THE CULTURAL LIVES OF CAPITAL PUNISHMENT: COMPARATIVE PERSPECTIVES

by Austin Sarat and Christian Boulanger (eds.). Stanford, California: Stanford University Press, 2005. 360pp. Cloth. $65.00. ISBN: 0804752346. Paper. $24.95. ISBN: 0804752338

Reviewed by Darren A. Wheeler, Department of Political Science and Public Administration, University of North Florida. Email: dwheeler [at] unf.edu

pp.1063-1066

The United States recently witnessed its 1000th execution since the reestablishment of the death penalty in 1977, and the topic of capital punishment has once again been thrust into the national and international spotlight. What is it about the United States that makes it a virtual outcast among western democracies in the area of capital punishment? What accounts for the starkly different perspectives on capital punishment taken by retentionist countries like the United States and abolitionist ones found on the European continent and elsewhere? Austin Sarat’s and Christian Boulanger’s latest contribution to the death penalty literature, THE CULTURAL LIVES OF CAPITAL PUNISHMENT: COMPARATIVE PERSPECTIVES, argues that such differences are not just a result of differing governmental approaches to a policy issue, but they often reflect underlying cultural, historical, and social dynamics that, in many cases, are not easily changed. In other words, social, historical, and cultural influences shape the policies that decide if (or when) the state may kill. This volume takes the reader on a journey around the world in an attempt to discover and describe just how the cultural, moral, and social values of a population affect views of capital punishment and how these factors determine what constitutes acceptable (and unacceptable) instances of state killing. Sarat and Boulanger seek to increase knowledge about the “cultural lives” of the death penalty by advancing the argument that we need to “see how capital punishment ‘lives’ or ‘dies’ in the rest of the world, how images of state killing are produced and consumed elsewhere, how they are reflected, back and forth, in the emerging international judicial and political discourse on the penalty of death and its abolition” (p.1). As a result, this book fills a need for comparative analyses of the death penalty.

The book is organized into three sections and several important themes run throughout. The first section targets capital punishment in Europe and the Americas. The second examines state killing in Central and South Asia and the Middle East. The final section considers capital punishment in East and Southeast Asia. More specifically, individual chapters focus on Germany, Poland, the United States, Mexico, Israel, Palestine, Krygyzstan, India, Japan, Singapore, China, and South Korea.

Although no one theoretical framework ties the chapters together, a strong abolitionist theme permeates the entire book. A variety of sub-themes can be found as well. In the first section, readers are introduced to the argument [*1064] that abolishing the death penalty (or at least developing more “humane” methods of execution) is part of a “civilizing” process. The idea is that countries that have banned the death penalty have become more “civilized” and moved beyond the need to execute people for criminal behavior. Apart from these “civilizing” aspects, abolition of the death penalty is also an important factor in defining identity for some countries and their populations, as we see in the case of Europe. The second section reminds us that state killing can encompass more than just the death penalty. Indeed, “extra-judicial” execution (i.e., killing outside the confines of the legal system) is the primary means of state killing in many countries. The final section on East/Southeast Asia addresses the important question of whether there is any link between a country’s use of the death penalty and its level of democratization. Although it is often argued that democratic countries are less likely to employ the death penalty, this book provides several examples of Southeast Asian countries that defy this relationship.

There are a number of variations to the argument that abolition of the death penalty is a sign of a “civilizing” population. Short of abolition, it is still possible for countries to show signs that they are becoming more “civilized” by employing the death penalty in a more open, fair, and humane manner. In Chapter Two, Jurgen Martschukat reviews nineteenth century execution patterns in Germany to assess how moving the location of executions (from public to private) changes the impact and meaning conveyed to society. By “hiding” executions from the public or by introducing more “humane” methods, the executions themselves become more “civilized.” This particular theme also resurfaces in David Johnson’s chapter on Japan, where the death penalty remains safely removed from the public view.

Europeans have been quite vocal about their opposition to the death penalty and its use by other states in the international political system. In fact, as outlined by Evi Girling in Chapter Five, an abolitionist stance has become associated with a larger European identity and a fundamental part of European political organizations and international agreements. Louise Tyler’s examination of the death penalty and cultural identity in film (Chapter Six) is but one manifestation of this European identity. The chapters on Poland, Mexico, and Kyrgyzstan all illustrate the power of the international abolitionist movement and its influence on membership in the European/world community “in good standing.” Although the United States is often heavily criticized by Europeans, Judith Randle’s chapter on “The Cultural Lives of Capital Punishment in the United States” reminds us that America is not monolithic on the death penalty, but that there are regional and sub-cultural differences. Her observations regarding the cultural experiences in the North and South provide an interesting example of how cultural differences between regions of a country can influence capital punishment policy.

The reminder that not all state killings occur via the official legal system is among this volume’s most significant contributions. These “extra-judicial” executions shape the cultural environment and the public’s perception [*1065] of capital punishment. To consider the death penalty as an isolated legal sanction is to miss the larger picture. The chapter on India illustrates this point nicely. Although India has the death penalty, Julia Eckert reports that the legal system is slow and ossified, and as a consequence, there has been a widespread loss of public confidence in it. At the same time, there has been a rise in organized crime-linked and police-initiated “encounter killings” (essentially ambushes/shoot-outs with suspected criminals). The result is an interesting paradox. India’s judicial system allows for the death penalty but the process is alarmingly slow and inefficient. These “encounter killings” are of dubious legality but are quick and efficient. Both are part of the public cultural experience of capital punishment in India.

The chapters on Israel and Kyrgyzstan discuss the role that history plays in shaping the contemporary public attitudes towards the death penalty and state killing. As in Poland the Soviet legacy in Kyrgyzstan looms large. One might think that indiscriminate use of the death penalty under Soviet rule would color public opinion against it. However, the comparatively “lawless” period that followed Soviet withdrawal from Kyrgyzstan has created an environment where extra-judicial killings (e.g., death occurring in prison) are more common than formal state executions. The government publicly rejects the death penalty in an attempt to secure international favor, while it engages in other forms of state killings. In Israel we see a carefully cultivated state position on the death penalty designed to reduce the ability of opposition groups to produce martyrs in their battle against the Israeli state. It is this ongoing battle for the perceived survival of the Israeli state that continues to shape public opinion of capital punishment in Israel.

Is there a relationship between democratization and the abolition of capital punishment? The evidence is, at best, mixed, and the countries examined in section three provide stark examples to the contrary. Countries such as China, Japan, and Singapore have added an interesting twist to the “civilizing” argument discussed above. Instead of viewing abolition of the death penalty as a “civilizing” indicator, these states have incorporated a retentionist viewpoint into their political, economic, and social fabrics. Indeed, the chapter on Singapore provides a wonderful example of how “the entire system of criminal justice . . . is oriented toward the preservation of order and the enforcement of a culture of developmentalism seeking to sustain the process of development and nation building” (p.304). In these cultures, the well-being of society is emphasized so that capital punishment is viewed as a positive tool of state development, rather than as a negative reflection of state policy.

The themes in this book are primarily topical rather than theoretical or methodological. The variation in the approaches taken in each chapter reflects the editors’ belief in a healthy “methodological eclecticism.” This collection includes various historical approaches as well as “images of state killing, punishment, and civilization in official discourse . . . cinema . . . and the popular mind” (p.31). [*1066]

Readers will certainly get more out of this volume if they have at least a somewhat rudimentary background in world politics, culture and politics, or the death penalty and comparative legal systems. It would make an appropriate supplemental text in any class where these subjects are covered. The book could serve as a point of departure for a global cultural analysis of capital punishment, or it might be used to examine a particular region such as Asia or Europe. Moreover, its utility is not confined to political science and law, because the cultural emphasis is quite relevant to philosophy, anthropology, and sociology.

As technological advances bring the world closer together, the policies of one state invariably affects other states. The War on Terror provides a good example. Although the overwhelming majority of countries wish to assist in the War on Terror, many are also reluctant to extradite terror suspects to the United States without specific assurances regarding the use of capital punishment. It is important to remember that policy differences are not simply products of governments but reflect the social and cultural beliefs that are major components of regional and national identities. Exploring the cultural dynamics of capital punishment, in addition to politics and law, will provide a fuller, richer discussion of the future of capital punishment as a state tool around the world.

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© Copyright 2005 by the author, Darren A. Wheeler.

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THE MOST DANGEROUS BRANCH: HOW THE SUPREME COURT OF CANADA HAS UNDERMINED OUR LAW AND OUR DEMOCRACY

by Robert Ivan Martin. Montreal: McGill-Queen’s University Press. 320pp. Cloth. CA $75.00/US $75.00/UK £57.00. ISBN: 0773526145. Paper. CA $29.95/US $29.95/UK £22.95. ISBN: 0773529179.

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

pp.1060-1062

Scholars of comparative constitutional law and jurisprudence will unquestionably take interest in Robert Ivan Martin’s THE MOST DANGEROUS BRANCH. Following in the line of other critics of the Canadian Supreme Court (see, e.g. Morton and Knopff 2000; Manfredi 2001), Martin offers a pointed criticism of the collective activism of the Canadian Court and the unabashed political activity of its individual members. For anyone interested in a substantive discussion of the more controversial developments in Canadian constitutionalism since the patriation of the constitution and establishment of the Charter of Rights and Freedoms, Martin’s book will be an enlightening resource, but one of limited scholarly use.

Martin offers very little new material. The work is an unapologetic polemic against what Martin regards as the hijacking of Canadian constitutionalism by various forces on the political left (or the political postmodern). While Martin casts his analysis in terms of the proper role of courts and judges in a democracy, it is clear from the outset that his analysis is driven more by disagreements he has concerning specific decisions of the Supreme Court and public statements made by particular members of the court—especially Justice L’Heureux Dubé.

Martin gets off to a reasonable start. The study of constitutional law and jurisprudence has evolved far beyond the antiquated notion that judges “find law.” Schools of thought, driven by the critical legal studies movement, feminist analysis, the political jurisprudence, the attitudinal model and so forth, all have indicated that the analysis and development of law are colored by such factors as culture and personal beliefs. In this same spirit, Martin opens with the assertion that judicial review in Canada is “seriously lacking in principle and reason and characterized to an unacceptable degree by personal preference and personal power” (p.5). He therefore condemns the Canadian Supreme Court (and, by extension the Canadian legal academy), because its manner of making decisions has “compromised the structure and process upon which our constitutional democracy depends” (p.8).

Martin contends that the perversion of Canadian constitutional law is due to the propagation of a new “orthodoxy” of intellectual, cultural and moral relativism that is fostered in the Canadian legal academy. It promotes a postmodern, group-driven [*1061] conceptualization of identity politics and rights that debases notions of citizenship and individual liberty. In light of the tenor and intensity of his opening arguments, it will not surprise the reader that it takes Martin only twenty-three pages before calling for the abolishment of the Supreme Court.

To the extent that Martin’s attacks are driven by his disagreement with the decisions of the Canadian Court, it would be easy to dismiss his analysis as nothing more than the complaint of one who finds himself on the losing side of a contemporary political battle. On the other hand, if one pauses, it is easier to look past Martin’s anger and frustration and sympathize with him somewhat.

Contemporary scholarship is rife with analyses that contend that law is gendered, racially biased, and so forth. In this respect, Martin’s analysis actually compares with much of the scholarship that he criticizes. Unfortunately for Martin, the scholars with whom he disagrees have gained more influence in the legal academy than Martin would prefer. Whereas he might have represented the “canon” against which critical legal scholars and feminists direct their analyses, Martin now finds himself criticizing a new canon in which these opposing lines of thought have gained a foothold.

Having said this, it is still important to point out some of the questionable aspects in Martin’s reasoning. He offers a fair criticism of the Canadian Supreme Court’s practice of “reading substance in” to challenged legislation in order essentially to amend it on behalf of plaintiff groups. Thus, the court has extended human rights protections to groups such as homosexuals (see, e.g., VRIEND v. ALBERTA) who were not included in legislation written to protect other groups.

This practice clearly amounts to a derailing of the legislative process and, when applied to the constitution, amounts to amending it by judicial fiat. In the United States, the Supreme Court has struck down the line item veto because it altered the system of separated powers and checks and balances and essentially altered the constitutional definition of “legislation” (CLINTON v. CITY OF NEW YORK). The court ruled that this could not be done by ordinary legislation and therefore required a constitutional amendment. Since legislation as “amended” (either by judicial reading in or presidential editing out) might never have been passed by a parliamentary or congressional majority in the first place, Martin’s complaint about the Canadian judicial practice of “reading in” clearly resonates with concerns about the legitimacy of majority rule.

Nonetheless, Martin sometimes seems to overlook the obvious and to misdirect his criticism. First, judicial power depends on cooperation with (if not support of) the other branches of government. To the extent that the parliament and provincial legislatures acquiesce to judicial rulings (however controversial Martin may find them), one must conclude that they accept the decisions’ legitimacy.

As well, Martin does not address the fact that Canadian legislatures are empowered to resist judicial encroachments by virtue of section 33 of the Charter (the notwithstanding clause). [*1062] While scholars, such as Manfredi (2001, at 4-5), have said that the notwithstanding clause has atrophied, it is nonetheless a part of the Charter and does provide the legislatures with a powerful defense against judicial activism. So, why is it not invoked?

Part of the reason may be what Martin himself describes as “the obsession with rights and the flight from politics” in Canada (pp.43ff.). The Charter establishes the power of judicial review, recognizes the rights of minority groups, and endorses affirmative action on their behalf. Under these circumstances, the evolution of an activist court (or, at least, a court that is busier than Martin would approve) is hardly surprising. Similarly, the Charter invites a vibrant culture of interest group litigation—especially when it is driven by the government-funded court challenges program.

All of this may be lamentable. Martin is not the first Canadian scholar to voice harsh complaints and criticisms. But, if Canadian democracy is in such trouble, why is there no popular outcry? Throughout, Martin asserts that the elite avatars of orthodoxy (comparable to Nazi bullies—see p.195) hijacked the Charter-based political system and have sought to propagate their own vision of a just society. He calls upon the Canadian people to resist them and “reclaim the country” from the court.

But, what is stopping them? Perhaps the situation Martin describes and decries is not all that unpopular. The polls are still open, and lawyers and scholars who agree with Martin can certainly mobilize to challenge this new orthodoxy.

It may simply be the case that Martin has misread the Canadian populace. Maybe they do not disapprove of the political environment created in the wake of the Charter. On the other hand, it could also be the case that Martin (along with other critics of the politics fostered by the Charter) has indeed identified a serious threat to Canadian democracy and it simply will require time for them to capture the public’s attention.

In any event, the personal, ad hominem nature of much of Martin’s analysis will certainly test the patience of even the most charitable reader. While THE MOST DANGEROUS BRANCH does represent an important and enduring aspect of contemporary Canadian constitutional politics that scholars of comparative politics ought to know about, readers would be better served by seeking out more balanced analyses of the subject.

REFERENCES:
Manfredi, Christopher. 2001. JUDICIAL POWER AND THE CHARTER: CANADA AND THE PARADOX OF LIBERAL CONSTITUTIONALISM. New York: Oxford University Press

Morton, F. L. and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Peterborough, Ontario: Broadview Press

CASE REFERENCES:
CLINTON v. CITY OF NEW YORK, 524 U.S. 417 (1998).

VRIEND v. ALBERTA, [1998] 1 S. C. R. 493.

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© Copyright 2005 by the author, Mark Rush.

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ASBESTOS LITIGATION

by Stephen J. Carroll, Deborah R. Hensler, Jennifer Gross, Elizabeth M. Sloss, Matthias Schonlau, Allan Abrahamse, J. Scott Ashwood. Santa Monica, CA: RAND Corporation, 2005. 206pp. Paper. $20.00. ISBN 0-8330-3078-7.

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

pp.1057-1059

It is impossible to overemphasize the impact that asbestos litigation has had on the American civil litigation system. Cases concerning asbestos have clogged both the state and federal courts for decades. The litigation has driven some companies into bankruptcy, while others have cautioned that it could do the same for them in the future. In addition, the costs (and feared costs) of asbestos liability have had a significant impact on the insurance industry. All of these factors have contributed to efforts on the national level to craft a legislative solution to the problem. But such a solution has been elusive, as the various interest groups involved dispute what should be done. The gridlock continues today.

Somewhat paradoxically given its impact on the civil justice system, the business community and the insurance industry, much hard data about asbestos litigation are lacking. Answers to such basic questions as the financial cost the of litigation and the number of claimants and defendants has been extraordinarily difficult to capture. And this difficulty is not merely frustrating for the researcher; it has significant practical implications, including its significance to the policy debate over the appropriate legislative response.

ASBESTOS LITIGATION from the RAND Corporation’s Institute for Civil Justice seeks to fill at least part of the information void. The work, an update of a previous RAND Corporation effort from 2002, is an extraordinarily valuable resource for anyone interested in asbestos litigation. There are things that I wish were addressed in the study (such as more emphasis on the role of insurance), but, by and large, the omissions are a function of the environment in which the authors were working. As is clear in the study and as I summarize at points below, that environment is one in which data are often hard to come by. In the balance of this review I summarize and comment upon the content of the study.

ASBESTOS LITIGATION has seven principal chapters that, taken together, cover much of the relevant landscape. In addition, there are four appendices providing additional data on several issues discussed in the main text. The authors first provide an introduction and overview of the report, including the terminology used, the scope of the effort, and the research methodology (Chapter One). One of the main strengths of the book comes through in this initial chapter. The authors strive mightily, including through the selection of terminology, to remain neutral in a world in which there are many “sides.” [*1058] Such neutrality is important to make the data more useful in the ongoing legal and policy debates. The authors should be commended for this effort.

Chapter Two provides an overview of the injuries caused by asbestos, information that is useful to understand some of the problems associated with predicting costs associated with litigation. As the authors explain, costs depend heavily on the types of injuries at issue in litigation, as well as in unfiled claims. It is also critical to understanding the debate concerning current efforts to develop a federal legislative solution. The injury-related information is augmented in two of the appendices dealing with projected rates of certain asbestos-related diseases.

Chapter Three focuses on what the authors refer to as “asbestos litigation dynamics.” This chapter would be interesting if all it did was discuss the evolution of asbestos litigation over the past several decades. The authors’ discussion about this evolution deals with a range of issues, such as the growth of judicial techniques to handle the explosion of asbestos cases and the interaction between and among state and federal courts. But the Chapter is significant because it also provides some quite interesting statistics concerning trends in jury verdicts and forum selection. The conclusions concerning the impact of factors such as consolidation on jury verdicts are particularly interesting.

Chapter Four separately considers claimants and defendants. The authors’ mission in this part of the book is to estimate the total number of claimants, as well as the universe of defendants. It is here that one begins to encounter seriously the frustrating reality of a lack of readily accessible information in the “asbestos world.” For example, one might think that determining the number of claimants and defendants would be a relatively easy (if time-consuming) task. As the authors make clear, however, that is not the case. In great detail, they explain the approaches they took in an effort to gather and extrapolate relevant information. Their work in this regard should be quite helpful in making policy. Simply put, without knowing the scope of the problem it seems inconceivable to discuss solutions.

Chapter Five continues the authors’ search for illusive hard data. This time the focus is on “costs and compensation” of the asbestos problem. If nothing else, the authors’ work on this project makes clear that for asbestos, as well as for other mass torts matters, courts and policymakers should devote greater resources to comprehensive data collection, especially for matters pending in state courts. Without such an effort, rational policymaking, while not impossible, is certainly more difficult. In any event, Chapter Five provides the authors’ best estimates of the total spending on asbestos claims through 2004 ($70 billion), broken down by defense transaction costs ($21 billion), claimants’ transaction costs ($19 billion), and net compensation to victims ($30 billion). It is possible to take some issue with the methodology used to estimate certain costs, such as settlement amounts. But at the end of the day, one is left with the feeling that the conclusions the authors reach are, if not precisely correct, certainly in the ballpark. [*1059]

Chapter Six addresses bankruptcies. As with the earlier sections, one is struck by the amount of effort required simply to provide an accurate picture of the scope of bankruptcies based on incurred and projected asbestos liabilities. This effort should be greatly appreciated by those working in the field. In addition to this empirical work, the chapter also usefully summarizes the various insolvency approaches taken concerning liability and canvases the broader economic impact of asbestos-related bankruptcies. The final appendix provides additional information concerning “major asbestos bankruptcies.”

In Chapter Seven the authors take a brief look into the future of litigation and resolution of the asbestos crisis more broadly. Prominent among the considerations is a potential federal legislative solution. However, the authors recognize that political realities may make such a solution impossible to reach or perhaps sub-optimal in result.

In sum, ASBESTOS LITIGATION is a welcome contribution to the literature concerning a significant mass tort phenomenon in the United States. While it has some shortcomings discussed above, it is well worth study by academics. And it should be required reading for policymakers and litigation players alike.

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© Copyright 2005 by the author, Michael P. Allen.

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RATTLING THE CAGE: TOWARD LEGAL RIGHTS FOR ANIMALS | DRAWING THE LINE: SCIENCE AND THE CASE FOR ANIMAL RIGHTS

RATTLING THE CAGE: TOWARD LEGAL RIGHTS FOR ANIMALS, by Steven M. Wise ; foreword by Jane Goodall. Cambridge, MA: Perseus Publishing, 2001. 362pp. Paper US $18.50 / CAN $28.95 ISBN: 0-7382-0437-4.

DRAWING THE LINE: SCIENCE AND THE CASE FOR ANIMAL RIGHTS, by Steven M. Wise. Cambridge, MA: Perseus Publishing, 2003. 322pp. Paper US $18.00 / CAN $27.50 / UK £10.99. ISBN: 0-7382-0810-8.

Reviewed by Deborah E. Sulzbach, Drake University Law Library, Drake University. Email:Deborah.Sulzbach [at] drake.edu

pp.1054-1056

In RATTLING THE CAGE and DRAWING THE LINE, Harvard law professor and animal rights advocate Stephen Wise describes scientific, historical and legal traditions that support his theory that all nonhuman animals are deserving of legal rights. Because animals are unable to do it for themselves, Wise has made it his mission to convince others that basic rights must be given to these creatures. Both books present heartfelt and impassioned pleas for equal rights for all animals and insist that they should be afforded freedom from confinement and abuse.

RATTLING THE CAGE focuses specifically on chimpanzees and bonobos (pygmy chimpanzees), man’s closet living relatives. Chimpanzees share more than 98% of identical DNA with man, and due to this great similarity, Wise maintains that personhood must be afforded to them. He offers interesting vignettes of the work being done with chimpanzees and bonobos using American Sign Language and reveals how well they perform on human infant tests. But he also recounts horrific cruelties inflicted upon research animals, specifically Jerom and his cellmates, chimpanzees housed at the Yerkes Regional Primate Research Center in Atlanta. Such vivid recounting of experimentation reinforces the call for personhood for these animals.

Wise also discusses the evolution of the legal system from the Code of Hammurabi to the present. In the past, both common and criminal law affirmed that the abuse of animals was not a crime. Wise points to one of the most significant hurdles encountered by those advocating animal rights – man’s belief in the concept of a Great Chain of Being which hierarchically places humans just below God and animals so far down on that chain that they are deemed property. He recounts customs through the ages illustrating man’s belief that animals were created to serve them and therefore are unworthy of basic rights. In the middle ages, killer animals were tried and punished just as their human counterparts. Animals were executed for maiming or killing people or were surrendered to the injured person or to his family. Animals were hanged for eating children or killing people. Victims of bestiality were executed along with their human attacker. These examples further highlight the fact that laws through the ages supported the premise that animals were nothing more than [*1055] chattel and defined how nonhuman animals were treated in society.

RATTLING THE CAGE presents examples of other captive animals who need legal intervention, such as dolphins and rabbits. However, because they are most like us, Wise focuses specifically upon chimpanzees and bonobos to make his points. There are sections of this book that are a little mind-numbing; however, the chapters on the signing chimpanzees and the testing of animals on human infant developmental scales are fascinating.

In DRAWING THE LINE, Wise continues his argument for granting legal personhood to animals, expanding his case to include gorillas, orangutans, parrots, dolphins, elephants, dogs and honeybees. Wise presents examples of animal intelligence and behavior, recounting his personal experiences with some of the world’s most famous animal experts and the remarkable creatures they work with. These encounters, which make this work much more readable than his previous title, illustrate his theory that animals who possess certain mental abilities are worthy of basic legal rights.

In this book, Wise applies his theory of “practical autonomy” (p.7) to animals. If it meets each of the theory’s three requirements, that species should be granted legal personhood. The three criteria are whether the animal: “1) can desire ; 2) can intentionally act to fulfill her desires; and 3) possesses a sense of self sufficiency to allow her to understand, even dimly, that it is she who wants something and it is she who is trying to get it” (p.32). Examples of nonhuman animals that meet Wise’s practical autonomy guidelines, thus meriting equal rights and freedom from confinement and abuse, are presented.

Each chapter highlights one of Wise’s animal encounters and recounts his experiences from the field. A chapter is devoted exclusively to Koko the remarkable signing gorilla and Wise’s interactions with her. He explores her world, showcasing her great mental abilities, such as her cognition of events around her, the playing of practical jokes on visitors and her ability to carry on conversations with her human caretakers. A detailed recounting of his actual conversations with Koko is also presented. Koko has performed well on standardized tests for human children, consistently registering an IQ between 70 and 95. Due to her brightness and her overwhelming success at meeting the practical autonomy criteria, Wise maintains that Koko is entitled to legal personhood.

Wise also presents additional examples of his personal encounters with other extraordinary animals. Stories about Alex the African parrot’s reasoning and calculating at the level of a four-year-old, Echo the Elephant’s tool use and problem solving, and even Wise’s own dog Marbury’s communication skills further illustrate the author’s belief that, although displaying differing levels of intelligence, emotion, and language skills, each meets the practical autonomy standard and is entitled to basic legal rights.

Wise’s theories and beliefs are sure to provoke discussion and controversy. Evolutionists will willingly accept his arguments; however, creationists and the deeply religious may not be so [*1056] enthusiastic. His impassioned plea for equal rights for animals of all kinds is based in the theory of evolution. Those not so inclined may find his beliefs blasphemous.

Steven Wise’s books make passionate pleas for legal personhood for all animals. In each, Wise delves into scientific findings, philosophical principles and legal precedents, utilizing them to support his case. He maintains that one of the fundamental problems encountered today by those seeking legal rights for animals is the law itself. However, as laws evolved to emancipate slaves and enfranchise women, Wise believes our laws will one day evolve to establish legal rights for all animals due to their astounding similarity to humans and their advanced mental capabilities.

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© Copyright 2005 by the author, Deborah E. Sulzbach.

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JUDGING THE PAST IN UNIFIED GERMANY

by A. James McAdams. Cambridge: Cambridge University Press, 2001. 264pp. Cloth £40.00/$53.00. ISBN: 0-521-80208-3. Paper £14.99/$21.99. ISBN: 0-521-00139-0.

Reviewed by Ernesto Verdeja, Department of Government, Wesleyan University. Email: everdeja[at]Wesleyan.edu.

pp.1049-1053

Over the past twenty years, a number of countries have undergone transitions from authoritarianism or civil war to democracy. A major challenge for successor elites has been how to address legacies of human rights violations. Although the appropriate normative objectives may seem clear when presented abstractly – accountability for rights violators; truthful account of the past; symbolic recognition and material reparations for victims of the previous regime; societal reconciliation; and establishment of the rule of law – elites’ responses are constrained by the particularities of the transition, and it is rarely if ever the case that they can pursue all of their goals without resistance or challenge.

Context certainly matters. In the Latin American transitions of the eighties and early nineties there remained a significant threat that armed forces would overthrow democratic leaders pursuing prosecutions, so many of those nations sought truth-telling combined with amnesties as acceptable alternatives. Only relatively recently have some of these governments actively pushed for prosecutions, as earlier constraints have loosened and greater possibilities to deal with the past have developed. Similarly, South Africa’s transition emphasized truth-telling, selected amnesties and only a handful of prosecutions to deal with the history of apartheid.

A particularly interesting example of transitional justice is found in the case of the Federal Republic of Germany (FRG, or West Germany), a nation that found itself in an enviably stronger position than many of its cohorts around the world as it dealt with the legacy of violations in the German Democratic Republic (GDR, or East Germany) during unification. Unlike the Latin American countries or South Africa, the FRG did not face the threat of military coup or constitutional crisis as it addressed these legacies. Indeed, the FRG was significantly more powerful than its eastern counterpart, and most scholars have pointed to the German case as one exhibiting little prior constraint on the actions of the new regime.

James McAdams’ excellent book, JUDGING THE PAST IN UNIFIED GERMANY, clearly identifies and analyzes the ways in which Helmut Kohl’s government decided to address the past. McAdams shows that while the government undoubtedly enjoyed wider latitude than other nations, its leaders were still constrained in what they could do. He provocatively shows how Bonn faced restrictions on the policies it could pursue due to the prior actions of the East German elites and, more generally, [*1050] the effects of decades of communist rule. The book focuses on four of the most important forms of retrospective justice used by West German leaders: criminal justice, characterized by prosecutions of GDR officials and guards; disqualifying justice, which relied on the massive collection of files assembled by the East German Ministry of State Security (the Stasi) to purge former Eastern civil servants suspected of collaboration; moral justice, exemplified by a commission assembled to assess the ‘moral’ responsibility borne by certain sectors of society and the population as a whole in maintaining communism; and, corrective justice, the effort at returning private property to those from whom it had been wrongfully taken by GDR.

The first issue, criminal justice, is especially interesting. East German border guards were prosecuted for murdering civilians attempting to cross to the West; however, prosecutors faced a difficult ex post facto challenge in holding guards responsible for what was, technically speaking, a legally sanctioned preventive action of escape. The old debates about the relative weight of positive and normative law emerged in public discourse over these cases. More interesting, however, was the fact that the trial of the former East German leader Erich Honecker and his associates for abuses of power actually began in East Germany before unification – it was largely an effort by his successor, Egon Krenz, to shore up legitimacy for what was clearly a regime in its last throes. Although the ruling Socialist Unity Party, or SED, was unable to stay in power, its self-serving prosecutorial strategy had important implications for the future. After unification in October 1990, the proceedings were transferred to a new prosecutor’s office where prosecutors effectively had little choice but to continue with a program that had significant popular support. McAdams shows that even though many West German officials had little interest in pursuing criminal prosecutions because of their disruptive and unpredictable nature, public pressure pushed them to continue with the trials.

Officials also had few options for dealing with the millions of secret files collected by the Stasi. The Stasi had begun collecting information on East German citizens in 1950, and over the following decades had amassed a formidable archive through the work of its agents and collaborators. By the time of unification, heated public debate over the files effectively limited the scope of action available to the government. Some major public voices argued that the files should be destroyed, for making them public could lead to a cycle of vengeance and recrimination that would be difficult to break. Others argued that the files should be open to those who were spied on or otherwise targeted by the GDR. McAdams traces the complex process by which the German parliament, the Bundestag, finally decided to give access to the files to citizens after more than a year of public rancor, showing how the options available to political leaders were determined largely by public discourse surrounding this contentious issue.

A related debate emerged over whether the files should be used to vet civil servants. Should those whose files indicated they were Stasi collaborators be allowed to retain their jobs? Part of the difficulty was that the files often contained erroneous, incomplete or even [*1051] deliberately false information, so dismissal due to an accusation of collaboration, which could destroy a person’s reputation as well as leave him or her unemployed, became a problematic response to a very real problem. The policy of vetting was essentially set by the GDR more than a year before unification, when important dissidents were accused of having been collaborators. During that period, pressure developed to use the files to investigate the full scope of collaboration. When the two Germanys united, Bonn effectively found itself in a situation where it had to continue with the vetting process.

In 1992, the Bundestag decided to investigate the “causes and consequences of the SED dictatorship” by assembling a committee of inquiry. Aside from its aim to achieve an accurate historical understanding, the committee also served a moral-didactic purpose, insofar as it sought to teach the population about the injustices and abuses of the communist dictatorship and their own role in supporting it. Pressure for such an initiative came from East German dissidents and others who were concerned that their compatriots had not learned the moral lessons of communist rule. They feared that without such a clear condemnation of the past, Easterners would romanticize, or at the very least remain ambivalent toward, communism. The committee, then, was meant to promote “moral justice.” In the end, its work was considered so successful that parliament voted for an additional round of investigations in 1995.

Perhaps the most divisive form of retrospective justice concerned property rights. The GDR had committed numerous property-related injustices by seizing homes, apartments, businesses and land without compensation. How could the new regime resolve such a complex issue? In the early years of unification, more than a million property restitution claims were filed on over two million pieces of property. Western leaders were confronted with the mammoth task of developing criteria for adjudicating rightful ownership claims that would satisfy East German popular demands and also be in accordance with their own precedents. Part of the difficulty stemmed from the GDR’s decision to allow for limited property restitution (for a small fee) only a few months before unification. Such a policy essentially forced Bonn to continue with the program after unification, but the challenges of dealing with multiple claims stemming from property seizures during the Soviet ‘reform’ policies of 1945-9, confiscations during the building of the Berlin Wall in 1961-2, and myriad other cases were significant. Furthermore, the FRG was constrained by its own past actions. Since the 1950s, successive governments had returned wrongfully seized property to Jewish citizens and other minorities. Millions of deutschmarks were paid in compensation as well. With such a history of reparation, and considering that the GDR had never carried out a similar policy toward its own citizens, the leaders of unified Germany had little choice but to provide some form of redress.

McAdams shows that in all of these situations, the West Germans were constrained by the actions of previous East German leaders as well as pressure from civil society. He stresses, of [*1052] course, that the FRG enjoyed superior economic and political power, but underscores how this was not enough to permit the unrestrained implementation of preferred policy. The book convincingly argues that even powerful successor elites work within a limited set of possibilities. And here lies the major contribution of the book. By giving us a detailed account of the political landscape of transitional Germany, McAdams challenges one of the key assumptions of transitional justice literature: that elites who successfully impose a new regime on defeated adversaries effectively begin with a tabula rasa. JUDGING THE PAST IN UNIFIED GERMANY undermines this through a nuanced and careful analysis of how the past continues to shape the possibilities and limitations of future policy on even the most powerful of successor regimes.

Many other thinkers have approached post-socialist transitions from explicitly normative perspectives. John Borneman (1997) has argued that prosecutions and property restitution further the rule of law, foster public trust in state institutions, and signal that the state is publicly committed to affirming the dignity of victims. Others, such as Bruce Ackerman (1992) have remained skeptical about retrospective justice because of the formidable conceptual challenges in a situation where much of the population can be seen as both a victim of communist authoritarianism and complicit in maintaining that system. Ackerman argues that the state should simply burn the files and provide some compensation to easily identifiable victims. Jon Elster (1992) has gone even further and argued that any attempt at retrospective justice is problematic, precisely because of both the challenges posed by the scope and type of violations characteristic of these regimes and the difficulty in measuring certain forms of wrongs. One can seek either complete justice or no justice, but any half measures carry their own injustices toward those whose claims have been ignored.

McAdams eschews making general normative claims about the value and utility of these different measures, and instead provides us with an excellent overview and critique of their strengths and shortcomings. Some readers may wish for a more explicit discussion of where he stands on these normative issues, since any analytical assessment of retrospective justice contains within it at least some implicit normative claims, but without elaboration these may remain partially hidden or otherwise unclear. Such a criticism would miss the point of the book. McAdams is clearly more interested in detailing the complexity of different retrospective strategies, and how they may work together or against one another within a particular set of transitional constraints. As he states: “Rather than weighing in on the morality of one or the other position, I take the pursuit of some form of retrospective justice as a given . . . and seek to articulate a means of evaluating success or failure” (p.xiii). JUDGING THE PAST IN UNIFIED GERMANY certainly achieves this goal, and signals a major contribution to our understanding of a fascinating case of transitional justice.

REFERENCES:
Ackerman, Bruce. 1992. THE FUTURE OF LIBERAL REVOLUTION. New Haven: Yale University Press. [*1053]

Borneman, John. 1997. SETTLING ACCOUNTS: VIOLENCE, JUSTICE, AND ACCOUNTABILITY IN POSTSOCIALIST EUROPE. Princeton: Princeton University Press.

Elster, Jon. 1992. “On Doing What One Can: An Argument Against Restitution And Retribution As A Means Of Overcoming The Communist Legacy.” 1 EAST EUROPEAN CONSTITUTIONAL REVIEW 15.

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© Copyright 2005 by the author, Ernesto Verdeja.

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RACE, LAW AND RESISTANCE

by Patricia Tuitt. London, Glasshouse Press, 2004. 138pp. Paperback. £25.00/$50.00. ISBN : 1904385060.

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

pp.1044-1048

This slender monograph contains many a galaxy of dazzling insights concerning violence in the making /unmaking of modern and postcolonial law. It brings a breath of fresh air to the now somewhat conventional bodies of critical legal and race studies and some “post-feminist” scholarship, by re-situating them in slave and the postcolonial contexts. Indeed, Patricia Tuitt accomplishes much more. She resurrects the thoughts of Frantz Fanon amidst more current Benjamin-Derrida understandings of the foundational and reiterative violence of modern law. She further provides fresh and rather against-the-grain approaches to contemporary “postcolonial” law and literature. This work offers a new grasp of the “pedagogy of the oppressed” in an otherwise triumphant era of hyper-globalization, despite the presence of two “terror” wars—the “wars” of and on “terror” (Baxi 2005).

Given the range of its narrative purpose, perhaps it is not all unfair to say at the outset that the author ought to have resisted the publisher’s space constraints and the relatively heavy price. The latter forbids access by Global South readership outside some insurgency blessed acts of undetected copyright piracy! In addition, the bouquet of insights need not have been so tightly laced. I very much hope that the richly merited second enlarged edition allows a lengthier articulation of themes and reader-friendly textual elaboration.

The six chapters, at first sight, form an assemblage of diverse essays. Of course, each may be read as offering an independent contribution to our understanding of diverse, though related, jurisprudential issues. Chapter 3 presents a provocative and timely account of the “institutionalised racism” of the latter day habitus of the not-so “common law.” Chapter 4 speaks to us of a similar occurrence of racism that constitutes the “discovery” of a “New Europe” via its agonized, but as yet not fully reflexive, narratives of immigration, refugee, and asylum law, policy, and administration. Substantial parts of Chapters 5 and 6 offer a range of interesting problems in the traditions of law and literature studies. And historians of ideas may find the exploration of “Fanon and Causation” in Chapter 2 of compelling interest. However, what holds the book together is its unity–in-diversity, a form that also at the same moment fully confronts the now pervasive globalizing influences that challenge some logic, paralogic, and languages of unity-in-perversity. All this occurs in a series of sustained meditations concerning the “violence of law” and the “law of violence” (my terms for grasping Guha’s (1983) insightful analysis. In this context, Tuitt’s omission of Guha’s pioneering historiography is puzzling.

No writing concerning the law’s violence should ignore the master frames of discourse provided by Walter Benjamin, Jacques Derrida, and Michel [*1045] Foucault. Tuitt renders the due postmodern obedience to them, even when focused mainly on Fanon. She could also have considered the work of Giorgio Agamben. However, Tuitt invites us to go beyond the new markers of “progressive Eurocentrism,” as Zizek (1999, at 215-216), with some irony, terms it; however, this presents rather formidable conceptual and historical challenges. Tuitt certainly aspires to redress all these multiple deficiencies in the literature, and in this, she contributes to the process of reversing the vestiges of epistemic racism (My recourse to this phrase is more in sorrow than anger).

Tuitt is not the first voice articulating this concern. A number of distinguished forerunners and contemporaries in the critical legal studies, feminist, and race theory genre have already variously addressed violence of colonial regimes. Even so, her re-consideration of the life and legacy of Frantz Fanon is extraordinarily thorough (also see Macey 2000). This gesture, in comparison to other work of this genre, speaks to us differently concerning the violent roots of modern law originating from colonization – the Siamese twin of the European Enlightenment.

Despite the fact that Tuitt refers to the dichotomies and contradictions within Benjamin-Derrida notions of foundational (law creating) and recurrent (law preserving) violence, she observes that this does not quite attend to the “racial” undertones of colonization. What is needed is a more full-fledged “theory” of the colonial state, and which Tuitt proceeds to construct by recourse to Fanon”s crucial lived insights.

Tuitt offers a typology of state formations in terms of “casual” and “(a)causal.” The latter is inherently racist in the sense that it displaces “the most fundamental of securities, the persistent recognition of human state to all, irrespective of race” (p.32.) This state form signifies sustained systemic violence by the dominant, going beyond the immediate realities of the racially dominated (p.33). It persists as well as a diffuse contemporary form in which “the project of the history of racial harm, domination, and violence” stands subjected to other histories of past wrongs, in all their unending, even infinite, assertions of “innocent causes” and to “the unreliability of memory and testimony” (p.33).

The space of this brief review allows only four dense observations. First, Tuitt seems reluctant to bear the burden of developing a new theory of state formation, because she frequently refers to the “state” or the “situation.” The reference to “situation” allows Tuitt to address the diffuse sites of racism in late modern or the postmodern law. But there is no way, as I read Fanon, independently and in conjunction with Tuitt, that authorizes this conflation. Second, despite her dexterity, the passage between modern and postmodern racism (to evoke Zizek again) is left rather under-determined. Third, if the latter so perniciously persists, and so it does, much further rigorous work is needed than simple recourse to Derrida’s dense evocation of “justice” that “many not wait” (p.101, fn.44). Indeed, others, such as Janna Thompson (2004) in her work concerning righting ancient wrongs have noted the serious perplexities of global reparative justice. Fourth, although the [*1046] contrast between the two forms of state remains promising, it is often understood as a problematic distinction between the “normal” and the “pathological.” Put another way, perhaps this is where all the violence/terror of the “modern” law dwells; even so the markers of the distance between the “causal” and the “(a)causal” state, invite further consideration.

Tuitt’s central theme invites our re-engagement with the notion of “the conscious human agent in conflict, in extremis” as one which is produced by the voracious cannibalistic appetites of the modern/colonial law, a notion that “the law produces that upon which it feeds” (p.11). Unfortunately, I do not recall any existing work that deals with cannibalism of the common law. Even so, this untheorized experience lives rather infinitely in the “postcolonial” lives, memory, and history, accentuated by Tuitt’s rich and enriching narrative frame. Regardless, Tuitt finds that the lines of distinction are blurring between such concepts as “sanctioned” and “unsanctioned violence” within the reality and images of modern law. In her account of the distinctively colonial, the “unsanctioned” represent the bleeding heart of “sanctioned” forms of violence of the modern law. The rather fecund “sanctioned/unsanctioned” distinction is perhaps best revisited in CAPITAL (Vol.1), where Marx speaks of some co-existing forms of the rule of law and the reign of terror (e.g., Baxi 1993, at 85-94).

The book ends with a promise of “the law’s pause, and . . . hesitation” as marking some redemptive space “for justice” precisely where “the law sees the terror of its own force” (p.114, emphasis added). The jury, as it were, is still out on such hermeneutic estates. On the registers of the many global post-colonial systems, the mirrors of law stand already shattered by the agents and managers of the war on, and of, terror. This observation requires some heavy labours of explanation, a treasure forbidden by space constraints. However, at least this much needs to be foregrounded: surely, the estates of the détentes at Guantanamo Bay, and other equally hideous North and global south outsourced incarcerating spaces “reveal” the agonizing truth concerning postmodern “law”—it has yet to attain even the most sparsely guarded engagement with “the terror of its own force.”

To say this is by no means to contest the observations that Tuitt offers concerning the eventual demise of classical forms of decolonization. Indeed, she presents a series of interesting explanations for the “compossiblity” (to evoke both the Arab Aristotelians, as well as Liebniz) of both the “law of violence” and the “violence of the law.” For Tuitt, the “counter-violence” (a most puzzling, even wounding expression) of colonial subjects remains open to a “full gaze of history” (p.96). Whose gaze is this? This is exemplified by the political problems associated with understanding résistance and insurgency. How may reading divergent stories found in postcolonial law and literature enable us to resituate the law of violence and violence of law discourse? Space forbids further discussion of Tuitt’s ways of understanding contrasts between the postcolonial production of valiant affirmation in MABO with either the WIDE SARGASSO SEA (Chapter 5) or NATIVE SON (Chapter 6.) [*1047]

Tuitt offers a number of interesting insights on counter-violence and the shedding of Empire (pp.95-97). However, her understanding of résistance as counter-violence necessarily invites a response from the cognoscenti. I have in view here especially the rather complex contribution somewhat modestly titled POSTCOLONIALISM: AN INTRODUCTION (Young 2001).

How may we read this work? Does it speak to us in postcolonial languages that summon future “resistance” against the forms of “potential suffusing violence” of the modern law? I write these heavy phrases in a rather poignant moment of mourning in remembrance of the 21st anniversary of the Bhopal catastrophe (the ‘largest peace time industrial disaster’ in recent history as Judge Keenan named this, even as he denied standing to the victims.) Indeed, prescriptive languages, even in a semi-Kantian cosmopolitan justice vein (if such things may ever be!) sound cruelly hollow.

At any rate, Patricia Tuitt attempts to offer some consolation in philosophy. Within the “law” we find possibilities to help erase the bright lines between its violence and terror—i.e., inherent negotiability, infinite openness to future that may allow the law somehow to recover “its natural poise as ‘violent but more than violent’” (p.101).

How may we recover some of the non-violent constitutive moments from the modern law’s otherwise violent origins? Should the critique of the modern, postcolonial lawlessness exhaust our ability to re-imagine law? How may we “get there” and even beyond?

My suggestion is that we may find it useful to reengage with Gramsci’s rather unfathomed and unfashionable remark concerning Gandhi’s imaginations of an ultimately non-violent “passive revolution.” If Fanon furnishes the groundwork for “terminal legality” (to evoke the phrase-regime of Peter Fitzpatrick), Gandhi also vitally prefigures that “terminal.” In future research of these questions, Tuitt might consider Gandhi in addition to Fanon.

In conclusion, Tuitt has much of interest to say about colonial and post-colonial law, and colleagues interested in legal development, law and society, and the philosophy of law will find this book thought-provoking.

REFERENCES:
Baxi, Upendra. 2005. ““The War on Terror” and the “War of Terror”: Nomadic Multitudes, Aggressive Incumbents, and the New International Law.”” 43 OSGOODE HALL LAW JOURNAL 7-42.

Baxi, Upendra. 1993. MARX, LAW, AND JUSTICE. Bombay: N.M. Tripathi & Co.

Guha, Ranajit. 1983. THE ELEMENTARY ASPECTS OF PESANT INSUGENCY. New Delhi: Oxford University Press.

Macey, David. 2000. FRANTZ FANON: A LIFE. London: Granta.

Thomson, Janna. 2004. TAKING RESPOSIBILTY FOR THE PAST: REPARATION AND HISTORIC JUSTICE. Cambridge: Polity. [*1048]

Young, Robert J.C. 2001. POSTCOLONIALISM: AN INTRODUCTION. Oxford: Blackwell.

Zizek, Slavoj. 1999. THE TICKLISH SUBJECT: THE ABSENT CENTRE OF POLITICAL ONTOLOGY. London, Verso.

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© Copyright 2005 by the author, Upendra Baxi.

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THE UNITED STATES SUPREME COURT: THE PURSUIT OF JUSTICE

by Christopher Tomlins (ed). Boston, MA: Houghton Mifflin Co. 2005. 560pp. Cloth $40.00. ISBN: 0-618-32969-2.

Reviewed by Nancy Maveety, Department of Political Science, Tulane University.

pp.1041-1043

The book jacket of this massive collaborative project identifies it as “the authoritative reference,” and it surely does provide a comprehensive and very readable treatment of the historical eras and decision-making developments of the U.S. Supreme Court. Because the multi-author volume represents a cooperative effort between the publisher and the American Bar Foundation, it emphasizes the “life of the law” aspect of the Supreme Court and focuses on its changes as an institution since its beginnings in 1790 under the new Constitution. But political scientists will find that politics is not neglected, and the political regime in which the court is situated is the realm in which the chapters set their individual studies.

The book is divided into four substantive sections, plus one set of appendixes. The first three sections subdivide the history of the Supreme Court into three seventy-year segments; each chapter, by and large, focuses on a single chief justiceship. There are exceptions: Wythe Holt’s opening chapter and very useful review of the establishment of the federal court system, Maeva Marcus’ foundational chapter on the institution’s early years, and William Wiecek’s quite fine analysis of the Stone and Vinson Courts as a single period of transition and transformation.

The individual, chief justice-era chapters generally follow the same content guidelines: key personnel are identified (sometimes praised, sometimes skewered), the partisan political setting is mapped, salient institutional developments relevant to the judiciary are discussed, and important rulings in constitutional law are summarized. Coherence among the chapters is provided by their historical sequencing, and chapters written by different authors nevertheless lead into one another very smoothly, creating the sensation of a unitary narrative. William Forbath’s chapter on the White Court is particularly successful in providing a transition from the preceding chapter, and also does a good job of establishing the political movement and policy issue parameters that would guide the White Court as well as its successors in the first half of the twentieth century.

The fourth section offers several refreshing twists on examining the Supreme Court across two centuries, including Norman Rosenberg’s analysis of the Court’s image and projection in popular culture and David Frederick’s history of Supreme Court advocacy. The appendixes are useful references in their own right, consisting of tables of Supreme Court personnel, broken out according to the tenure of the chief justice, a biographical listing of each justice to serve on the Court, and real dollar figures on the Court’s budget, from salaries to building costs, from 1789 to the present. (I might have opted [*1042] for a table on case loads over time, tracking the rise (and fall) in appeals, petitions and docketed cases, instead of the budgetary table, particularly as the former issue is a topic discussed by many of the chapters.) The only real drawback of the otherwise fine supplementary material is that the reader must cross-reference between the tables of Supreme Court personnel and the biographical entries to identify a justice’s appointing president.

There is a wealth of information here, and the total number of chapters (18) make a detailed review of each impossible in the venue of a short review. Dangerous though this might be, let me offer a highly selective rendering of which chapters might be most interesting to certain readers with certain purposes.

First, although the book is not likely to be utilized as a standard course text, because of its length, there are certain chapters that would be valuable as supplementary readings for students enrolled in constitutional law and Supreme Court judicial process courses. Lucas (Scot) Powe’s closing chapter “The Supreme Court and the Election Returns,” presents a very accessible overview of the political science debate about the degree to which the Court is counter-majoritarian. Mark Tushnet’s chapter on the Warren Court, which reprises much of his well-known scholarship on that court era, provides a pithy and helpful summary of that famous court period for the uninitiated. Good also on the historical background and jurisprudential legacy of a court era is Keith Whittington’s chapter on the Burger Court. Whittington manages to be fairly comprehensive in his coverage of important rulings while also mentioning the Burger Court’s importance in terms of behavioral, decision-making trends and its continuity with the role orientation of its predecessor.

Some chapters will appeal to court specialists because they bring neglected eras to life, encapsulating those periods through convincing and thoughtful categorizations. One example is Howard Gillman’s treatment of the Waite Court—possibly not a court era on most top-ten lists for memorability. But Gillman’s sympathetic construction of Waite as a person and a judge, and his useful encapsulation of the Waite Court’s decisions as “transitional yet trend-setting,” animate a court period that, for many instructors of constitutional law, is the black hole of the Civil Rights Cases and little more. As will be familiar to court scholars, Gillman’s chapter, like Tushnet’s, draws on his more extensive scholarship of the Gilded Age. Other chapters which highlight important institutional developments occurring during less-than-frequently-celebrated eras are Melvin Urofsky’s chapter on the Taft Court, which stresses Chief Justice Taft’s institution-altering administrative reforms, and Michael Vorenberg’s chapter on the Chase Court, which emphasizes Chief Justice Chase’s success (despite the distraction of presidential ambitions) in restoring respectability to the Court lost under Taney and DRED SCOTT.

Finally, certain chapters are just fun, because they engage the reader with an interest in the Supreme Court in the institution’s cultural impact and meaning as a cultural entity. Katherine Fischer [*1043] Taylor’s chapter on the material setting and appearances of the early court is a fascinating tour through what she calls the “topography of power” that describes and situates courts. Whether comparing the role of layout between American courts and legislatures (the orientation of the usually rectangular room), or discussing the operational impact of the first Supreme Courts’ sharing quarters with lower and trial courts, Taylor’s discussion asks important questions about the relationship between power and place.

Suffice it to say, while most specialist readers will find much that is familiar and even pedestrian in Tomlins’ volume, they will also find that it is generally presented in dynamic ways. Narratives of court periods are enlivened with gossipy tidbits and tales of personal peccadilloes (Justice Frankfurter alone counting for many of them.) Courts and their decisions are transplanted back into the context of their time, in terms of electoral politics, rhetorical conventions, and socio-cultural norms, allowing generalist and student readers of the book to understand famous Supreme Court rulings in the historical moment and political situation in which they occurred, yet most chapters also engage in the kind of comparative assessment of court periods and decision making that court scholars value. A substantial and well-chosen selection of illustrations adds a visual dimension to many chapters and topics. Still, none of these gestures toward making THE UNITED STATES SUPREME COURT appealing to a popular, but historically literate, audience diminish the volume’s value as a resource for scholars of American politics and law and students of the Supreme Court. Though few readers will likely read the book cover to cover, as did this reviewer, it is worth the commitment, because one will enjoy immersing oneself in the many and storied dimensions of an endlessly fascinating subject.

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© Copyright 2005 by the author, Nancy Maveety.

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NEWS PIRACY AND THE HOT NEWS DOCTRINE: ORIGINS IN LAW AND IMPLICATIONS FOR THE DIGITAL AGE

by Victoria Smith Ekstrand. New York: LFB Scholarly Publishing, 2005. 214pp. Cloth. $62.00. ISBN: 1593320752.

Reviewed by Thomas Shevory, Department of Politics, Ithaca College. Email: shevory [at] ithaca.edu.

pp.1037-1040

Victoria Smith Ekstrand’s recently published book is a very nice primer on what has been a relatively unexplored, but interesting and important, corner of the law: the so-called “hot news” doctrine. While questions regarding what legal protections “hot news” deserves may seem, on the surface, to be somewhat arcane, they are important historically; and they have contemporary significance for the wider field of intellectual property. Analysis of the “hot news doctrine” raises questions not only about the meaning of property rights, but also about the interconnections of federal and state law. The legal history implicates towering historical figures, such as William Randolph Hearst, Oliver Wendell Holmes, Louis Brandeis, as well as more recent pop cultural figures, such as NBA Commissioner Larry Stern. If a reader approaches this work, like me, unfamiliar with the intricacies of “hot news” doctrines, that reader may, like me, not see the world in entirely the same way after having read it.

The “hot news” doctrine refers to a very specific aspect of copyright. Copyright, a legal doctrine with a long tradition, involves legal protections for works that have been published, for which there is clear authorship, and the economic value of which does not recede over short periods of time. “Hot news” is a relatively recent phenomenon. It refers to written material, often “facts,” that have value for a short duration, and which will soon move into the “public realm” losing their value completely. Given the short time-frames at stake, questions of how to determine value, and underlying doubts about whether it should be protected at all, analysis of hot news can quickly become an extremely complicated undertaking. And, in fact, one thing that a reader will take from this book is an appreciation for how intricate questions of determining the value of intellectual property rights can be in some circumstances.

The book focuses on two major cases involving the hot news doctrine. The first is INDEPENDENT NEWS SERVICE v. ASSOCIATED PRESS (1918), a dispute from early in the 20th century involving William Randolph Heart’s news chain and the upstart AP, which challenged Hearst’s practice of what amounts to stealing its stories. The second is the more recent case of NATIONAL BASKETBALL ASSOCIATION v. MOTOROLA (1997), which involved the NBA’s challenge of a text-message service developed by Motorola, designed to give subscribers updates of basketball scores. Detailed background material on the INS case is provided, as well as analysis of its legal impact and implications. There is also ample contextual material on the [*1038] NBA litigation. For her analysis of the latter case, Ekstrand interviewed key participants. Discussion of the factual basis and legal doctrines related to each controversy is closely reasoned, well-documented, and clearly expressed. In fact, Ekstrand, who now teaches at Bowling Green State University, was at one time the Director of Corporate Communications for the Associated Press in New York City. Thus, she has a strong academic background and orientation, in addition to practical experience in the field.

The AP had been established as a kind of pact between newspaper publishers to share sources of information that could be distributed in local papers. Over time, as communications technologies improved, the value of “hot news,” or the most recently uncovered stories, increased. AP found a niche as a business that would provide “hot news” to various sources around the country. As its reach and importance grew, so did its power, as it attempted to fend off various competitors, such as UPI, which sprang up to challenge it. AP sought legislative property rights protections for its product, but Congress did not act to favor it. International News Service, on the other hand, was part of the early twentieth century Hearst news empire. For a long time, INS had been using materials from AP in the publication of its stories. In October 1916, a disgruntled employee of INS revealed to AP that he had been receiving stories from them via a telegraph operator in Cleveland and subsequently transferring them to INS. AP, apprised of this, sued INS on the grounds of unfair competition.

International News Service was created by William Randolph Hearst as an entity designed to lease wires to connect several of his major newspapers across the U.S. At first, Hearst primarily distributed comics, but over time, INS began to move into the distribution of news. During World War I, the British refused to allow Hearst to use British cable and mail systems, unless he followed the guidelines of British censors, something that he refused to do. Soon other countries followed Britain’s lead, and INS was left without access to an infrastructure from which it could gather news. Partly as a result, Hearst began to draw upon AP materials. He also turned to news reports originating in Germany, a practice that led to claims of sedition. These economic and political conflicts provided the backdrop for INS v. AP.

During the trial, it became abundantly clear that the factual claims about INS using AP materials, in effect plagiarizing them, were valid. Trial transcripts are replete with verbatim copies of AP stories published under the aegis of INS. While INS managers claimed the contrary, it was almost impossible for them to deny the weight of the evidence. Ekstrand’s book follows the case through Judge Learned Hand’s Federal District Court, into the Second Circuit, and ultimately to the Supreme Court.

The Supreme Court’s opinion involved a complicated attempt to parse out the potential property values of news. The Court wanted to avoid the common law view of copyright which would have allowed the news to be copied by INS. To do this, it had to distinguish the “literary value” of news from the facts communicated by news stories. As [*1039] such, it determined that news had a “dual character.” There was the “news” element and the “literary element.” While the news element, as a set of facts, did not have property right protections under copyright law, news as a product with commercial value, did have such protections. The INS essentially had, the Court determined, engaged in unfair competition by taking what amounted to be a commodity with value. Since the value of the news would expire over time, this amounted to a limited or quasi property right. INS had attempted to “‘reap where it has not sown’”(p.75). News services could take “tips,” but they could not simply lift written materials whole-cloth, even if solely factual in content, from another news source. Judge Louis Brandeis dissented, contending that such complicated determinations of the meaning of copyright ought to be left to Congress. As a result of the decision, news had, for the first time, received legal status as a form of property which could not be “misappropriated.”

Given controversies in copyright in the 21st century that involve everything from downloading content to selling of pirated CDs, it would seem likely that INS v. AP would have continuing relevance, and that is the case. The book interestingly and wisely juxtaposes the INS case to a more recent dispute involving the “misappropriation” of electronic material. NBA v. MOTOROLA involved Motorola’s attempt to establish a text messaging service that would provide customers with immediate access to NBA scores on an ongoing basis. In establishing the service, Motorola neglected, deliberately it seems, to ask the NBA’s permission to use its scores. The NBA had taken the position, since 1993, that it should and could limit the frequency of updates, because its scores change so frequently, essentially making the knowledge of NBA scores more valuable than those of other sports. The NBA had even negotiated a deal with a service called SportsSticker in which these rules were carefully articulated.

Unlike the INS case, NBA did not make it to the Supreme Court, but only to the Second Circuit. As a result of changes in the federal copyright law, the court found that NBA’s property claims had been preempted by federal law. Yet some forms of intellectual property could survive “preemption” if they met certain requirements. Those requirements include that the plaintiffs (1) gather information at a cost, (2) that the information is time-sensitive, (3) that the use of the information by the defendant is “free-riding,” (4) that the defendant is offering a service in direct competition with the plaintiff’s, and (5) that the capacity to free ride threatens the existence of the plaintiff’s commodity. The court ruled that the NBA could not meet the tests as explicated in such rules, and hence Motorola was awarded a victory (although the service was unsuccessful over time). The ruling seems to have both clarified and complicated legal protections of “hot news.” On the one hand, there is now additional precedent for such protections in common law, but these are somewhat limited in scope, or at least difficult to demonstrate in court. Of particular difficulty, is determining the meaning of competitive “harm.”

I found Ekstrand’s book to be a fascinating glimpse into a legal arena not yet subject to widespread scholarly [*1040] analysis. I learned that the doctrine has potentially broad and potentially important reach, and I appreciated the historical and highly contextual account of the cases that Ekstrand presents. Although the legal doctrines are complex, the book is accessibly written. I would recommend it to students and faculty interested of the rapidly expanding and increasingly important field of intellectual property rights.

CASE REFERENCES:
INDEPENDENT NEWS SERVICE v. ASSOCIATED PRESS, 248 US 215 (1918).

NATIONAL BASKETBALL ASSOCIATION v. MOTOROLA, 105 F.3d 841 (2nd Cir. 1997).

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© Copyright 2005 by the author, Thomas Shevory.

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HAYEK AND HUMAN RIGHTS: FOUNDATIONS FOR A MINIMALIST APPROACH TO LAW

by John C.W. Touchie. Cheltenham, UK and Northampton, MA: Edward Elgar Publishing, 2005. 288pp. Hardback. $100.00/£59.95. ISBN: 1840649569.

Reviewed by Rory O’Connell, Human Rights Centre, Law School, Queen’s University of Belfast. Email: r.oconnell [at] qub.ac.uk

pp.1034-1036

The first point about this book must be that the title does not give an accurate impression of its content. Although certainly the book covers Friedrich Hayek’s thought, it devotes relatively little attention to the topic of human rights. The subtitle is a more accurate description: the book is an effort at elaborating a theory of law, based on Hayek’s writings, and to a lesser extent, insights from other disciplines such as psychology. The book covers such topics as Hayek’s notion of coercion, the rule of law, the role of justice, the difference between negative and positive duties, liberal constitutionalism and human rights.

John Touchie argues that Hayek’s writings are now increasingly relevant in the 21st Century, as there is shift in society from one based on a sense of community towards a more impersonal, complex and specialized society. This shift poses dangers for the control of state power, making Hayek’s concern for the Rule of Law ever more pertinent (p.208). These concerns are certainly plausible, although Touchie could have referred more to others who identify these changes in society and governance.

Most interesting is perhaps the author’s insistence upon a sense of justice that is somehow objective. According to Hayek, this is central to liberalism (a point sometimes disputed by liberals) (p.128). Here Touchie highlights the difference between Hayek and some legal positivists, most especially Kelsen (p.122). He elucidates that, for Hayek, justice as a concept develops over time in social contexts and is not an abstract notion, a “view from nowhere.” Further, justice develops along two tracks – an informal one and an institutionalized legalized form. Hayek and Touchie warn against the dangers of too great a divergence between these tracks; they should be reconciled (p.133). This reviewer finds the contrast with Kelsen in the chapter on “Justice” informative, but I wonder whether the author might not do better to consider Hayek’s contributions in relation to more recent political and legal writings on justice.

Hayek famously argues against both excessive distributive justice and an excessive reliance on positive duties. Distributive justice and positive duties contain certain dangers that could lead to uncontrolled state coercion and a diminution of individual autonomy. Touchie outlines the different governance properties of negative and positive duties, and this is a very useful exercise, offering more depth than is often the case on the specific problems with positive duties. He rightly points to court cases in the UK and Canada [*1035] indicating the difficulties courts have with positive duties (p.177).

Touchie might usefully have clarified whether Hayek would accept that social and economic rights can be protected by negative duties. UN human rights institutions have noted that this is often the case—e.g. prohibitions on arbitrary dismissal, prohibitions on denial of access to employment, and prohibitions on denial of access to medical care. The author is not resolutely opposed to positive duties but merely warns that they have different governance properties from negative duties (p.174). Although Touchie notes that some courts express difficulties with positive duties, there are judicial precedents the other way. He refers to the Canadian GOSSELIN decision (p.177) but could have balanced this by considering the much discussed South African decision in GROOTBOOM.

Touchie makes it clear that our developed notion of justice requires that certain minimal standards be met, including a set of social and economic rights which could be met in different ways (pp.170, 211). Citing Hayek, he warns against “full blown distributive justice” (p.210). If the prohibition on “full blown distributive justice” means that an excessively interventionist, centrally planned economy is incompatible with human autonomy, then this is not a very contentious point. If this is a warning that certain positive measures have particular drawbacks, then this is a point worth reiterating, though it is already well accepted by other writers—e.g., on the dangers of “materialized law,” see Habermas (1995, at 416).

The book contains a useful discussion of the potent but ambiguous concept of the “rule of law.” Touchie discusses Hayek’s analysis of the rule of law as emerging from power struggles between interest groups at different historical periods (p.45), and he distinguishes between those conceptualizations that view the rule of law as adding a dimension of justice into the law (p.85) and others that emphasize efficiency in the legal system (p.84). Hayek’s insistence on the rule of law is still timely, especially the requirement of the possibility of review. It is noteworthy that the current Government of Hayek’s adopted home, Britain, has consistently shown an inclination to deny judicial review in debates about emergency measures and asylum processes. In this effort, the Government has been stymied by opposition in Parliament.

This fact is both worrying (the Government’s distrust of the rule of law) and heartening (Parliament’s success in insisting on rule of law values). Hayek astutely warned that modern democracies tend to conflate the executive and the legislative power. This is no doubt a serious worry, and rule of law advocates should be pleased at these Parliamentary successes. However this also leads to a criticism of Hayek’s position. Hayek seems to have assumed that legislative action often represented no more than Will, and in particular the Will of the democratic majority (pp.181-182). This he may have contrasted with the more rational development of justice offered by judges. Yet this seems too sharp a dichotomy, and other writers have argued that legislation has its own rationality, even “dignity” (Waldron 1999). [*1036]

In the final chapter, Touchie suggests that rights must not be put into a simple cost-benefit analysis, but that they must have a particular value, while leaving open the possibility that rights may be limited in “narrowly circumscribed circumstances (p.225). This fits well with much of modern human rights law, generally permitting rights to be limited only if it can be demonstrated to be necessary in a democratic society (Canadian Charter of Rights and Freedoms, Section 1; 1996 South African Constitution, Section 36). However more detail would have been welcome. For instance, it would have been interesting to hear the author’s thoughts on so called “non-derogable” rights, to which international law permits no exceptions even in times of war. This has become a pressing issue as some commentators and policymakers have sought to argue that the non-derogable right to be free from torture should indeed be subject to a utilitarian calculus when the overwhelming needs of society intervene. I would have liked to hear the author’s views on this critical question, much discussed since September 2001.

Touchie does address, but rather too briefly, another important issue in contemporary human rights law, the influence of corporations and other powerful non-state actors. He notes that Hayek was mainly concerned with the power of the state – surely appropriate for one who lived through Hitler and Stalin – and observes that a persistent difference exists between state power and corporate power (p.216). He acknowledges the need to be concerned with the provision of basic needs (p.216) and later suggests that finding a balance between controlling state power and providing for certain material needs is necessary to move forward (234). Power should be decentralized, given the tendencies of members to accept the imperatives of bureaucratic organization even at the expense of conscience (p.215). Touchie urges attention to the different modes of governance that are possible and warns against relying exclusively on law (p.236).

This is a book that offers insights primarily to legal philosophers. Given its title, human rights experts may feel a bit misled, although Touchie’s discussion of the Rule of Law and Negativity should be of some interest.

REFERENCES:
Habermas, Jurgen. 1995. BETWEEN FACTS AND NORMS. Cambridge: MIT Press.

Waldron, Jeremy. 1999. THE DIGNITY OF LEGISLATION. Cambridge: Cambridge University Press.

CASE REFERENCES:
GOSSELIN v. ATTORNEY GENERAL OF QUEBEC, [2003] 221 D.L.R. 4th 257 [2002] 4 S.C.R. 429 (2002/12/19).

GOVERNMENT OF SOUTH AFRICA v. GROOTBOOM, (CCT11/00) [2000] 11 BCLR 1169 (CC) [2001],10 Butterworths Human Rights Cases 1 84 (2000/10/04).

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© Copyright 2005 by the author, Rory O’Connell.

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DEFENDING ANIMAL RIGHTS

by Tom Regan. Urbana and Chicago: University of Illinois Press, 2001. 224pp. Cloth. $24.95. ISBN: 0-252-02611-X.

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

pp.1030-1033

Some of the more moving images from post-Hurricane New Orleans involved animals, whether the images of dogs waiting on top of rooftops in vain for human rescuers, cats found in the tangled remains of homes, or even human animals who had risked death rather than leave behind their pets. In the wake of human tragedy, non-human animals nonetheless retained the capacity to evoke sympathy, emotion, and even action on their behalf. In spite of the centrality of animals in everyday life, as food, as companions, as clothing, as annoyances, animal rights still exists as a marginal fringe in scholarship, whether philosophy, law, or politics. Tom Regan’s DEFENDING ANIMAL RIGHTS represents the work of one of the few—and among the most prominent—moral philosophers tackling the question of animal rights from an intellectual and activist perspective. The book is a collection of Regan’s speeches and essays from the last decade ranging in topics from the philosophical foundations of animal rights to the relationship of ethical philosophy to activism. While less systematic than Regan’s previous treatments of animal rights, the book is a provocative invitation to legal scholars to explore an underdeveloped arena of study. Indeed, Regan’s opening chapters that lay out his philosophical argument are both less persuasive and less interesting than his closing chapters that are more directly political, placing animal rights in a broader legal and historical context. Though offering little new to those familiar with the animal rights debate, Regan’s text does provide a valuable introduction to the intellectual, political, and personal debate in an accessible format that would be appropriate for scholars seeking to introduce themselves to the philosophical debate or for students of moral and legal philosophy.

The first half of DEFENDING ANIMAL RIGHTS is dedicated to the formidable intellectual task of defending the idea that non-human animals ought to be included in the moral community of humans as moral equals. Regan defends this principle through a quasi-Kantian argument that, just as all humans ought to be treated as ends rather than means, so too ought animals be considered. The criteria for membership in the moral community of rights-bearing subjects includes holding a status of what Regan refers to as a “subject of a life,” or possessing inherent value by virtue of meeting minimal requirements as beings to whom we have a moral duty. Like many defenders of animal rights, Regan makes his case for animals in part from an argument from marginal cases in order to undermine the belief that human beings possess unique and special traits that make them the only candidates for moral personhood. He argues that certain humans, whether infants, children or the seriously mentally or physically disabled, lack the [*1031] characteristics we often associate with rights-bearing subjects – such as autonomy, rationality, and language. Nonetheless, we would find it reprehensible to engage in experimentation or extermination of infants or the severely physically disabled. In a similar manner, he believes our recognition that animals are living beings with minimal mental capacities qualifies them for membership in the moral community.

Regan’s argument differentiates him from other defenders of animal rights, most notably Peter Singer, in his deployment of the idea of a moral community that is similar to, though obviously much broader than Kant’s, requiring us to view members of our moral community through the lens of duty. Singer, on the other hand, as utilitarian, has argued for a more pragmatic position that would allow the sacrifice of, say, animals, infants or the severely disabled if it might serve the greater good. And, in doing so, Singer has often reaffirmed the worst fears about animal rights advocates. In spite of his often less sensationalistic conclusions, Regan’s philosophical position nonetheless draws some of the boldest lines involving animal rights. Throughout the book he most frequently refers to one of the “hard cases” for animal rights proponents, the use of animals in research that may benefit animals, human and otherwise. Although some animal rights defenders reluctantly allow such research for the long term greater good, and animal welfare advocates argue in favor of greater regulation to enable better care and conditions for the animals, Regan is absolutist. If non-human animals are part of the moral community, thus mandating a moral duty to treat them as ends rather than as means, then experimenting on animals for our own good violates our own moral community.

Regan lays out this argument in greater detail in what many consider to be an animal-rights classic, THE CASE FOR ANIMAL RIGHTS, published in 1983. In this text, he provides a useful introduction to his argument through a comparison with other animal rights arguments, including those of Singer, ecofeminists and deep ecology. He also defends his view against detractors, most notably his long-time intellectual adversary, Carl Cohen. Regan is most comfortable refuting other ethical philosophers arguing on similar philosophical terrain. He seems somewhat less at ease arguing against feminist philosophers who attack the concept of rights, rather than just the premise that animals have rights. In relying on a fairly narrow scope of literature among care feminists, Regan seems to miss the range of feminist critics of rights and to mischaracterize the literature with which he engages, reducing it to the simplistic charges that men have developed the concept of rights and, therefore, it is sexist, and that ethics should be built on care rather than reason. As a philosopher rooted to some degree in the Kantian tradition, Regan’s argument might have been better served by giving more attention to those who examine rights in historical context, such as Charles Mills (1999), concluding that the co-existence of rights with practices like slavery is a conceptual and political problem.

Of greater interest than the philosophical story, however, may be the more [*1032] political and personal essays that comprise the second half of the book. In Chapter Six, Regan links the struggle for equality on the basis of race, gender, and sexual orientation, making the suggestion that animal rights may be the next stage of rights expansion. Regan is quite adept in making the case that scientific and religious expertise was often abused to reason that non-white humans, women, and non-heterosexuals were less than fully human. He then contends that scientific and religious justifications for the subservience of animals may be similarly misguided and potentially embarrassing in the future. The chapters that follow are discussions of advocacy regarding the unjust treatment of non-human animals, including the debate over use of violence in the animal rights movement (which Regan is mostly opposed to) and the implications of animal activism to Regan’s personal and professional life.

The chapters that veer into political terrain are the least “intellectual” but may be the most engaging for legal scholars interested in questions of animal rights. The philosophical chapters, rooted deeply in Anglo-American philosophy, seem oddly disengaged from the actual subjects they address, only rarely discussing actual animals and then primarily through the lens of ethical philosopher, imagining them in the hypothetical. As with many animal rights treatises, I found myself dissatisfied by the articulation of abstract principles whereby we might transform our relationships with and use of animals. I cannot imagine they would be convincing to the scientist experimenting on animals or the unrepentant meat eater. As theorists outside of philosophy departments have waded into the thick of animal rights, many have made a similar argument that waxing philosophic about the definition of the rights-bearing subject, and wondering whether animals fit our anthropocentric definition, is merely a repetition of androcentrism and may prevent us from imagining other and better relationships with animals. Emphasizing the various ways we live with animals, Cary Wolfe (2003) and J.M. Coetzee (2001) spring to mind as alternative constructions of a more complex ethical universe with animals.

Regan’s later chapters, however, made me question why animal rights has not been of greater interest to legal scholars beyond the realm of ethical and legal theory. Regan’s characterization of animal rights as just another struggle for social justice and his comparisons amongst struggles for gender struck me as emphasizing the various differences among categories of identity and the malleability of the rights-bearing subject. Although I do not necessarily agree with Regan’s lumping together of struggles—a politically dangerous move as can be seen by the reaction to PETA’s recent traveling display comparing slavery, sexism, and child labor to our treatment of animals—the dynamics of the social movement and the shifting meaning of rights and rights-bearing subject within the law are certainly fruitful avenues of research. One of the few texts that takes animal rights seriously as a social movement is Silverstein’s excellent UNLEASHING RIGHTS: LAW, MEANING, AND THE ANIMAL RIGHTS MOVEMENT, and the area certainly warrants more attention. More recently, Sunstein’s and Nussbaum’s (2004) edited volume tackles some of the historical and [*1033] contemporary debates about the treatment of animals.

Regan’s expansion of the category of rights may also contribute to the debate about whether rights, legal change, and state-based strategies are the proper avenues for the pursuit of animal-based concerns. Examining the struggle for animal rights, where limited animal welfare reforms have been successful but broad-based social changes seem unlikely, may be a fruitful source of inquiry for those curious about the efficacy of rights-based struggles. Further, the inquiry could challenge the very meaning of the “rights-based subject” for human and non-human animals. Regan may open the door to inquiring whether animals are properly excluded from our moral community, but more work must be done in terms of determining what our duties toward our non-human others might be, especially since they are often unable to voice their own concerns and articulate their own ends (a problem not unique to non-human animals, of course).

Regan’s book reads as a reflection on a long career as one of the lone voices in academia taking the problem of animals seriously. While unlikely to convince skeptics, it nonetheless charts a course of study that considers our legal and moral relationships to animals as a philosophical, political and personal problem. I finished the book feeling that the philosophical debate has failed to settle the ethical questions raised by our lives with animals, though Regan’s long career perhaps indicates that animal rights is not destined to remain always a fringe issue. I remain unconvinced that Regan’s argument is a satisfactory treatment of the question of the moral and legal status of animals, but I am convinced by his work that animals are too important to be left only to scientists and ethical philosophers.

REFERENCES:
Coetzee, J.M. 2001. THE LIVES OF ANIMALS. Princeton: Princeton University Press.

Mills, Charles. 1999. THE RACIAL CONTRACT. Ithaca: Cornell University Press.

Regan, Tom. 1985. THE CASE FOR ANIMAL RIGHTS. Berkeley: University of California Press.

Silverstein, Helena. 1996. UNLEASHING RIGHTS: LAW, MEANING, AND THE ANIMAL RIGHTS MOVEMENT. Ann Arbor: University of Michigan Press.

Singer, Peter. 2001. ANIMAL LIBERATION. New York: Harper Perennial.

Sunstein, Cass and Martha Nussbaum. 2004. ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS. Oxford: Oxford University Press.

Wolfe, Cary. 2003. ANIMAL RITES: AMERICAN CULTURE, THE DISCOURSE OF SPECIES, AND POSTHUMANIST THEORY. Chicago: University of Chicago Press.

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© Copyright 2005 by the author, Claire Rasmussen.

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RACE, LAW, AND THE DESEGREGATION OF PUBLIC SCHOOLS

by Peter William Moran. New York: LFB Scholarly Publishing, 2004. 316pp. Hardcover. $70.00. ISBN: 1-59332-039-6.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu

pp.1025-1029

Last year the fiftieth anniversary of the landmark BROWN v. BOARD OF EDUCATION (1954) was met with both high praise for the original decision and a plethora of works on the mixed results of school desegregation in these intervening years. Charles Ogletree’s ALL DELIBERATE SPEED, Derrick Bell’s SILENT COVENANTS, and Sheryll Cashin’s THE FAILURES OF INTEGRATION, all published in time for the commemoration, immediately spring to mind. Yet, in 2005 considerably less attention was paid to the fiftieth anniversary of the no-less important follow-up decision, commonly referred to as BROWN II. The two cases are of course inextricably linked. On the other hand, they could not be more different in their tone or how they have been perceived. Chief Justice Earl Warren’s lengthy and eloquent opinion in BROWN I has forever been reduced to one crystallizing ideal. “We conclude that in the field of public education,” Justice Warren writes, “the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” By contrast, his brief decision for a unanimous court in BROWN II came to embody the fragmented and deeply ambiguous nature of integration attempts that would follow: “[T]he cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

Much has been made of the hollow phrase “with all deliberate speed” – many argue that what happened in the aftermath of BROWN II was in fact all deliberation and no speed. What seems to be clear, now a half-century after BROWN II, is that the time for the noble but deeply flawed attempt at school integration has passed us. A school system once structured on the principle of de jure segregation is now equally rife with de facto segregation. In the field of public education, we have come full circle: the “separate but equal” educational facilities Justice Warren and a unanimous court decried fifty years ago are now de facto a way of life in much of the United States.

How we arrived at this point has been addressed many times over by constitutional historians, political scientists and policy experts, legal scholars, urban sociologists and political geographers. But Peter William Moran, an Assistant Professor of Elementary Education at the University of Wyoming, provides us with something in RACE, LAW, AND THE DESEGREGATION OF PUBLIC SCHOOLS that few scholars have: a rare, incredibly in-depth longitudinal [*1026] analysis of one city’s struggles to integrate its school system in the wake of the BROWN I and BROWN II decisions and their progeny.

Some scholars approach school desegregation with a bird’s eye view, scanning the landscape of American democracy in the second half of the twentieth century and giving us the expanse of the big picture. Moran is a mole, burrowing deep into the inner workings of the central administration of the Kansas City, Missouri, Board of Education as it struggled to comply with facts on the ground and the decisions of the Court, from the 1950s until the district was released from court order in 1999. The result is simply an excellent case study of the intricate dynamics of school integration carried out in one small corner of the country over a period of nearly fifty years. It is a must read for anyone remotely interested in the subject, but especially those education policy junkies hooked on the minutia of school desegregation.

Rarely does Moran allow the reader to step out of the shadows of the Kansas City Board of Education and its dealings with local parents, activists, and grassroots organizations, all of whom were seeking their policy preferences on integration. But there is a larger context lurking in the background to his work – two in fact, both arising from the original BROWN decisions.

The first originates from BROWN II. It should be recalled that Chief Justice Warren expanded on his “with all deliberate speed” formula when he wrote the following:

While giving weight to . . . public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.

Warren’s mandate is the jumping-off point for Moran’s work. As he explains in his introduction, “I focus on the manner in which [the Kansas City Board of Education and the district’s central administration] fashioned and re-fashioned integration policy in light of multiple and continuing evolving social, political, financial, demographic and legal considerations”(pp.3-4). BROWN II and its progeny were legal decisions, but, as Moran shows, legal considerations are never divorced from political, social and economic reality. Thus, the tragic story of desegregation in Kansas City cannot be told without understanding 1) the changing legal landscape, 2) the changing demographic landscape of the larger metropolitan area, 3) the changing socioeconomic and ethnic makeup of the students themselves, and 4) the concomitant [*1027] fiscal fortunes and misfortunes the district endured.

Moran weaves all of these strands together with mastery. While the text is thick and rich with day-to-day accounts of the major and minor players in this 50-year tale, the narrative is nonetheless straightforward, focused and easy to follow. He proceeds chronologically in nine succinct chapters, beginning with the first attempts to dismantle the dual system in Kansas City immediately in the wake of the BROWN decisions, and ending with the dismissal of the case by District Judge Dean Whipple in November 1999 – after forty years of attempts at integration, twenty years of legal oversight by the courts, and $2 billion spent on ensuring the vestiges of racial discrimination were eradicated.

Between 1954 and 1999, the Board of Education of Kansas City – like most urban areas – attempted every remedy at its disposal to ensure equal educational opportunity. Moran takes the reader through the ins and outs of each: neighborhood schools, transfer policies, rezoning of school district lines, busing, mandated taxes by the courts to provide equal facilities, and litigation to incorporate surrounding suburbs to achieve racial balance in the wake of increasing white flight. All of these attempts ultimately failed as the school board faced changing legal, political, financial, and socioeconomic terrain. At the end of the century the Kansas City school system barely resembled that of five decades before. Moran explains:

In 1954, Kansas City’s segregated schools were more than 80% white, enrolled about 60,000 students, and offered arguably the finest public education available in the metropolitan area. . . . Moreover, Kansas City students attended classes in some of the finest facilities in the area . . . By 1999, the Kansas City public schools enrolled 31,200 students, approximately 80% of whom were minorities, and the general perception of the Kansas City schools was much less favorable. Whereas fifty years earlier, the school system was an institution in which most Kansas City residents took pride, in 1999, Kansas City was the only unaccredited school district in the state of Missouri (pp.277-278).

The turnaround Moran describes in the Kansas City school system is striking but far from surprising. Such trends are reflected across the country. By the year 2000, for example, nearly one-third of all black students attended schools in which 90% of the student population was nonwhite. Classically, sociologists have been able to measure segregation by looking at the probability that a black student will have white classmates. In the 1990s, every region of the country became more segregated than in the past. In the northeast, the problem was most egregious: the probability that a black student would have a white classmate was 25%. Nationally the probability stood at 32% – down from 35% in 1990 (Rosen 2000).

Moran points to many mistakes on the part of the Board which all derive from the realities of the situation. Yet, not surprisingly he identifies the one issue which lay at the core of the problem. “Indeed, it can be argued,” he states, “that the great failure of the Kansas City public schools in the last half of the twentieth century was the inability of the school officials and the public school system to deal effectively with racial concerns”(p.279). That “racial concerns” should be the overarching dilemma in [*1028] effectively dismantling school segregation is somewhat tautological. But to his credit, Moran describes meticulously in the concluding chapter how race played out in the district. Yet, this brings us to the second context that forms the backdrop to RACE, LAW AND PUBLIC SCHOOL DESEGREGATION that Moran does not address but which also lurks in the background to what happened in Kansas City and indeed, the rest of the country, in the latter half of the twentieth century.

Let us return for a moment to the BROWN I decision. Quoting from a witness in the lower court, Justice Warren gets to the heart of the matter when he writes that “segregation of white and colored children in public schools has a detrimental effect upon colored children. The impact is greater when it has the sanction of law” (emphasis added). There is something conspicuous about this assumption which guided desegregation policy for the next fifty years – both in Kansas City and the rest of the country. The assumption is this: segregation had a detrimental effect only on colored children; hence, the way to rectify the problem was to ensure that colored children would go to school with whites. Otherwise, feelings of inferiority would persist.

It is rather odd that Warren, or anyone else for that matter, would not consider the detrimental effects of segregation on white children and make note of it in one of the most important Supreme Court decisions in history. But perhaps that is beside the point here. What is important is that the policy of integration flows from this fundamental belief that educational equality for blacks could only come when schools were sufficiently integrated with white students – even if whites were unwilling to integrate at any cost.

The lengths to which whites would go in order to ensure that schools would not be fully integrated underwrites just about everything in Moran’s account of the case of Kansas City. Such is the detrimental effects of segregation on white children in 1950s America, and everything from housing policy to the creation of the suburbs, to the development of the interstate highway, is essentially a product of that one fact. It should be added that not everyone – certainly not every black leader – agrees that in order to elevate the educational opportunity of black children one needs to send them to school with whites. Separate schools for black children was advocated by Prince Hall in Boston in the 1790s, by W.E.B. Dubois at the dawn of the twentieth century, even to an extent by Martin Luther King in 1959 when he questioned how black children could be placed in the hands of white educators who may ultimately view blacks as inherently inferior. One even sees vestiges of this separatist argument in some of Justice Clarence Thomas’ opinions.

Certainly these are larger philosophical questions which go beyond the scope of Moran’s wonderful account of what takes place in Kansas City from 1954-1999. But they nonetheless get to the heart of the dilemma of school integration and the problems associated with it. We are left in the lurch: between a failed integration policy and the reality that some type of segregation will persist. And one is left wondering, after reading [*1029] Moran’s work, if “separate but [truly] equal” is not a bad thing after all.

REFERENCES:
Bell, Derrick. 2004. SILENT COVENANTS: BROWN v. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM. New York: Oxford University Press.

Cashin, Sheryll. 2004. THE FAILURES OF INTEGRATION: HOW RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM. New York: Public Affairs.

Ogletree, Charles. 2004. ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRST HALF-CENTURY OF BROWN V. BOARD OF EDUCATION. New York: Norton.

Rosen, Jeffrey. 2000. “The Lost Promise of School Integration.” THE NEW YORK TIMES, April 2, 2000, A1.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1955).

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© Copyright 2005 by the author, Christopher Malone.

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EU ENLARGEMENT AND THE CONSTITUTIONS OF CENTRAL AND EASTERN EUROPE

by Anneli Albi. New York: Cambridge University Press, 2005. 290pp. Cloth £48.00/$85.00. ISBN: 0521845416. Paper. £21.99/$37.99. ISBN: 0521607361.

Reviewed by Stephen McDougal, Department of Political Science/Public Administration. University of Wisconsin-La Crosse. Email: mcdougal.step [at] uwlax.edu

pp.1022-1024

When the editor asked me to review this book, I had many reservations. First among them was the fact that I do not even follow European politics, much less the legal politics in Eastern and Central Europe. All I could offer, I said, was a generalist’s reading: what can U.S. legal academics learn? The editor agreed, and with that caveat, I proceed.

Anneli Albi did not write this book for a general U.S. academic audience. It is a book well worth studying for those already interested in the subject and thus for those with more existing knowledge of European Union history than gathered by, say, daily pursuing the New York Times. Nonetheless, a close reading teaches – some might say reiterates – important lessons in the scholarly struggle to grasp the efficacy of law in a post-whatever world.

However, this is not the author’s task. Albi’s question is clearly descriptive: how have the bedrock legal and political principles of popular sovereignty, rooted in each national constitution, been adapted to the formal legal consequences of EU membership? What she describes are the struggles up to around 2004 to extend an emerging European legal order to the countries of Central and Eastern Europe (CEE) as those nations join the EU. Is there an emerging European constitutional order? If Albi’s book has one flaw, it is in dwelling so much in legalities with only passing references to the associated politics.

The “Older Members” had to cope with such legal and/or constitutional adaptation when the EU formed. Albi argues that even in its formative stages, the national legal and constitutional changes brought about to accommodate the existence of EU entities were various, diverse and without legal uniformity. Now, with EU enlargement, two basic constitutional problems exist: how CEE countries adapt to an existing EU legal status quo; and how some unique characteristics of CEE constitutions pose a greater challenge to integration than the constitutions of older members.

Albi describes how the CCE constitutions reflect each nation’s legal reaction to the end of Soviet domination. Here, the commonalities may exist only in the mind of the analyst. Each nation made its own choices about structuring its post-Soviet law and government. Yet, each constitution placed greater emphasis on “sovereignty” and “independence” – even as those terms are given diverse constitutional definitions – establishing “with detail and precision the mechanisms and procedures for exercising power” (p.115). The separate constitutional [*1023] provisions are listed, described and compared with remarkable detail. Several CEE constitutions contain non-amendable sovereignty provisions. Most require national referenda with minimum turn-out requirements for constitutional amendments to be ratified. EU membership thus raises more difficult constitutional issues in CEE countries, and as a consequence, more difficult political issues.

This approach makes the entire book more descriptive than analytical, and intentionally so. Albi is not out to de-construct or re-construct any paradigm, although the paradigms are well known. Albi does use and create academic categories and typologies to illuminate the common problems, politics and constitutional solutions (many still in process), but she uses them with great sensitivity. She is careful to explain each CEE nation’s constitutional actions in terms of its own unique history and politics. On the other hand, the descriptive narrative and exquisite attention to detail often makes the book seem overtly formalist, which in total it is not. Description, as such, can reveal much when an underlying factor can be plausibly posited. Here, there is no conceptual problem: the rule of law is assumed to be working throughout the current and prospective EU membership. Thus, in Albi’s approach, some national legal and constitutional adaptation to the realities of EU law is a given. Law will follow politics as the benefits of EU membership come to the fore. Even if there is no over-reaching plan, no formula or template, something has emerged and continues to emerge.

On the other hand, it is clear that what Albi describes so well does not fit easily into existing scholarly theoretical categories, arising as they do from an earlier European political reality. Thus, description is a strength. Even as she relies in passing on much of the academic literature on post-nationalism, Albi’s task is not to engage in those debates all that much. She has her preferences, of course, and lays out a five-point minimal model of how to move toward a European constitutional order. But, one gets no feeling that Albi believes law or legal scholarship will – or even can – lead the way. Nonetheless, she predicts “a favorable interplay between national and European legal orders, due to their imprint on national legal education” (pp.120-21). In any event, she sees a major paradigm shift in the offing: “the concept of ‘constitution’ appears to be ‘in transition’” (p.121).

Running through the book are two “paradigms.” First, the traditional approach to national sovereignty, based largely on an ethno-centric notion of nationhood, wherein a national constitution forms the basis for the legitimacy of national government; in this view, the EU is a union of nation-states and not a federal government: “In general, federal visions of Europe caused uneasiness in the region where sovereignty had been newly established” (p.180).

The other is an emerging “post-national concept,” in which the EU is viewed as something more than the product of a treaty among otherwise sovereign governments. In this view, the EU is something more. Is there enough “content to a European demos to justify stronger democratic representation through the European Parliament” (pp.130-1, where Albi makes passing [*1024] reference to Habermas’ idea of constitutional patriotism)? “The sovereign state is no longer the only source of [legal] authority: within the scope of EU law, the authority derives from the Treaties, adjudicated by the [European Court of Justice] or, in borderline cases, by the Member States through the Intergovernmental Conference” (p.177). In the only real blind spot in the book, however, Albi does little to say what the content of “a European demos” is or might come to be. The ethnocentric paradigm has great cultural and, thus, political legitimacy. Hence, while acknowledging that existent CCE governments rest on some national socio-cultural foundation, Albi offers readers little as to what European socio-cultural foundation exists, or is likely to come into existence, upon which Europe-wide democratic government might rest.

What is emerging, Albi characterizes as a truly dualist system of law – sovereignty both hierarchical and vertical. For this a new concept has emerged: “competence.” Competence is distinguished from “sovereignty,” thus allowing national governments to delegate (or, as Albi prefers “transfer”) certain specified powers to EU institutions without engaging in a delegation (or transfer) of sovereignty itself. There is much scholarly argument from this perspective, as well as several national constitutional court decisions. The decision of the German Constitutional Court in The Maastricht Case is offered as illustrative. The Maastricht Treaty was found to not violate German national sovereignty because of the specificity of these delegated “competences.” Ultimate authority, including authority to judge the actions of EU institutions, lies with national governments and national courts operating under national constitutions. In the final chapter, Albi spells out how much of this would have changed under the rejected (since publication) European Constitution.

If these trends continue – and the political failure of the proposed constitution raises many questions about that – then a new “paradigm” of governance under the rule of law may indeed be developed, one that does not follow any historical model, such as U.S. federalism. Rather (like U.S. federalism read as law and politics), something is emerging which reflects unique European experience and needs. Grand theorists need not apply!

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© Copyright 2005 by the author, Stephen McDougal.

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