nonetheless, the index entry for “marriage” mentions only deflowering suits and virginity, citing for both the same pages in a single article, Sueann Caulfield’s discussion of freedom and virginity in Rio de Janeiro from 1920 to 1940. The “marriage” index entry does not reference Laura Gotkowitz’s article on trading insults in Cochabamba, Bolivia, even though a central theme is failed marriage arrangements; it does not identify the heading “Race, Class, and Marriage” in Brodwyn Fischer’s article on insults, class, and social legitimacy in Rio de Janeiro’s criminal courts; it does not suggest the relevance of marriage to the resolution of rapto (robbing) cases in Eileen Findlay’s tale of sex and honor in late-nineteenth century Puerto Rico. Having read the book (and thanks to yellow-means-marriage-post-it notes), I know where to turn for the relevant discussions, but someone encountering the book for the first time would not. The index should support both the initial reading and encourage repeat use of the book by providing a decent guide to the book’s content. It is not just that the index fails to reference pages for important ideas, the system is affirmatively cryptic. To find Gotkowitz’s discussion of failed marriage arrangements, see the index entry for “insult suits,” “sexual purity” subheading. In contrast, to find Fischer’s explication of the relevance of race, class and marriage, see the index entry for “slander suits,” “honor” subheading. The index entry for slander suits cross-references the entry for insult suits, and vice-versa, but still. In future editions, the index could easily be improved to provide more ready access to the riches of the text. For now, that textual richness is worth the hassle. Just make sure to get your own copy, so you can mark it up.

REFERENCES:
Caulfield, Sueann. 2000. IN DEFENSE OF HONOR: MORALITY, MODERNITY, AND NATION IN EARLY-TWENTIETH-CENTURY BRAZIL. Durham: Duke University Press.

Chalhoub, Sidney. 2003. MACHADO DE ASSIS, HISTORIADOR. São Paulo: Companhia das Letras.

Chambers, Sarah. 1999. FROM SUBJECTS TO CITIZENS: HONOR, GENDER, AND POLITICS IN AREQUIPA, PERU, 1780-1854. University Park: Pennsylvania State University Press.

Barragán, Rossana. 2003. “The Spirit of Bolivian Laws,” in Gyanendra Pandey and Peter Geschiere (eds). THE FORGING OF NATIONHOOD. New Delhi: Manohar.

Barragán, Rossana. 1999. INDIOS, MUJERES Y CIUDADANOS: LEGISLACION Y EJERCICIO DE LA CIUDADANIA EN BOLIVIA (SIGLO XIX). La Paz : Fundación Diálogo.

Gotkowitz, Laura. 2003. “Trading Insults: Honor, Violence, and the Gendered Culture of Commerce in Cochabamba, Bolivia, 1870s-1950s.” 83 HISPANIC AMERICAN HISTORICAL REVIEW 83-118.

Putnam, Lara. 2002. THE COMPANY THEY KEPT: MIGRANTS AND THE POLITICS OF GENDER IN CARIBBEAN COSTA RICA, 1870-1960. Chapel Hill: University of North Carolina Press.

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© Copyright 2005 by the author, Kif Augustine-Adams.

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INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY: UNDER A GLOBALIZED INTELLECTUAL PROPERTY REGIME

by Keith E. Maskus and Jerome H. Reichman (eds). Cambridge, UK: Cambridge University Press, 2005. 938pp. Paperback. $90.00/£50.00. ISBN: 0521603021. Hardback. $180.00/£100.00. ISBN: 0521841968.

Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of Intellectual Property Law Program, Suffolk University Law School, Boston. Email: profrustad [at] aol.com.

When historians look back to the first decade of the twenty-first century, they will view the globalization of intellectual property as creating a greater gap between the information age “haves” and “have nots.” Intellectual property has been transformed from a sleepy backwater of territorially-based jurisprudence to perhaps the most significant branch of private law. To paraphrase a famous tort scholar, intellectual property is public policy in disguise. The shrinking of the intellectual property commons may be witnessed in every branch of intellectual property law and these newly minted rights are increasingly being enforced across the world. Intellectual property rights (IPRs) are expanding in every branch of the law, and enforcement is sought around the world.

The genesis for this magisterial collection of essays was a Conference on International Public Goods and Transfers of Technology under a Globalized Intellectual Property Regime in April 2003 at Duke University. Essays in this book were previously published in the Oxford University Press Journal of International Economic Law. This book is one of the rare projects involving the cooperation of the university presses of Oxford and Cambridge. This book features a “who’s who” of intellectual property scholars with a serious interest in public policy impacts. The goal of the Duke University conference that led to this book was a reexamination of the impact of transnational intellectual property on less developed countries. The editors, Keith E. Maskus and Jerome H. Reichman, acknowledge that open trade and investment permits less developed countries to use new technologies. In contrast, the core European countries of early capitalism expropriated much of the capital surplus generated by the periphery through brute force. Today open trade and investment constrains undeveloped countries’ ability to receive and use new technologies (p.5).

The contributors to this volume examine the public policy underlying intellectual property protection expansion throughout the periphery and semi-periphery. The introductory chapter by Maskus and Reichman explain how the increasing protection for intellectual property through trade negotiations is the principal driver beyond the globalization of IPRs (p.5). TRIPS establish the floor but not the ceiling for intellectual property rights. Signatories, such as the semi-periphery nation of Mexico, must revamp their intellectual [*921] property laws to meet trade obligations. All signatories must enact statutes to protect copyright and related rights, trademark rights, patent rights, rights in layout designs of semiconductor integrated circuits, trade secrets rights, plant breeders’ rights, rights in geographical indications and industrial designs. Mexico, for example, must accord national treatment to the United States and Canada at a time when few of its citizens can pay the going rate for licensing IP-protected products and services. Mexico’s government began to overhaul “the recognition and enforcement of intellectual property rights, in part to avoid the increasingly rigorous trade restrictions imposed by the United States. Stephen Zamora and his colleagues (2005, at 643-44) document how Mexico completely revamped intellectual property as part of its entry into NAFTA and the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) in 1994.

This “Second Enclosure Movement” of fortified IPRs in a global legal environment will result in social disutilities such as undermining scientific norms and commercialize publicly funded research. The editors describe the efforts of the core countries to ratchet up IPRs in undeveloped countries as essentially exporting a dysfunctional system to the rest of the world (p.23). The editors describe efforts of a few core countries, notably France and Sweden, to explore the impact of expansionary IPRs on the social welfare of less developed countries (p.27). The contributors develop these themes in subsequent chapters.

In his book, Immanuel Wallerstein (1976) explains how a few front-line countries in Europe dominated core and semi-periphery countries. In the sixteenth century, England, France, Holland formed the first core region. Eastern Europe and Latin America were relatively undeveloped on the periphery, exporting raw materials and labor to the dominant core nations. Finally, semi-peripheries, such as Spain and Portugal, were former core countries on the decline.

Wallerstein’s theory of the world system has a continuing vitality when explaining the globalized intellectual property rights discussed in this volume. In the modern world system, global core powers use trade negotiations to impose the rules, norms and decision-making processes for extracting value from intellectual property. Just as in early capitalism, today’s powerful cartels controlling IPRs raise costs while expropriating resources from the developing world. Many of the contributors conclude that local innovation is thwarted as will access to essential medicines and technologies.

Today’s world system is built upon the bedrock of ever-expanding intellectual property rights. Intellectual property is the crown jewel of the information-based economy in the new millennium. An abyss exists between the principle of equal access to information and the empirical reality of a newly emergent world system trifurcated into the new “core,” “semi-periphery,” and “periphery” countries. Globalized intellectual property rights can be seen in the Internet that connects the home pages for every nation in world, as well as shrinking national boundaries. [*922] International technology transfer (ITT) is conceptualized by the editors as a term “covering mechanisms for shifting information across borders and its effective diffusion into recipient economies (p.11).

The advanced core industrial nations have entered an information age in which the entertainment, pharmaceutical, financial services, and software industries are the dominant stakeholders, displacing the manufacturing-based durable goods economy. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the rise of the World Trade Organization (WTO) signal a new era in which intellectual property rights are enforced across boundaries. TRIPS and the WTO framework are used to develop minimum intellectual property protection for the core countries in less developed periphery and semi-periphery countries.

Whereas Northwest Europe dominated early capitalism, the United States is the hegemonic core country of the twenty-first century world system, and it is outsourcing manufacturing to Mexico and China and services to India. A growing number of U.S. companies are outsourcing manufacturing as well as services to semi-periphery countries such as India. Bellman and Koppel (2005) report that U.S. companies and law firms are even outsourcing legal services, such as patent and trademark searches and applications, to India. In the information-based economy, new technological roadblocks are erected by the core country, limiting access to public goods in the new periphery and semi-periphery. The theory behind liberalized trade is that the result will be more open markets, improved government, and more robust transfer of technology to the less developed periphery and semi-periphery.

The book is divided into four parts, each presenting law and economic perspectives on the general theme of globalization of intellectual property rights. Each paper in Part I analyzes how the concept of intellectual property as “public goods” impacts access to information and technologies in less developed countries. Paul David’s essay on Koyaanisqatsi in Cyberspace critiques the European Union’s sui generis protection for databases and the economic rationale for copyright. David argues that the EU’s fortified protection for databases threatens academic research. He argues that Robert Frost’s ode that “good fences make good neighbors” may apply to cow law but not public goods like IPRs. Each of the essays in this Part is telescopic, raising big issues about the negative impact of expanding global IPRs.

Part II addresses the broad theme of “Innovation and Technology Transfer in a Protectionist Environment.” One of the sections in this part examines how incentives impact global public goods and their transfer of technology to less developed countries. Lawrence Helfer’s superb article on preserving the global genetic commons reviews the “seed wars” in the developing world launched by core nation plant breeders. Helfer argues that the room available within TRIPS to foster technology transfer to developing countries is too small (p.254). He recommends that future work be launched at the level of international law to promote greater [*923] access to technology and suggests greater regulation of the slicing and dicing of IPRs through restrictive licensing practices (p.255).

In Part III, “Sectoral Issues: Essential Medicines and Traditional Knowledge,” a number of articles discuss the law and economics of preserving traditional knowledge in the expanding universe of IPRs. The conflict between expansive IPRs and traditional knowledge can be seen in the Enola bean controversy. In 1999, the United States Patent and Trademark Office awarded a patent for the yellow-seeded cultivar Enola. The patent applicant first obtained these specimens in a bag of different colored seeds purchased in Mexico in 1994. The U.S. patent holder sought a limited monopoly for the Enola bean which was a product of indigenous culture. The downside of TRIPS is that indigenous peoples will inevitably lose control of their traditional knowledge. Part III addresses arguments for and against globalization and its impact on medicine and traditional knowledge. Part IV focuses on “Reform and Regulation,” and the final section proposes reform in the dispute settlement mechanisms of the WTO. Fred Abbott’s piece examines the challenges of ensuring access to essential medicines in an era of expanded patent rights.

This edited volume is the first major study to address comprehensively ways to minimize the social costs and enhance the benefits of the emerging globalized intellectual property regime for the less developed countries. It is the first serious attempt to show how the expansion of intellectual property rights affects public goods. This is a ground-breaking instant classic that will be useful to social scientists, lawyers, and legal academics interested in development. Public policymakers should also read this book to determine the most efficient provision of IPRs as public goods.

The editors contend that public and private interests must be considered in emerging transnational IPRs. All countries – core, periphery and semi-periphery – would benefit from IPRs as a global public good (p.41). This new paradigm of IP rights would be a truly open transnational system of innovation with low barriers for entry to entrepreneurs in less developed countries (p.33). Maskus and Reichman propose a world system in which public safeguards are instituted to prevent expropriation by the core nations. In such an egalitarian world system, “public safeguards should also enable digital telecommunications networks to link the providers of scientific and technical inputs in an endless research commons” (p.33). In addition, they also propose a “moratorium on stronger international IP standards” as a cautious first step to a new transnational creative commons (p.36).


REFERENCES:
Bellman, Eric, and Koppel, Nathan. 2005. “More U.S. Legal Work Moves to India’s Low-Cost Lawyers. THE WALL STREET JOURNAL, Sept. 28, 2005, p.B1.

Wallerstein, Immanuel. 1976. THE MODERN WORLD SYSTEM: CAPITALIST AGRICULTURE AND THE ORIGINS OF THE EUROPEAN WORLD-ECONOMY IN THE SIXTEENTH CENTURY. New York: Academic Press. [*924]

Zamora, Stephen, José Ramón Cossio, Leonel Pereznieto, Jose Roldan Xopa and David Lopez. 2005. MEXICAN LAW. Oxford: Oxford University Press.

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© Copyright 2005 by the author, Michael L. Rustad.

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LAW AND RISK

by the Law Commission of Canada (ed). Vancouver: UBC Press, 2005. 220pp. Hardcover. CDN$85.00/US$85.00. ISBN: 0774811919

Reviewed by Thaddeus Hwong, School of Administrative Studies, Atkinson Faculty of Liberal and Professional Studies, York University. Email: thwong [at] yorku.ca.

pp.917-919

Authors outside Canada have written about law and risk in different ways in recent years. Cass Sunstein’s (2002) assessment of the use of cost-benefit analysis along the law and economics line might rattle some who care about more than just rational behavior in a market environment. Sidney Shapiro and Robert Glicksman (2003) call for a philosophical focus on ends and means that might irk some who are wary of difficulty in translating abstract ideas into policy outcomes. Jenny Steel (2004) considers theories about risk that might simply intimidate the less philosophically inclined, like this reviewer. In a nutshell, talking about law and risk is difficult, and it is hard to please everyone in doing so.

LAW AND RISK, like the other books cited above, will not please everyone. Some may find the compendium refreshing as they represent a new outing of Canadian legal researchers into another “law and . . .” territory, where few legal researchers in Canada have gone before. Some may find fault in the wide-ranging yet limiting content of the presentations that originated from a 2003 conference (See the lineup at http://www.acpd-calt.org/english/docs/program_halifax03_e.pdf ). The scope is broad, but the focus of each essay is specific.

The collection starts with a compelling first paragraph in the Preface: “Contracts manage risks of non-performance. Regulations manage perceived risks to the health and safety of citizens. Sentencing principles aim to manage the risks of recidivism or violence. Law is often about managing risk.” From thereon the essays offer informative discussion of the risk assessment of dangerous offenders (Chapter 2), the precautionary principle and the burden of proof (Chapter 3), the knowledge of risk of actors in the legal system (Chapter 4), the constitutional aspects of risk management (Chapter 5), and risk analysis of biomedical research (Chapter 6). Not to do any injustice to the five papers and their associated introduction in the first chapter, I would leave you to sift through the insights offered by the essays. To be sure, the collection is an essential read, if you are looking for current writings on law and risk in Canada.

Instead of trying to summarize the papers, I would like to raise a few broader questions. The book is entitled LAW AND RISK, and I wonder whether the two realms of knowledge receive equal billing. To rephrase, I wonder whether the collection is about risk viewed through the lens of law, or vice versa. My impression is that risk is understood through law. Some of you may think that I am playing trivial word games here, but I am not. In a crude and over-simplistic way, let us assume that law as a discipline relies more on words [*918] as its medium, but risk as a discipline relies more on numbers. I do not see that many numbers cited in the collection of essays, except data related to dangerous offenders (pp.34, 36). That is why I venture to say that risk is viewed through the lens of law in the collection of essays, as I thought there must be more numbers in the essays if the reverse were true. That is analogous to the fact that I cannot foresee an actuary (a prototype or a caricature of a risk professional, depending on your point of view) to give you a thorough risk assessment without numbers.

A more general question then emerges. Should law be viewed through the lens of risk? Or can risk be discussed in comprehensive terms without numbers? Statistics are mentioned in the Chapter 3 in a sub-section, Seizing Statistical Power (pp.63-64), under the section, Exposing Burdens of Proof in Science. One main idea in that part of the chapter is that values come into play even in setting statistical benchmarks such as level of significance. But the value of statistics is mentioned only in passing. Now, some of you may think that you know where I am going. Some of you may think that I am about to mount a pedestrian defense of the use of statistical methods in risk management, and I will say that law is ill-equipped to deal with risk because the ideas will not be articulated clearly. But what I really want to say is something a lot more basic: no matter how important values are in determining a level of risk that is too high or too low, how can we not run through some statistics? Yes, statistics can be value-laden, and so are text, but we need them both in understanding risk.

Assuming that I have cell phones almost surgically attached to my ears because I am a salesman, and I am told “heavy” cell phone usage is “risky.” However, I want to know the probability of risk of getting brain cancer associated with my cell phone use. Do you think I want to know what constitutes “heavy” use? You bet I do. Theorists can argue the proper definition of riskiness or the normative basis of risk management, but we need the essential statistics. Yes, getting to the statistics requires theoretical inquiries, and theory is important in making sense of our world, but I also want the statistics, even if they are value-laden. If you have more than one set of statistics, I will welcome them. If you have more than one set of statistics from more than one perspective, I will embrace them. The statistics might be skewed toward one perspective or another. According to a question raised in Chapter 3 (p.64), “Does it favor the right interests?” Indeed, statistics may suggest confusing or even conflicting empirical findings, but the burden for the analyst is to understand, clarify, and place the statistics into a broader perspective.

Statistics are just by-products. They are often used in illustrating empirical perspectives. Getting to the statistics requires empirical research. I am not saying that all researchers in law and risk must do empirical work. But incorporating an informed empirical perspective is important in understanding law and risk. Propositions offered by law and risk researchers who have not incorporated empirical perspectives into their analyses are incomplete.

The issue of the value of quantitative empirical research in advancing legal [*919] knowledge is very contentious (see Hwong 2004). I am not trying to dismiss the contributions made by the discussions in this collection of essays, but I do believe that the volume could have been a more compelling read. That may be a bit unfair, as I am looking for things that are not there, and perhaps I should have focused on the existing content of the book alone. Despite the fact that one can learn a lot from these essays, the lack of an empirical voice is glaring. I am not suggesting that one must incorporate empirical research when considering law and risk. However, incorporating a perspective gained by an enhanced and more nuanced understanding of empirical research on risk would have added an important dimension and enhanced the discussions of law in this collection.

REFERENCES:
Hwong, Thaddeus. 2004. “A Review of Quantitative Studies of Decision Making in the Supreme Court of Canada.” 30 MANITOBA LAW JOURNAL 353.

Shapiro, Sidney A., and Robert L. Glicksman. 2003. RISK REGULATION AT RISK: RESTORING A PRAGMATIC APPROACH. Stanford, CA: Stanford Law and Politics.

Steele, Jenny. 2004. RISKS AND LEGAL THEORY. Oxford; Portland, OR: Hart.

Sunstein, Cass R. 2002. RISK AND REASON: SAFETY, LAW, AND THE ENVIRONMENT. Cambridge; New York: Cambridge University Press.

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© Copyright 2005 by the author, Thaddeus Hwong.

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THE LOGIC OF EQUALITY: A FORMAL ANALYSIS OF NON-DISCRIMINATION LAW

by Eric Heinze. Ashgate Publishing, Ltd., 2003. 152pp. Hardcover. $99.95/£55.00. ISBN: 075462319X.

Reviewed by Douglas Grob, Department of Government and Politics, University of Maryland (College Park). Email: dgrob [at] umd.edu

pp.911-916

References to equal protection of the laws, protection from cruelty and degradation, norms of fairness in judicial proceedings, free expression, and the like, can be found in many “rights instruments,” whether they be constitutions, treaties, declarations or other authoritative statements. Yet no two instruments, nor the expression of rights and norms they embody, are equivalent, much less identical. Rights and norms may be guaranteed or enforced to varying degrees (if at all) across jurisdictions. Words pertaining to rights and norms may be subject to multiple interpretations within and across jurisdictions as well as across time. Interpretations, in turn, may vary in the extent to which they are enforced or legally enforceable. The mere existence of variance, per se, on these or other dimensions, however, does not logically imply that expressions of rights and norms have no components that are fixed and possibly common across cases and contexts, or perhaps even across legal systems.

What is missing from discourse on legal indeterminacy, according to Eric Heinze, in THE LOGIC OF EQUALITY, is a much-needed “science” of indeterminacy. That is what this book proposes. Its main contribution is the presentation, in a format accessible even to readers with no prior training in formal logic, of “a method of formal analysis aimed at pinpointing elements of determinacy underlying (what H.L.A. Hart called) the ‘open texture’ of a legal norm” (p.4). The reader is escorted step-by-step through a procedure for transforming prose arguments concerning equal protection into formal logical expressions. The method of formalization is narrowly tailored to the structure of arguments commonly found in non-discrimination cases. The method is applied to a selection of cases drawn from a variety of contexts, including the United States, Germany, and the European Union.

Heinze’s aspirations, clearly stated up front, are appropriately limited. His “only purpose” is to explore whether the non-discrimination norm has “any fixed components which remain constant both within and across jurisdictions.” It is the task of the parties to any particular case to “adduce positions which (purport to) resolve” disputes. This book does not pretend to usurp that role. That is, it is not concerned primarily with the “correct” resolution of disputes, but rather with formalizing and analyzing the structure of arguments on either side of any given non-discrimination dispute. The model says nothing about the truth, validity or persuasiveness of arguments.

Arguments in discrimination disputes, Heinze argues, are “necessarily” some combination of distinct components—[*912]factual and normative assertions about treatment, objective status and subjective merit. Considered jointly, these imply a conclusion about a breach of a rule or norm. The book’s central theoretical claim is that, in non-discrimination jurisprudence, these components “can occur only in a fixed range of positions,” as set forth under four “general forms” of argument (described as the “traditional,” “impact,” “accommodation,” and “non-recognition” models). Those formal positions “represent a degree of absolute determinacy and uniformity in discrimination jurisprudence” (p.136) within and across systems.

In spite of this alleged determinacy, the author hastens to add, there can be no uniform approach to any one system, much less to all of them. “(E)ven within a single regime, rights jurisprudence, far from converging on clear sets of principles, remains subject to indeterminacy. That significant degree of divergence across systems does not, however, mean that uniformity is entirely lacking” (p.136). Heinze’s claim is that, while substantive indeterminacy persists, uniformity exists at the level of formal structure. The purpose of the book is to identify that structure without either embracing or disavowing it on normative grounds. “The formal structure is only a messenger; it is not the message” are the author’s closing words (pp.136-137). The book consists of four parts. The first three set forth and justify building blocks largely in terms of the “traditional” model. The fourth erects the full formal schema and delves more deeply into applications and distinctions among general forms.

Building Blocks
Treatment: Empirically, parties to a dispute make factual assertions in tandem with normative assertions (In DOTHARD v. RAWLINSON (1977), for instance, Dothard makes a factual claim that she has been treated unequally in tandem with a normative claim that she should be treated equally). From the standpoint of formal logic, however, factual and normative assertions are treated as discrete elements. In a traditional dispute, one side asserts factually that treatment has been unequal (equal) while the other asserts it has been equal (unequal). Normative assertions, in turn, are of two general types: compulsory and permissive. Compulsory normative assertions are claims that the law requires a particular result. Permissive normative assertions are claims that the law merely permits a particular result. In DOTHARD, the parties’ factual assertions are consistent (both sides agree that treatment was unequal). But they take different normative positions. The claimant makes a compulsory assertion (equal treatment is required by law) while the respondent makes a permissive assertion (unequal treatment in this case is permitted by law).

Objective Status: Factual positions concerning equality of treatment are predicated on the existence of some “objective status” ascribed to individuals. (Sex, language, familial relation and citizenship are among the examples discussed.) Every objective status is a set comprised of two or more subsets (sex is comprised of the subsets men and women; language is a set comprised [here] of the subsets Dutch speakers and French speakers; and so on.) Claims of discrimination presuppose that one subset is favored [*913] over another. Such claims generically are of the form “treatment is unequal despite equality of objective status.” The normative position implied here is that equal objective status requires (i.e. provides a sufficient condition for) compulsory equal treatment. In traditional disputes, respondents who challenge objective status assertions traditionally do so by asserting claimants belong to a different objective status subset. Arguments generically are of the form “treatment is unequal on the basis of inequality of objective status.” The normative position implied here is that unequal objective status allows (i.e. provides a sufficient condition for) permissive inequality of treatment. Arguments of this form frequently are articulated colloquially in terms of “justification” (“[un]equal objective status justifies [un]equal treatment;” or “if objective status is [un]equal, then [in]equality of treatment is justified”).

Subjective Merit: In order to account more fully for the structure of discrimination discourse observed empirically, it is necessary to include one more element in addition to joint factual and normative claims about treatment and objective status. Positions also must incorporate some context-specific determination of ability, need or circumstance. Such determinations are referred to as assertions of “subjective merit,” of which there are two types. An assertion of “commensurate subjective merit” is an “assertion that one possesses some ability or need which should entitle one to enjoy a benefit from which, under the challenged rule, one is barred” (p.75). An assertion of “incommensurate subjective merit” is an “assertion that one does not possess some ability or need which should entitle one to enjoy that benefit” (p.75).

Distilled to these elements—factual and normative claims about treatment, objective status and subjective merit—arguments may then be expressed formally as compound positions. Formalization places consistency across cases and jurisdictions in sharp relief. For example, for a cross-section of “traditional” cases from different systems, claimants’ assertions about objective status are found to depend on a logically prior assertion about subjective merit. Concretely, in DOTHARD, for example, “in order to reach the conclusion that there is in fact objective equality between men and women for purposes of working as a guard, (Ms. Dothard) must (first) assert . . . that there is commensurate subjective merit on her part with respect to the requisite tasks” (p.91). Formal analysis of respondents’ positions, however, yields the opposite finding across cases: respondents’ assertions about subjective merit are derived from their logically prior assertions about objective status. For example, respondent in DOTHARD argues that, if there is objective inequality between women and men with respect to ability to perform the tasks of prison guard successfully, then there is ipso facto incommensurate subjective merit on the part of the claimant to be hired for that position.

At first glance, these findings concerning logical priority are not surprising. The observed difference between claimant and respondent positions follows, in part, from the way traditional cases arise and tend to be reasoned and argued empirically. The state casts a net (law). Individual claimants begin with the facts [*914] of their own circumstances and reason from those facts. A chief benefit of formalization, however, is that it offers a standardized mode of expression and a common vocabulary with which to talk about dissimilar cases. By facilitating classification of cases, formality reveals that this finding does not apply to all general forms of equal protection arguments (see Formal Schema, below). Most importantly, formality facilitates cumulative research.

Many political scientists have exploited the cumulative potential of formal theory by looking to game theoretic models of strategic interaction. So doing has generated a substantial literature on the problems of credible commitments, information, transaction costs and other aspects of political-economic phenomena. This book describes a formal theoretical approach to problems in terrain less well-traveled by most students of political science, (re)locating legal theory within the realm of cumulative “science.”

Formal Schema
Heinze offers a four-part schema of “general forms” of argument arising under non-discrimination law. The schema, the bare bones of which I provide only a glimpse here, sets up useful scaffolding upon which future research may cumulate.

Traditional Model: Claimants argue that commensurate subjective merit within the circumstances of a particular case establishes objective equality for the purposes of that case. Respondent (typically the state) does not deny that treatment is unequal, but maintains that objective inequality justifies unequal treatment. In the case of affirmative action, courts find affirmative action constitutional by accepting the state’s objective status claims. When courts find it unconstitutional, they do so by accepting the claimant’s subjective merit arguments. Such consistency is present even when a court’s doctrinal reasons contradict earlier doctrinal positions. Uniformity of logical structure seems to trump doctrinal consistency in the cases examined.

Heinze’s discussion of civil rights and standards of review is provocative. Based on comparative analysis of the formal structure of arguments concerning race and sex across a selection of “traditional” cases, he concludes that there is little that the U.S. Supreme Court says in setting forth the “heightened scrutiny” standard that logically can mean anything more than greater deference to a claimant’s values pertaining to objective status. While “rational basis,” on the other hand, logically can mean only greater deference to respondent (i.e. state) understandings of objective status. The Court’s articulation of standards of review over the years aims for greater clarity and determinacy in decisions and decision-making. Yet, Heinze finds, the determinacy of the Court’s standards of review goes no further than the sheer formal structure of its arguments, and that those standards are “ultimately indistinguishable from the more prosaic ‘reasonableness’ or ‘proportionality’ standards used by non-US courts” (p.118).

Impact Model: Here, Heinze refers to cases in which “there truly is no policy or practice expressly based on an identified objective status” (p.127) in the first place. Cases involving “policies or [*915] practices that are discriminatory in effect regardless of the presence or absence of discriminatory intent” fit this model. Whereas, in the traditional model, disputes center on objective status, in the impact model, disputes center about subjective merit. Claimants’ arguments are premised on claims about subjective merit while respondents’ arguments are premised on contrary claims about subjective merit, not on claims of objective inequality, as in the traditional model. Formalizing arguments across cases reveals this consistency of logical structure.

Accommodation Model: This model describes cases in which discrimination results from a failure to accommodate differences in individual needs (e.g. arising out of disability). Claimants “assert particular subjective needs, based on their objective status.” Respondents “justify failure to accommodate those needs by adopting a contrary view as to the nature or gravity of the subjective need.” Formalization reveals how the logical structure of arguments in these cases differs from the traditional model: the positions occupied by subjective merit and objective status within the logical structure of each side’s arguments are reversed. A claimant’s “arguments about subjective merit derive from some generalized view of her objective status,” while it is the respondent’s arguments that draw upon some “individualized assertion about the claimant’s subjective merit” (p.129). Formalization also reveals that claimants’ arguments in accommodation and impact cases differ, but respondents’ arguments follow similar logical structure. One way this structural similarity is manifested empirically is the extent to which respondents in both impact and accommodation cases tend to rely on statistical evidence to draw inferences about subjective need. An analyst attuned to logical structure might then be inclined to consider the availability and quality of statistical data ex ante as one factor influencing outcomes in both categories of cases.

Non-discrimination Model: Claimants’ positions are structurally similar to those in the accommodation model, but respondents’ positions differ. Claimants assert inequality of objective status to justify a finding of incommensurate – special – merit. Respondents, rather than taking a different view of subjective merit (as in the accommodation model) “deny the very existence of the claimed objective status as a status requiring distinct recognition” (p.135). In this general form, disputes turn entirely on the characterization of objective status.

Innovative, groundbreaking work inevitably provides opportunities to point up possible problems and omissions, real or imagined. This book is no exception. However, against this book’s contributions, the following most appropriately might be regarded as opportunities rather than shortcomings. First, the distinction between constitutional and statutory questions merits further discussion. It remains unclear, for instance, whether the difference might affect relationships among formal elements. Second, the approach at times seems implicitly to assume away strategic dynamics. The book does not purport to be a study of strategic interaction, and presumably was not written with a narrow political science audience in mind, so this criticism is, admittedly, not entirely fair. Nonetheless, strategic dynamics occupy [*916] a prominent place in ongoing debates among positive political theorists and students of public law. The possible endogeneity of what is and is not at issue in any particular case (or endogeneity of the general form a case may take), and whether or not any such endogeneity would raise the specter of indeterminacy at the level of formal structure, merits attention. Finally, while the substantive discussion of the traditional model is thorough, and of the impact model, fully adequate, presentation of the accommodation and non-recognition models leaves substantial room for more expansive illustration. The presentation is not flawed, per se, but, precisely because the schema promises significant utility, these models deserve more extensive elaboration.

Substantive disagreements over the scope and extent of equal protection principles notwithstanding, this book suggests that, lurking amidst pervasive indeterminacy, some elements of formally determinate structure may exist across cases, even, perhaps, across systems. Of what substantive import that may be is not the exploration the book undertakes. Extant research has not yet fully equipped us for such an exploration. But, with this book, we are better equipped than before. The book, brief as it is, problem sets and all, is novel, clearly-written and thought-provoking. Much like the body of law it explicates, it raises as many questions as it answers. Suitable for graduate and upper-level undergraduate seminars on law and society, formal theory or political philosophy, it would also be a first-rate addition to a law school syllabus. Readers are assured to come away with heightened awareness of logical structure, and to acquire skills readily applicable both to the crafting and deconstruction of equal protection arguments.

CASE REFERENCE
DOTHARD v. RAWLINSON, 433 U.S. 321 (1977).

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© Copyright 2005 by the author, Douglas Grob.

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THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM

by Dennis J. Goldford. Cambridge University Press, 2005. 318pp. Cloth $75.00 / £45.00. ISBN: 0-521-84558-8. Paper. $29.99 / £19.99. ISBN: 0-521-60779-5

Reviewed by Jack Wade Nowlin, University of Mississippi School of Law, jnowlin [at] olemiss.edu.

pp.903-910

Dennis J. Goldford is an associate professor of politics at Drake University and Director of the University’s Program in Law, Politics, and Society. His book, THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM, is an incisive and innovative examination of the theoretical foundations of the originalism-nonoriginalism debate and of the common assumptions about the Constitution and constitutionalism that provide the groundwork for originalist and nonoriginalist interpretive approaches. It includes detailed discussions of the politics of originalism, the concept of the living Constitution, interpretivism and originalism, problems of legal objectivity, and the epistemology, ontology, and political character of constitutional discourse. The book also draws on the scholarship of Michael Perry, Keith Whittington, and Lawrence Lessig among many others.

Goldford observes that “controversies in constitutional theory” are the “legal expression of essentially political conflict,” the “theoretical and principled expression of intensely partisan, practical concerns” (p.1). With this view in mind, Goldford’s aim is to uncover “the structure of premises about constitutional interpretation that generates the debate between originalism and nonoriginalism precisely in order to move beyond that debate” (p.x). In place of the originalism-nonoriginalism dichotomy, Goldford develops an interpretive theory to which he refers as “‘interpretive constitutional textuality,” a form of textualist interpretive theory that “allows [one] to understand the essential nature of constitutional discourse as classical political theory would have it – public deliberation over what constitutes the common good under a written constitution” (p.18). This interpretive analysis is part of the project of clarifying the way in which the Constitution is “constitutive” and how this “constitutive” nature accounts for both the Constitution’s “democratic character and binding capacity” (p.16). Goldford’s goal, in sum, is to analyze the “nature of constitutional interpretation” in order to explore “the nature of American constitutionalism” and illuminate the “essentially constitutive” character of the Constitution, which in turn will cast new light on the traditional debates over originalism and its rivals and on future directions for analysis (p.1).

In Goldford’s view, the errors of originalism can be found in its chief claim, seen in its conception of the relationship of the following two propositions:

P1: What binds the future is the constitutional text. [*904]
P2 : What binds the future is the original understanding of the constitutional text.

For originalism, both P1 and P2 are the same proposition, with P2 serving as a simple – if crucial – elaboration upon P1. Originalists typically identify P1 with P2 in an effort to “settle” the meaning of the constitutional text, and to “settle” it authoritatively by turning to the understanding of those persons in the privileged position of having written the text, the framers, or rendered it legally operational, the ratifiers. Goldford contends that the originalist identification of P1 with P2 in essence rejects or undermines both the binding capacity of the Constitution and its democratic character. On this view, originalism rejects or undermines the binding capacity of the Constitution – which Goldford appears to understand as principally the constitutional text – because originalism views the text of the Constitution as indeterminate (or under-determinant), and thus also views the text as containing no (or insufficient) determinant content capable of “binding” the future. Originalism thus seeks the Constitution’s binding capacity in something beyond the constitutional text itself, a more fully determinant interpretation of the text, that of the original founders who wrote and ratified it. Originalism, then, does not view the constitutional text as truly binding, or at least not sufficiently so, and turns to extra-textual sources of interpretation to render it (more) determinant and to realize (better) its binding capacity. Thus, in Goldford’s view, “orginalism considers itself necessary” because of its “disbelief in the binding capacity of language,” including, of course, the language of the constitutional text, though belief in the binding capacity of the constitutional text is, Goldford contends, at the heart of American constitutionalism (p.13)

In Goldford’s view, originalism also undermines the democratic character of the Constitution – again, which Goldford understands as the text of the Constitution – for reasons which also concern textual indeterminacy and the felt-need to rely on an authoritative interpretation. Because originalism views the constitutional text as in- or under-determinant and thus seeks to be bound by a putatively more determinant and authoritative interpretation of the text, that of the founders, originalism insulates debate about constitutional understanding from contemporary democratic resolution. Thus originalism does not view the Constitution (i.e., the constitutional text) as truly democratic in the sense of subject to contemporary democratic debate about its meaning, but rather originalism seeks to ground constitutional meaning beyond contemporary democratic debate in the original understanding that may be found in constitutional history. In sum, Goldford maintains that originalism holds that “WE [contemporary Americans] do not – and, indeed, cannot – decide what the Constitutional means; rather, the Framers and/or ratifiers decide, and our obligation is but to obey” (pp.14-15).

Goldford’s rejection of originalism should not be viewed as an endorsement of nonoriginalism, which Goldford maintains suffers from some of the same core theoretical flaws as originalism. For instance, nonoriginalists, in Goldford’s view, may also be thought to reject the binding capacity of the [*905] constitutional text in much the same fashion as originalists by asserting that the text of the Constitution cannot truly bind because of its indeterminacy. Nonoriginalists, then, may also attempt to render the meaning of the constitutional text more determinant by privileging a putatively authoritative interpretation of the Constitution, grounded, for instance, in a particular moral theory. Instead of endorsing non-originalism, Goldford seeks to transcend the debate between originalism and nonoriginalism by developing a theory which is neither conventionally originalist nor nonoriginalist.

Goldford’s interpretive theory is an “interpretive” form of textualism which seeks to explain the constitutive nature of the Constitution as well as its binding capacity and democratic character. Goldford’s theory of interpretive textualism contends, first, that “we [Americans] are a people who constitute ourselves as a people in and through the terms of a fundamental text” (p.17). Thus, the constitutional text is constitutive of the American political community and structures political debate about the common good in terms of a written document. Second, as to the text’s binding capacity, Goldford asserts that “the meaning of constitutional provisions – is fixed” by the text, but that “our understanding, our interpretation, of that meaning is changeable” (p.57). This is the essence of the “interpretive” aspect of interpretive textualism, the text itself binds the future, accounting for the Constitution’s binding capacity, but the interpretation of the text changes, and no interpretation – such as that of the founding generation – can claim a privileged position. Third, on the democratic character of the Constitution, Goldford contends that we, contemporary Americans, decide what interpretation(s) of the Constitution to accept and that such a democratic debate about the most persuasive understandings of the meaning of the Constitution accounts for its fundamentally democratic character.

While this thumbnail sketch of Goldford’s critique of originalism and his theory of “interpretive textuality” cannot do justice to his analysis, it can serve as a basis for exploring a few of the implications of his work which may cast additional light on the nature of his project. Although Goldford never directly addresses the question of the supremacy or supreme authority of judicial interpretations of the Constitution over the interpretations of (other) political actors, such as Congress or the states, his analysis seems inevitably to call this practice into question. Indeed, the impulse behind originalism – a concern about the under-determinacy of the text of the Constitution that drives the assertion of a need to repair to a more determinant interpretation of that text, one which is privileged above other interpretations because it is deemed authoritative in some respect – is quite similar to the impulse behind judicial supremacy. Indeed, judicial supremacy is also driven, one might think, by the felt-need to settle1 the meaning of the under-determinant constitutional text through deference to a source of interpretation considered to be authoritative, the decisions of the Supreme Court, the institution, under the separation of powers, thought to be charged with the interpretation of the law, including the law of the Constitution.2 If originalism [*906] involves a rejection of the binding nature of the constitutional text qua text and seeks instead to “settle” constitutional meaning by privileging an interpretation of the text (the founders’ interpretation) beyond ordinary democratic debate, judicial supremacy similarly settles constitutional meaning by privileging the interpretations of the text favored by the Court, an unelected and electorally unaccountable institution insulated from most of the effects of ordinary democratic debate.

Moreover, Goldford’s definition of his theory of interpretive textuality, “public deliberation over what constitutes the common good under a written constitution” (p.18), sounds very much like an extra-judicial political understanding of constitutional interpretation, if public deliberation is indeed meant to be a truly democratic political discourse, as Goldford maintains, rather than an elite judicial one. Indeed, as Goldford suggests, “the idea of a privileged standpoint [which originalism asserts for the founders] is incompatible with the idea of the legitimacy of difference that is the crucial presupposition and raison d’etre of politics and political argumentation” (p.291). And the same would seem to be true for the “privileged standpoint” which the judicial supremacist view asserts for the Supreme Court. Additionally, Goldford tellingly observes that Thomas Jefferson – departmentalist and opponent of judicial supremacy – was “correct to point to [the] essentially political nature” of constitutional interpretation, “[e]ven [though] Hamilton’s notion that constitutional interpretation is a technical, legal matter to be decided by courts won out over Jefferson’s notion that it is rather a value-laden political matter to be decided by the legislature and the people themselves” (p.286). This statement is certainly suggestive of the view that Jefferson was right, not only about the political nature of constitutional interpretation, but also about the institutional implications that follow from that political nature, and, thus, right to reject the primacy of courts in constitutional interpretation in favor of greater legislative authority. In sum, Goldford’s theory suggests that judicial supremacy is based on a misunderstanding of the nature of constitutional interpretation quite similar to that of orginalism, a misunderstanding that may also be thought to reject or undercut both the binding capacity and democratic character of the text of the Constitution.

A further interesting issue arises from Goldford’s view that the recognition of interpretive textualism as the proper interpretive approach – transcending originalism and nonoriginalism – ultimately means “legitimating difference and disagreement,” treating debate over constitutional meaning as an “affirmation of constitutionalism,” not a “betrayal” (p.202). This is so, Goldford maintains, because the essence of constitutionalism is satisfied by the binding capacity of the text itself without the need for privileged interpretation of the text (p.201). It is also true, Goldford argues, from a nonfoundationalist perspective, because there simply is no privileged interpretation, no “normative standard outside of interpretive debate,” whether originalist or nonoriginalist, to which one can appeal, but only the text and “the discourse of constitutional interpretation itself,” and thus “[t]here is and can be no demonstration” of [*907] substantive correctness in interpretation (p.201). Debates over constitutional interpretation, on this view, involve “nothing more and nothing less than persuasion” that an interpretation of the text should be accepted without even the possibility of a substantive demonstration that it is in fact “right” by virtue of an authoritative interpretation. Thus, there is no basis for treating interpretations of the text that one finds un- or less persuasive as illegitimate or as a betrayal of constitutionalism or the Constitution. Goldford thus concludes that originalism is wrong to reject the “legitimacy of [nonoriginalist] argument,” wrong to pose the choice between originalism and nonoriginalism as the choice between the “alternative[s] of conformity and rebellion” with respect to the authority of the Constitution (p. 291).

Whatever one may think of either Goldford’s thin textualist conception of constitutionalism or his rejection of the possibility of demonstrating substantively right answers to constitutional questions, it is worth exploring for a moment the relationship of his argument to the concept of constitutional illegitimacy, especially as this argument may relate to assertions of unconstitutionality. This issue arises because, once one accepts a reading of the Constitution as “persuasive” (though, of course, on Goldford’s view, not demonstrably right, since no such demonstration can occur), one may be forced to conclude that an act of government premised upon a rival reading of the Constitution is in conflict with the Constitution and thus is unconstitutional and “illegitimate” in a central sense of the word (i.e, not in accordance with law). Moreover, this point comes full circle to the question of (il)legitimacy in the act of constitutional interpretation itself – whether by courts or other governmental actors – because an act by one institution of government, such as a court, declaring another act of government unconstitutional can itself be challenged as inconsistent with the Constitution, or more bluntly, as unconstitutional. Consider, in this context, the following passage from Justice Black’s GRISWOLD dissent:

There is no provision of the Constitution which either expressly or impliedly rests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great UNCONSTITUTIONAL shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.3

Indeed, Goldford seems to recognize something very like Justice Black’s point, observing that when “originalism justifies its claim to exclusive interpretive legitimacy in terms of democracy, rule of law, separation of powers, and the like, it is doing nothing [*908] other than making an argument in terms of the fundamental principles – the political theory – of our social compact” or Constitution (p.287). Thus the originalist claim that judicial interpretations of the text of the Constitution should be grounded in a determinant and authoritative source of law, the original understanding, can itself be grounded in an analytically prior invocation of the broad principles of the Constitution which originalists may believe justify originalism as the proper interpretive method for judges. Not surprisingly, then, originalists who hold this view also routinely assert that judges who deviate from the original understanding seriously undermine or indeed violate the principles of the Constitution that justify originalism. The same analysis obtains for judicial supremacists, who may justify the interpretive supremacy of the Court in terms of constitutional principles of the separation of powers and the Rule of Law, and who may (therefore) also contend that rival assertions of interpretive authority by, say, Congress or the States in conflict with judicial supremacy (e.g., departmentalism or nullification) violate the Constitution and thus are illegitimate in a fundamental sense.

Significantly, then, if it is legitimate to debate the fundamental principles of our Constitution and to assert one’s understandings of the Constitution as persuasive, one might well think that it is also legitimate to assert that acts of government in conflict with one’s understanding are unconstitutional and thus “illegitimate” in at least one important sense of the word. If such assertions of unconstitutionality are not in fact legitimate, then the recognition of “legitimate disagreement” over constitutional meaning would seem incompatible with assertions of unconstitutionality, a disturbing conclusion. If such assertions of unconstitutionality are in fact legitimate, then originalists and nonoriginalists (and judicial supremacists and departmentalists) may invoke basic constitutional principles to say that their rivals are acting contrary to the Constitution. On this latter view, paradoxically, the recognition of initial legitimacy of disagreement about constitutional meaning appears to entail the legitimacy of disagreement about unconstitutionality, thereby legitimating rival assertions of unconstitutionality or constitutional illegitimacy. In sum, then, it if far from clear that the recognition of the legitimacy of rival interpretations of the Constitution should be thought to disable an originalist form asserting that nonoriginalist judicial action is illegitimate in an important sense (i.e., in tension or conflict with the law of the Constitution and thus unfaithful to it) or preclude a judicial supremacist from asserting that, say, nullification is illegitimate in the same fashion – anymore than it should be thought to prevent a court from invalidating an act of a legislature as unconstitutional.

Finally, the fact that originalists – as well as judicial supremacists – may justify their position by invoking principles found in the constitutional text raises an additional point about the evolution of constitutional discourse under Goldford’s theory of interpretive textualism, which endorses robust democratic debate about the more and less persuasive interpretations. If the principles found in the constitutional text are properly invoked in democratic [*909] debate about constitutional meaning, and if, as Goldford seems to recognize, the principles in the text can be invoked in support of particular authoritative interpretations of the text – by originalists (appealing to the authority of the founders in part as a necessary constraint on the power of judges under the separation of powers and federalism) and also by judicial supremacists (appealing to the authority of the U.S. Supreme Court in part as a necessary constraint on the power of legislators under the separation of powers and federalism) – one may wonder whether such debate is a natural outgrowth of interpretive textualism or is instead inconsistent with it, as Goldford’s analysis also suggests. For instance, one might think that such debates are simply part of the political process of popular discussion concerning such basic questions as whether the most persuasive interpretation of the Constitution’s principles either require judges to defer to the original understanding of the founders or require legislators to defer to the “precedential” understanding of the judges – or both. Perhaps the counter-point here may be as simple as the concept of inalienability: The people, even democratically, cannot alienate their democratic authority to decide what the Constitution means by deferring to the authority of “undemocratic” actors, such as the founders or the Court, even if that deference is revocable by the people democratically and itself flows from a popular understanding of the Constitution that favors interpretive deference on most questions. If so, the question of whether the democratic decision to defer to an authoritative interpreter is an appropriate exercise of democratic authority or an inappropriate (though revocable) extinguishment of that authority remains far from clear.

In any event, THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM is interesting, well-researched, thought-provoking, and thus well worthy of a careful reading. In sum, Goldford’s book is a praiseworthy addition to the perennial debates over constitutionalism and interpretive methodology.

NOTES:
1. This concern about “settlement” may involve an aspect of resolution of disagreement about constitutional meaning and/or an aspect of simple authoritative enforcement of constitutional norms on potential violators of the Constitution. See, e.g., Alexander and Schauer (1997, at 1369-1371) (defending judicial supremacy via the “settlement” thesis concerning the importance of authoritative resolution of constitutional disputes); FEDERALIST 78 (Alexander Hamilton) (observing that “specified exceptions to the legislative authority” as constitutional limitations “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void”).

2. FEDERALIST 78 (Alexander Hamilton) (“The interpretation of the laws is the proper and peculiar province of the courts”); MARBURY v. MADISON (1803) (“It is emphatically the province and duty of the judicial department to say what the law is”).

3. GRISWOLD v. CONNECTICUT (1965) (Black, J., dissenting) (emphasis added). Cf. OREGON v. MITCHELL [*910] (1970) (Harlan, J., concurring in part and dissenting in part) (“When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect”).

REFERENCES:
Alexander, Larry, and Frederick Schauer. 1997. “On Extrajudicial Constitutional Interpretation.” 110 HARVARD LAW REVIEW 1359-1387.

CASE REFERENCES:
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

MARBURY v. MADISON, 5 U.S. 137 (Cranch) (1803).

OREGON v. MITCHELL, 400 U.S. 112 (1970).

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© Copyright 2005 by the author, Jack Wade Nowlin

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INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM

by James A. Gardner. Chicago: University of Chicago Press. 2005. 312pp. Cloth $45.00. ISBN: 0-226-28337-2.

Reviewed by Steven Puro, Department of Political Science, St. Louis University. Email: Puro [at] slu.edu.

pp.900-902

Law and Legal Studies analysts frequently consider relationships between state and national constitutional systems. James A. Gardner, professor at the State University of New York at Buffalo Law School, combines theoretical and pragmatic orientations toward federalism principles embedded in the U.S. Constitution. He emphasizes complex and uncertain relationships between national courts’ and state courts’ interpretations of state (subnational) constitutional provisions. Gardner addresses these concerns through a “functional” interpretation of the role of states and state appellate courts. The central issues in INTERPRETING STATE CONSTITUTIONS are state constitutional authority within the United States federal scheme, and whether state constitutions can provide broader construction of individual liberties than the federal constitution. The book is intended for judicial and legal professionals, including political scientists, lawyers, state and national judges and other state public officials.

Judicial scholars generally focus upon United States Supreme Court constitutional discourse to examine civil liberties and economic parameters. State constitutional interpretation is often highlighted when state courts make civil liberties decisions substantially expanding or narrowing federal authority. Gardner sees an increasing role for state appellate courts to interpret state constitutional provisions. He assumes that federalism is a series of complex relationships that anticipates that state courts’ power and capacity can be deployed to resist abusive exercise of federal authority. Central to this analysis are interpretational conventions existing for a state constitutional document within U.S. federal legal system; and the political and legal inferences required to allow state power to restrict national authority. Gardner modifies several of his previously published book chapters and law review articles to raise and respond to these questions.

Gardner’s analysis provides substantial background in legal history and legal thought underlying state constitutional provisions. The U.S. Constitutional framers gave national and state courts different authority and responsibilities in the federal structure. In many subject areas intrepretive principles governing state appellate courts are distinct from those generally considered by federal appellate courts. In the U.S. system of federalism, federal courts’ application of national constitutional law to national government authority has a distinct legal status from state courts using state constitutions to resist national power. Gardner utilizes state litigation issues from a wide variety of states, ranging from capital punishment to libel suits, to [*901] demonstrate the diversity of state interpretational practices. Sufficient examples of state and federal courts’ overlapping authority are presented to permit readers to contemplate a variety of scenarios.

Gardner argues for a new and different language to suggest that U.S. state courts can have greater direct involvement in interpreting state and federal constitutional provisions. This direct involvement emphasizes interdependent relationships between state and national courts. His analysis sharply contrasts with scholars’ and judges’ support for New Judicial Federalism. New Judicial Federalism begins with state court interpretational conventions and connects that judicial analysis to state power. Further, according to these ideas, state and national courts interpret their respective constitutions as each representing “an independent, free-standing body of positive constitutional law” (p.x). Gardner reverses this analysis by beginning with state functions in a federal system; and, within the structure of the federal system, he finds broad authority for state court constitutional interpretations. He rejects New Judicial Federalism’s independent, free-standing idea and rather focuses upon complex independent and interdependent relationships between state and national courts. Underlying Gardner’s main assumption is the idea that state constitutions differ in substantial ways from the national Constitution and should be thought of “as a somewhat different species of constitution than their federal cousin” (p.17).

State Courts As “Agents Of Federalism”
Gardner analyzes the structural role of state courts in the federal system to check abuses of national power, especially national judicial power. Gardner argues that a state court could use interpretational mechanisms in its own state constitution to act as an agent of federalism under appropriate circumstances to counteract “unduly restrictive national protection for individual liberty” (p.193). He utilizes key assumptions about a proper functioning system of federalism and how state authority maintains liberty within the federal political and legal system. This analysis revises state judicial functions in the federal system and indicates that these courts should examine and independently evaluate federal judicial rulings construing the U.S. Constitution. Gardner’s functional analysis argues that state court interpretative powers vis à vis their state constitutions can increase state judicial power to provide more protection for individual rights than does the national Constitution. He speculates that state court exercise of this authority will also allow state executives and legislatures to deflect national authority.

State courts vary widely in their authority, and state constitutions differ in extending power to their judicial branch to serve as protectors of liberties and to compete with state executives and legislatures. Gardner develops interesting ideas concerning citizens’ trust of state courts. State judiciaries with limited authorization from the state constitution will have difficulty being an “agent” of federalism. Further, some state courts may have limited ability to engage in struggles between state and national authority when confronting conflict between state and national [*902] constitutions. Judicial scholars should undertake additional analysis concerning how judicial power is allocated at the state level.

State court ability to develop new interpretative mechanisms will require them to consider decisions affecting liberty beyond their own state’s boundaries. Gardner’s functional analysis should provide alternatives derived from their interpretative power. State courts could provide less protection for individual rights and redefine parameters of national law—e.g., in church-state activities or individual privacy matters. For example, state courts may be faced with interpreting new 2005 abortion-related state laws. The broadest of such legislative mandates are South Dakota’s ban on abortion in all instances if ROE v. WADE (1973) is overturned, and legislation in five states (Maryland, West Virginia, Florida, Oklahoma, and Arizona) that establishes a fetus as an independent victim in homicide cases. Narrower legislation provides that women receive state-written information before an abortion (Georgia, Oklahoma, South Dakota) and affording women an opportunity to view an ultrasound before obtaining an abortion (Indiana).

In the concluding chapter, Gardner provides a preliminary functional analysis to be applied in practice. He uses a dual-agent model of state constitutionalism where states are recognized as general agents that may be constrained by both the national government and by conflicting national and state constitutional requirements. This model challenges many dominant perspectives, mainly by viewing state constitutionalism as existing within adjustable grants of authority. Gardner’s model would be improved with additional directions concerning how dynamics of the federal system will allow both national and state courts to achieve collectively held goals.

Gardner’s clearly argued analysis places states and state constitutions in a significantly more important role than that considered by most legal and judicial scholars. His analytically sound prescriptions to state judges and state courts provide avenues and responsibilities for their defining civil liberties in the national environment. Gardner’s thought-provoking analysis requires reconsideration of U.S. federalism as applied to relationships between state and national courts. I concur that there is no single clear interpretational path for state courts’ analysis of their respective constitutions. Future research should examine instances in which state courts have taken initial steps towards the suggested interpretational approach.

CASE REFERENCE:
ROE v. WADE, 410 US 113 (1973).

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© Copyright 2005 by the author, Steven Puro.

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COMPLYING WITH EUROPE: EU HARMONIZATION AND SOFT LAW IN THE MEMBER STATES

by Gerda Falkner, Oliver Treib, Miriam Hartlapp and Simone Leiber. New York: Cambridge University Press, 2005. 404 pp. Hardback $75.00 / £45.00. ISBN: 0-521-84994-2. Paperback $34.99 / £19.99. ISBN: 0-521-61513-5.

Reviewed by Dagmar Soennecken, Department of Political Science, University of Toronto. E-mail: dagmar.soennecken [at] utoronto.ca .

pp.896-899

In COMPLYING WITH EUROPE, a group of German and Austrian political scientists present the results of an ambitious and comprehensive research project funded by the Max Planck Society on the domestic impact of a more recent “soft” style of European (EU) policymaking, namely EU Directives. In contrast to Regulations, that force member states to adopt one standard version of EU Law, EU Directives are “soft” but nevertheless binding policy-making instruments. EU Directives encourage harmonization among member states by setting only minimum standards, thereby leaving a great deal of flexibility to individual member states. States may go beyond the stated minimum or even opt out of certain aspects of a given Directive.

As is to be expected perhaps, the merits of this more recent style of policy-making for Europeanization are not yet clear, from either a theoretical or an empirical perspective. Gerda Falkner, Oliver Treib, Miriam Hartlapp and Simone Leiber dive into the debate by zooming in on EU social policy, an area of significant regulatory expansion in the 1990s, as the authors explain in detail in Chapter 3.

How successful are these Directives in bringing about the Europeanization of EU social policy, or “one social Europe?” In particular, how can we explain differences in their implementation? What discourages/encourages compliance? What role do domestic actors, the EU Commission and the European Court of Justice (ECJ) play? Have states gone beyond implementing minimal standards and why? These are some of the core questions animating this book.

The substantive chapters introduce and evaluate implementation of six representative Directives regarding labor law (which the authors deem the sub-field with the most controversial debates) across all 15 EU member states (at the time when the project started), primarily relying upon data from interviews with national experts. The six Directives discussed are: The Employment Contract Information Directive, the Pregnant Workers Directive, the Working Time Directive, the Young Workers Directive, the Parental Leave Directive, and finally, the Part-time Work Directive.

In a nutshell, the researchers conclude that non-compliance is a problem. All EU member states “misbehave” to some extent, but some states stand out as more frequent offenders than others. The Netherlands lead the list as most [*897] compliant, with France performing worst. Portugal, Italy, Greece, Belgium, Luxembourg, and Germany are also not doing as well as they should. This overall conclusion is not necessarily new surprising, but the empirical data amassed is perhaps a more important contribution, since all member states (at the time of publication) are included in the study. What do the authors make of these findings? Falkner, et al., offer a very thorough engagement of the theoretical literature on policy implementation and compliance. Separate chapters at the beginning and end of the book are dedicated to a discussion of the relevant literature. Questions of research design, measurement, and correlation vs. causation are discussed throughout.

The research team arrived at their final conclusion using two steps. First, they tested a number of existing hypotheses, ultimately to find that “no causal condition presupposed by existing theories is able to explain our empirical observations” (p.317). Do states fail to comply because they were unsuccessful in incorporating their own preferences into the EU Directive? Or perhaps failure to comply is an unintended consequence of domestic agency loss? Yet another explanation posits that governments may experience problems in implementing EU directives if they did not consult all relevant domestic actors in the initial EU level negotiations (the “upstream” phase). Moreover, adaptation may be simply difficult if the language of the directive is vague and unclear. Finally, implementation may depend on “the fit between rules and the policy legacy and the organization of interest groups in member states” (p.289). If there is a misfit between the directive and the principles found in a given a member state, implementation will not be easy.

The misfit explanation receives the most detailed attention in the book. Falkner and her colleagues try a number of ways to make this explanation work, but they ultimately conclude that political constellations at the national level can easily override deeply entrenched traditions or regulatory philosophies. But if there are no prior rules and procedures in place, as a counter-explanation suggests (p.294), should it not be easier for member states to implement new EU Directives? This explanation is also not supported by the evidence, say the authors.

Next, the authors re-examine their findings following the “grounded theory” approach. They suggest that member states can be grouped into three clusters of countries, “each showing a specific typical pattern of reacting to EU induced reform requirements” (p.318). The theme uniting the countries in each cluster is cultures of compliance, or more specifically modes “of treating implementation duties.” The ideal-type country clusters proposed by Falkner and her colleagues are the world of law observance, the world of domestic politics, and the world of neglect. Countries in each cluster are united by a set of internalized norms, which together form a culture of compliance. Since cultural factors are typically slow to change, Falkner and her co-authors suggest that countries can move from one world to another, yet only longitudinal studies will be able to track such shifts. Becoming more compliant is an uphill battle, according to the authors, as good compliance needs time to [*898] mature, and many small battles need to be won along the way to create a good culture of compliance (p.330).

As is apparent by the number of hypotheses briefly noted above, not to mention the fact that the analysis covers all EU member states, this book covers a lot of ground. The project brings together three doctoral theses, one postdoctoral project, plus the work of the team leader! Although I appreciate the attempt to be so comprehensive, at times I found myself wondering how else one could have balanced the theoretical findings with such a substantial amount of information.

I also wondered how exactly the three worlds of compliance differed from the misfit hypothesis. Certainly, the misfit explanation relies more heavily on historic institutionalist insights about the importance of rules and procedures, in particular policy legacies, while the explanation ultimately put forth by Falkner and her collaborators favours a cultural/constructivist angle. Still, the norms that bind the countries in the three typologies lead to institutionalized patterns, expectations and cost-benefit calculations (p.329). Why and how do these patterns differ from the ones put forth by the misfit explanation? It would have been interesting if the authors had returned to a discussion of the misfit model and spent more time detailing the differences between the two explanations beyond the obvious cultural angle.

Finally, Law & Courts readers will naturally expect a book on policy implementation, compliance and enforcement of EU law to discuss the role of domestic courts and the European Court of Justice (ECJ). The role of the ECJ is indeed discussed in most detail in Chapter 11, which details the role of the EU Commission (and by extension the ECJ) in bringing about compliance. The rest of the book, however, contains only occasional references to judgments by the domestic courts and the ECJ. The bibliography also contains relatively few references to works on courts or the ECJ. In other words, this is not a book that is interested in theorizing the role of the courts or the ECJ in bringing about EU harmonization.

The chapter on the role of the EU Commission in enforcing compliance is nevertheless an interesting read. It details the political process and negotiations before cases are even referred to (and let alone decided by) the ECJ, and subsequent member state responses in case of a judgment by the Court (usually against) the state in question. Considering that Falkner and her colleagues elsewhere discuss the participation of societal actors in the EU policy process (Ch. 12), it is surprising that this chapter only discusses cases brought to the ECJ in a very top-down fashion, i.e. by the EU Commission. The work of Karen Alter and Jeannette Vargas and others (Alter and Vargas, 2000), which is listed in the book’s bibliography, has certainly shown that societal actors, such as women’s groups, have used litigation before the ECJ to challenge national policies on gender equality. It would have been interesting to know whether the Directives discussed in this book have been subject to court challenges, and if not, why not. Are the reasons legal (i.e. the directives could not legally be challenged) or political? For example, as Falkner and her co-authors suggest, although a [*899] significant degree of variation exists among member states, social partners are overall very involved in EU policy making, even to the degree of being considered “formal co-actors” (p.229). This could be one explanation for the absence of litigation, if there is indeed none. Clearly, this could be an interesting area of future research by scholars interested in social policy litigation.

Overall, Law & Courts readers interested in EU law, especially in social policy convergence, particularly in the area of labour law, will find this an interesting addition to their library. Although it is not intended to be a book on law and the courts (or the ECJ), as mentioned above, the substantive discussion on the involvement of the ECJ in social policy harmonization is nevertheless interesting. To me, the debate about the implementation of EU law also raises interesting parallels to the debate about the implementation of court decisions. Much of the discussion concerning domestic opposition, and administrative vs. political implementation, is familiar. In other words, their discussion could be food for thought for scholars interested in the impact of court decisions. The book would also be useful to graduate students interested in debating methodology and research design, since the book explicitly discusses methodological choices, plus it tackles a large “n” comparison while relying heavily on qualitative data, albeit much of it translated into tables, figures and graphs.

REFERENCES:
Alter, Karen and Jeannette Vargas. 2000. “Explaining Variation in the Use of European Litigation Strategies: European Community Law and British Gender Equality Policy.” 33 COMPARATIVE POLITICAL STUDIES 452-82.

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© Copyright 2005 by the author, Dagmar Soennecken.

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