INDIGENOUS PEOPLES IN INTERNATIONAL LAW and INDIGENOUS SOVEREIGNTY AND THE DEMOCRATIC PROJECT

INDIGENOUS PEOPLES by S. James Anaya. New York: Oxford University Press, 2004. 408pp. Hardcover. $74.00 / £35.99. ISBN 0-19-517349-X. Paper. $24.95 / £15.50. ISBN 0-19-517350-3.

INDIGENOUS SOVEREIGNTY by Steven Curry. Burlington, VT: Ashgate Publishing Company, 2004. 192pp. Hardcover. $99.95 / £55.00. ISBN: 0-75-462340-8.

pp.269-273

Reviewed by Renee Ann Cramer, Department of Political Science, California State University, Long Beach. E-mail: rcramer@csulb.edu .

The second edition of S. James Anaya’s INDIGENOUS PEOPLES IN INTERNATIONAL LAW, published in 2004 by Oxford University Press, is nothing short of brilliant. According to the book’s dust jacket, an earlier review in the American Political Science Review notes its “scope, detail, and … rigor” as a reference volume, and a review for the American Society of International Law calls it a “well-documented survey.” Certainly, the Appendix to the book, which contains several primary texts, makes this a valuable reference book. So does Anaya’s exhaustive review of international case law on the topic of indigenous rights. Those two reasons alone are sufficient to recommend that the book be read and assigned; however, INDIGENOUS PEOPLES IN INTERNATIONAL LAW goes far beyond being a reference volume or survey of the field – rather, it contains a complex and compelling argument that indigenous activists need to move beyond contemporary sovereignty claims, and to ground their claims instead within a relatively new framework of international human rights.

The book is divided into three parts and an appendix. Much of the theoretical work of the book is shouldered by the early chapters and the Introduction. Part I explores “Developments Over Time,” and details the shift from a discourse about “sovereignty” to the modern era’s focus on “human rights.” This section traces the development of international law, and important concepts within international law, from what Anaya terms the “early naturalist frame” of Bartolome de las Casas and Francisco de Vitoria, to the modern era’s “human rights” framework. This section is a masterpiece of critical synthesis, and a must-read for anyone engaging in scholarship on indigenous persons, international law, or the concepts of the state, trusteeship, sovereignty, self-determination, and human rights.

Part II defines self-determination, elaborates on the elements constituting it, and upholds self-determination as the “foundational principle” of international human rights law as it applies to indigenous peoples. Anaya writes:


self-determination is identified as a universe of human rights precepts concerned broadly with peoples, including indigenous peoples, and grounded in the idea that all are equally [*270] entitled to control their own destinies. Self-determination gives rise to remedies that tear at the legacies of empire, discrimination, oppression of democratic participation, and cultural suffocation (Anaya, 98).

Chapter 4 elaborates on what Anaya calls the content of self-determination: policies fostering nondiscrimination, cultural integrity (including preservation and development of language, religion, and art), access to lands and natural resources, social welfare and development, and self-government through both autonomy and participation. The subsequent chapter examines the obligations placed on nation-states – through moral obligation, shame, treaties, and international agreements – to respect the principle of self-determination and make strides in achieving it with indigenous peoples.

Part III offers detailed analyses of various international monitoring and complaint procedures, and policing compliance with these norms. This section is especially interesting for those scholars unfamiliar with the significant international legal apparatus meant to ensure compliance. It includes an extensive discussion of various international bodies the U.N. Working Group on Indigenous Populations, the International Labor Organization, and the Inter-American Commission on Human Rights, for example), as well as detailed reference to secondary literature examining their effects.

It is his definition of self-determination, in the Introduction and Chapters 4 and 5, however, and his decoupling of it from the requirement of nation-states, which constitute some of Anaya’s most important contributions in this book. Most conventional understandings of self-determination conflate it with sovereignty, and assume that claims to self-determination are claims to territorial control. Anaya argues, however, that recent international understandings of self-determination, based on human rights discourse, engender an alternative to “state-centered, historical sovereignty” discourses (Anaya, 7).

As well, he claims that


international law – the body of principles, norms, and procedures that today function across national boundaries – remains state-centered, but it is now pulled at by a discourse directly concerned with individuals and even groups. . . . The expanding opening in international law for concern with nonstate entities on humanistic grounds . . . is an opening increasingly free of the bounds of Eurocentric perspectives

which tend to focus on the nation-state as the paramount of political life (Anaya, 53). In this new conception of international law, nation-states and claims to territorial control are only instrumental to self-determination, they do not in themselves constitute self-determination, nor are they essential to it. Anaya writes, “for most peoples . . . full self-determination, in a real sense, does not require or justify a separate state” (Anaya, 7; emphasis in text). And, his elaboration, in Parts II and III, of international norms and mechanisms for non-statist self-determination, is quite convincing.

To be sure, there are limits to Anaya’s analysis. Two points in particular are worth mentioning. First, though he does a nice job of showing that international mechanisms pull nation-states towards [*271] compliance with customary law and norms regarding human rights, it is not always clear that material benefits are gained by indigenous peoples as a result of their interaction with international organizations. Second, I would like to read a discussion about the indigenous movements and activists that petition, lobby, inform, and direct international debate. This, however, is outside of the scope of the book, and perhaps not a fair criticism.

Ultimately, “the central contention of this book is that international law, although once an instrument of colonialism, has developed and continues to develop, however grudgingly or imperfectly, to support indigenous peoples’ demands” (Anaya, 4). Anaya does a tremendously nice job of showing that to be the case, and of proving the larger (and more interesting) claim that state-oriented sovereignty claims are no longer useful or relevant for indigenous actors on the international scene.

It is perhaps unfortunate that, in my reading for this review essay, I turned next to an examination of indigenous sovereignty written by Steven Curry, and published by Ashgate Press for its Applied Legal Philosophy list. Curry desires to rehabilitate the concept of sovereignty from what he terms an overly Classical View ,and to make it compatible with the post-colonial, post-modernist, and multicultural liberal states in which indigenous peoples live. He also desires to make sovereignty a palatable concept to nonindgenous people, and to show how liberal democracy requires that “we” allow indigenous sovereignty.

Curry’s opening pages are astoundingly good. Beginning with a quote from Marx (when was the last time we saw that in the social science literature?), his first paragraph concludes:


we must continue to fear that any injustice we do will serve to undermine, even destroy, our capacity to do justice. We might even discover that we have distorted our conception of justice to fit around the manifest wrongs we ignore, so that we no longer recognize injustice for what it is (Curry, 1).

As the Introduction continues, it becomes clear that Curry’s vision of justice is inseparable from his vision of democracy, and that the injustice indigenous people face is a political injustice of undemocratic governance by colonial states. The political injustices done to indigenous peoples serve, Curry argues, to undermine “the ideals of human rights and popular sovereignty upon which democratic societies are supposed to be built” (Curry, 1).

Curry next explains that his book is meant to be a contribution to an on-going dialogue about democracy and sovereignty. He undertakes a “situationist analysis,” by which I understand him to mean a dialectical, hermeneutic approach, and launches a very nice defense of such an approach against charges of paralytic relativism. His voice is fresh, scholarly, and clear-spoken. By the close of the first nine pages, nearly any reader would be excited to read more.

Fortunately, most readers will not be disappointed by the remainder of the book; Curry convincingly lays out what he calls the problems of instability and “playing with the umpire” (Chapter 2) [*272] brought about by indigenous claims to sovereign powers. And, he does an excellent job of tracing three historical meanings of the term “sovereignty” (from Jean Bodin to Will Kymlicka – or, from Classical views requiring kingly sovereignty to modern and post-modern views of popular sovereignty).

Though he covers little new ground, this genealogy is framed in a new and interesting way – the philosophical discussion is book-ended by examples from indigenous political activism such as the armed stand-off at Wounded Knee in 1973 and the creation of Nunavut (an Inuit Territory in Canada) in 1999. His examples show that at least much indigenous activism has been framed around the call for sovereignty in the form of treaty negotiations and territorial independence. His examples also show the difficulty attendant such demands.

Curry argues that he has rehabilitated sovereignty from its kingly origins, and rescued it from inconsistencies found in some of the models offered by the popular sovereignty theorists. By showing that Western democracy as it is currently imagined and practiced is inconsistent with political injustice of the sort met by indigenous people seeking sovereignty, Curry hopes to establish a foothold for sovereignty movements within nation-states. He writes, “indigenous sovereignty can be revived” (Curry, 170), and that such sovereignty need not undermine nation-state stability. And he concludes: “And so I have come to the view that indigenous sovereignty is a real phenomenon, capable of springing back into a vigorous existence even where colonialism would seem to have destroyed it, just so long as the resistance of indigenous peoples goes on.”

Speaking not to indigenous persons, but to those “non-indigenous citizens of settler states,” he writes:


We face a simple choice. . . [We] must either accept the fact of indigenous sovereignty, and work to achieve rapprochement with it, or we must abandon everything of real value we claim for ourselves. This means in practice taking the institutions of the settler state apart. . . . We should look forward to a post-colonial future. This future is one in which tolerance has been replaced with respect, and in which we have committed ourselves to a society based on justice in which the stability criterion treasured by Classical theorists has given way to the principle of commitment. In this society everyone’s good would matter, and we would find a way to respect both material and social priorities. It may be possible to preserve a good deal of what we have, but perhaps not. In any case we will be able to thank indigenous peoples for forcing us to choose (Curry, 171).

This leaves me wondering, though—is the rehabilitation of the notion of sovereignty necessary for us to enter this respectful, vibrant world?

Both Anaya and Curry engage in explicitly normative pursuits, with the goal of increasing the power of justice claims made by indigenous peoples. Both engage, as well, in constitutive legal theory and philosophy, and in hermeneutic genealogy of key concepts (sovereignty and self-determination). Both have similar goals. Ultimately however, though Curry’s exposition is interesting, I kept wishing he would read and reference Anaya’s volume, and join [*273] the argument that sovereignty – as a relic of colonialism and Eurocentric statism – is no longer the most useful concept for advancing indigenous claims to justice.



© Copyright 2005 by the author, Renee Ann Cramer.

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RACIAL ISSUES IN CRIMINAL JUSTICE: THE CASE OF AFRICAN AMERICANS

By Marvin D. Free, Jr. (ed.). Monsey, New York: Criminal Justice Press, 2004. 283pp. Paper. $36.50. ISBN: 1-881798-55-0.

Reviewed by Debra S. Emmelman, Department of Sociology, Southern Connecticut State University. Email: emmelmand1@southernct.edu.

pp.264-268

This relatively short book manages to cover a very broad yet comprehensive range of topics regarding African Americans and the criminal justice system. Three distinct areas of concern are covered, opening with the significance of race and criminal justice in the larger context of American society, then proceeding to specific criminal justice responses to crime and African Americans, and concluding with a discussion of solutions to the problem of racial inequities in the criminal justice system.

The editor, Marvin D. Free, Jr., begins the book by reviewing crime statistics that reveal the overrepresentation of African Americans in arrest rates, juvenile institutions, adult incarceration rates and rates of receiving harsh penalties. He then counters assertions that these rates may not actually reflect racial discrimination by taking a close look at two types of offenses for which African Americans are disproportionately arrested: drug abuse violations and violent Index crimes. Regarding the first, Free demonstrates that African Americans’ higher drug abuse arrest rates are due to selective drug legislation aimed primarily at the poor and people of color and selective enforcement of such laws—specifically, legislation and enforcement aimed at controlling crack cocaine. Regarding the second, he persuasively argues through unofficial sources of data, as well as comparisons between the ten most and least common offenses for which blacks and whites are arrested that African Americans’ higher arrests rates appear to have a great deal more to do with police discretion than with actual commission of crime.

This introductory chapter provides a good framework for the remainder of the anthology, as well as a good starting point for critical thinking and discussion regarding the relationships between African Americans and the criminal justice system. The intellectual stimulation does not stop here. Every essay in this edited volume has something unique and thought provoking to contribute.

Part I of the book begins with Robert Engvall’s interesting and insightful explanation of the relationship between the disproportionately high arrest rates of African Americans, the underrepresentation of African American scholars in the area of criminal justice, and the marginalization of criminal justice studies in the academy. He argues that these three trends reflect not merely the oppression of African Americans by the white majority but more explicitly the secondary status that American universities and colleges relegate to the scholarly investigation of and dialogue [*265] about such a vital issue. In a similar capacity, Michael A. Hallet very credibly contends in the next chapter that the unduly high imprisonment rate of African Americans in private, for-profit prisons are the equivalent of yesteryear’s slavery system.

In a perhaps less controversial yet no less stimulating fashion, Sarah Eschholz refutes the common belief that the media create and perpetuate the stereotype of criminals as minorities (and vice versa) by disproportionately portraying offenders as minorities. She also finds that this image is not created through the media’s underrepresentation of minorities as crime victims. Instead, in this last chapter of Part I, Escholz presents evidence that the image of minorities as criminals may be propagated through the media’s portrayal of an unrealistic offender-to-victim ratio. In other words, minorities are a great deal more likely to be portrayed as offenders rather than as victims. Thus, they are more likely to be perceived as predators. Certainly, this chapter encourages one to contemplate both the method described by the author and other ways people in the U.S. appear to have acquired the image of criminals as minorities, as well as minorities as criminals.

Part I allows the reader to explore the many ways in which the larger social order plays an important role in propagating racial inequity in the criminal justice system. Part II examines how the criminal justice system itself, ranging from legislation to procedures of arrest, court processing and punishment, reinforces racial inequities.

Michael J. Lynch and Amie M. Schuck begin the essays in Part II by observing the statistical inaccuracies and assumptions behind racial profiling. They assert that if such profiling reflected actual offense patterns, the racial profile of the offender would be white. Following this critique, Katheryn K. Russell shows the reader how the “Driving While Black” phenomenon actually extends far beyond traffic stops and even the criminal justice system. She further posits that such profiling results in a vicious cycle of black marginalization and disrespect for the system.

Somewhat reminiscent of the second chapter, the essays in Chapters 7 and 8 suggest that scholarly work should be read critically. Byers, Becker and Opiola show us that although African Americans comprise the majority of hate crime victims, they are vastly underrepresented in hate crime research. Taking the position that the problem and seriousness of hate crime are socially constructed, the authors argue that these patterns reflect the influence of special interest groups and the popular press. Nevertheless, they concede that a more precise explanation is currently unavailable and that more research is needed. In Chapter 8, Marvin Free reviews research on race and presentencing decisions and finds that, on balance, studies indicate racial disparities in decision-making. Perhaps more remarkable in this essay, however, is Free’s critique of research designs that may obscure the various effects of racial discrimination. Both explicitly and implicitly, these two chapters also suggest alternatives for further research. [*266]

In Chapter 9, Becky Tatum provides fodder for dialogue regarding the juvenile justice system in general and the transfer of juveniles to adult courts in particular. Tatum first provides an overview of the methods for transferring juveniles to adult courts. She then presents evidence that the primary purpose of the juvenile court, as well as the transfer of juveniles to adult court, is to control and punish minority youth rather than youth in general. She argues that politicians typically support such policies because of public pressure, which stems from perceptions and fear of crime shaped in large part by the media. Racial discrimination in decision-making then occurs for various reasons (including conscious and unconscious biases as well as differences in backgrounds) throughout the processing of youths by juvenile justice officials and ultimately culminates in racially disparate rates of transfers to adult court. Compounding this injustice, current research suggests that treating juveniles as adults has no deterrent effect on serious juvenile crime, and in fact, is more likely to make things worse for the youths as well as minority communities.

David V. Baker discusses the racist application of the death penalty in Chapter 10. By reviewing research on capital punishment in the context of three landmark decisions of the U.S. Supreme Court (FURMAN v. GEORGIA, GREGG v. GEORGIA, and MCCLESKEY v. KEMP), he argues that the death penalty is capriciously imposed on black defendants and serves the extra-legal function of preserving majority group interests. Moreover, he maintains that the discrimination that occurs in capital sentencing is deliberate. He finds that the primary reasons black defendants with white victims are denied fairness in capital sentencing are prosecutorial discretion in the selective prosecution of capital cases, prosecutorial misuse of peremptory challenges to systematically exclude blacks from juries, judicial overrides by trial judges, prosecutorial misconduct, and the ineffective assistance by defense counsel. Overall, I found the greater part of Baker’s arguments persuasive. However, he did not entirely convince me that racial discrimination in capital sentencing is necessarily intentional. Other than some rather vaguely described episodes, the closest he comes to supporting this last allegation is his reference to Sorensen’s and Wallace’s study on prosecutorial discretion, whereby the authors conclude that such discretion amounts to intentional discrimination (p.189). Nevertheless, I find Baker’s allegation to be intellectually challenging and certainly worth debating in the context of a classroom or a court of law, as well as exploring through additional research.

While some of the earlier chapters state or imply various solutions to the problem of racial inequity in the criminal justice system, those in Part III address this matter more directly, considering whether certain alternatives actually work and offering some other worthwhile prospects.

In Chapter 11, Helen Taylor Greene discusses whether African American police make a difference. She employs the colonial model as a theoretical framework for understanding both the effectiveness of and limitations placed upon these police both historically and in present times. Early versions of the [*267] colonial model asserted that police, regardless of color, are an oppressive occupying force in many communities. More recently, it is seen that although there is still political subordination, black political empowerment and ascendancy in many law enforcement departments mitigate police colonialism. After tracing the history of black policing in the U.S., she argues that, despite the lack of research on the issue, it is self-evident that black police chiefs especially impact policing because they have the power to establish priorities within their agencies and affect law enforcement policy on a national level. Anecdotally, it also appears that black officers through community policing efforts have had some positive effects. Like most of the other contributors to this volume, Greene concludes the chapter with some suggestions for research.

In the next chapter, Elissa Krauss and Martha Schulman take issue with the allegation of black juror nullification. Juror nullification refers to the jury’s right to determine both the law and the facts of a case and to act contrary to the law. Some have recently argued that African American jurors are likely to judge cases on preconceived race-based notions about justice rather than on the evidence. Krauss and Schulman demonstrate that, contrary to such claims, black jurors follow the law; i.e., they hold the prosecutor to the burden of proof and demand that the defendant be proven guilty beyond a reasonable doubt. In contrast, white reproach of black juror behavior assumes that the juror’s role is to convict the defendant and fails to realize that so-called “color-blind” justice presupposes the logic and experiences of whites—not blacks. Thus while black juror nullification has been proposed by some as a solution to racial inequity in the courts, the authors maintain that it has not been, and apparently need not necessarily be, practiced.

In an effort to remedy inequity in the courtroom, Hiroshi Fukurai, in the next chapter, proposes using one of four alternative methods for selecting jurors. Called models of affirmative jury selection, like Affirmative Action programs, they hold the promise of rectifying the problem of inadequate representation of minorities on juries, or, the failure of minority defendants to be judged by a jury of their peers. These models are the split jury (or the jury de medietate linguae), in which half of the jurors come from the majority and the other half from minority groups, the proportional jury, in which the extent of juries’ racial representativeness reflects the respective proportion of both majority and minority groups in the general population, the quarter jury, in which the twelve-member jury must have at least three minorities to resist group pressure from the white majority in decision-making process, and the author’s personal favorite, peremptory inclusion, in which the final jury is chosen by affirmatively selecting from the eligible pool those jurors who share racial, sociocultural, and other cognizable background characteristics as those of the defendants. To me, all of the alternatives appear as viable options for establishing greater fairness in jury trials and certainly warrant serious consideration.

In the final chapter of the anthology, Robert Conners considers whether the practice of “restorative justice” is [*268] actually restorative. He employs a perspective that he calls oppression theory, or, a “framework of minority discourse that addresses issues of context and societal inequality” (p.256). Unlike retributive justice, that holds offenders accountable to the state, restorative justice is said to hold the offender accountable to the victim, the victim’s primary social circle, and to the community. Praised by many as a more humane and evenhanded practice, Connors considers the extent to which such methods can actually establish justice in light of social, economic and political inequality. He finds that although some restorative justice commentators have acknowledged the importance of inequality, there has been no attempt to rectify the problems related to a system of oppression. Thus, restorative justice as currently formulated is misdirected and serves to reaffirm the status quo. In conclusion, Conners proposes some very pragmatic and valuable diagnostic questions that practitioners might use to reformulate measures of restorative justice.

Overall, I truly enjoyed reading this book. Not only did it cover a wide range of topics and issues, but every chapter in the anthology provided me with something important to think about and discuss with others. It promises to stimulate a great deal of critical analysis and debate in the classroom, and I would highly recommend it as either a primary text in the area of criminal justice and minorities or a supplementary text used to enhance discussions of inequality in other types of criminal justice courses. Because the text might be approached at various levels of critical thinking and analysis, I also believe it could be used in both undergraduate and graduate courses. The only shortcoming I can find in this book (assuming I can actually call it a “shortcoming”) is that I wish it were longer and contained more such readings!

CASE REFERENCES:

FURMAN v. GEORGIA, 408 US 238 (1972).

GREGG v. GEORGIA, 428 US 153 (1976).

MCCLESKEY v. KEMP, 481 US 279 (1987).



© Copyright 2005 by the author, Debra S. Emmelman.

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THE CHASE COURT: JUSTICES, RULINGS, AND LEGACY

by Jonathan Lurie. ABC-CLIO, 2004. 247pp. Hardcover. $65.00. ISBN: 1-57607-821-3.

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

pp.260-263.

Editor Peter Renstrom explains in his forward to THE CHASE COURT: JUSTICES, RULINGS, AND LEGACY that the ABC-CLIO Supreme Court Series is designed to reach not only the academic and legal community, but also a more general audience interested in Supreme Court history. When completed, the Series will encompass the tenure of each of the fourteen Chief Justices in the Court’s history, beginning with the first Chief Justice John Jay and ending with current Chief Justice William Rehnquist. To date, the ABC-CLIO Series has covered eleven of the fourteen. THE CHASE COURT, written by Jonathan Lurie, professor of legal history at Rutgers University, is the latest handbook to appear in the series.

Lurie’s volume follows a very similar format laid out in the previous handbooks. Part I begins with a brief overview of the Court and the historical period, moves on to provide biographical background on each justice to sit on Chase’s Court, discusses the major cases decided during Chase’s tenure, and concludes with an analysis of the legacy and impact of the Chase Court. Part II contains approximately 100 pages of supporting reference materials – key people, laws, events, documents, and a table of cases during his tenure. It is a slim and concise volume, totaling about 230 pages not including the index. Series Editor Renstrom is correct in that THE CHASE COURT is a perfect primer for anyone who wishes to get his/her feet wet with the Supreme Court under Chief Justice Salmon P. Chase.

Chase was appointed Chief Justice on December 6th, 1864 – exactly one month after Lincoln’s reelection and about four months before his assassination – and he held his seat for eight years. Given the circumstances of his service (an appointment while the Civil War waned and the relative brevity of his tenure), one could argue that Chief Justice Chase stood just as much in the shadow of giants as he did on their shoulders. As Lurie points out in the introduction, Chase was in the unenviable position of following two of those giants whose combined service spanned nearly sixty years: John Marshall (1810-1835), and Roger Taney, who replaced Marshall in 1836 and whom Chase replaced when Taney died in 1864.

Yet, while the impact of Marshall and Taney on the history and direction of the Supreme Court is unmistakable, it would be inaccurate to say that Chase was not as significant. He served from late 1864 to early 1873 – eight short years that witnessed a social upheaval unlike any other in American history. Chase interpreted, for the first time, the Reconstruction Amendments, presided over the impeachment of a U.S. president (also for the first time in history), and witnessed the rise and demise of the Reconstruction effort in [*261] the post-war South. During the Marshall and Taney eras, the American political economy evolved slowly and steadily. During Chase’s term, development exploded, and his court was charged with interpreting the Constitution amid the maelstrom.

In Chapter 3, Lurie provides a lucid and succinct explanation of fourteen of the Chase Court’s major decisions. Several are worth mentioning here in brief.

In EX PARTE MILLIGAN (1866), the Court held that military tribunals could not try an American citizen who was not in the military if in fact the civil courts were open and operating during a time of war. In 1864 Lambdin Milligan, a lawyer and antiwar activist living in Indiana (which had not seceded from the Union), was arrested and charged with conspiracy against the U.S. government by a military commission. A bare majority also held that under no circumstances could Congress establish military tribunals as long as both state and federal courts were open and operating throughout the conflict. In Chapter 4, Lurie explains that EX PARTE MILLIGAN was a landmark case in the field of civil liberties, even if it was unpopular with Radical Republicans when the decision was announced. Yet, “in the wake of both World War II as well as the more recent tragedies of 9/11 and their aftermath, its lasting significance may be uncertain” (p.95).

The most famous decision of the Chase era was rendered in THE SLAUGHTERHOUSE CASES (1873) in which the Court was asked to interpret the Thirteenth and Fourteenth Amendments for the first time. The case involved the creation of a “grand slaughterhouse” in New Orleans in 1869, which sought to reform sanitary conditions in the city, but which also served to put many butchers out of business. In a 5-4 majority opinion, Justice Miller rejected outright the argument that restricting the livelihood of New Orleans butchers was a violation of their Thirteenth Amendment rights. Miller then turned to an analysis of the Fourteenth Amendment. Lurie explains:

Applying a narrow meaning to the Fourteenth Amendment, all the more perhaps because in the case before him the plaintiffs were white butchers bickering over where they could slaughter beef in a crowded municipality- Miller emphasized that newly liberated blacks might indeed look to the federal government for protection from inappropriate conduct. But privileges and immunities for the rest of the citizenry remained where they had always been, within the hands of the states . . . [The] butchers might indeed have a legitimate beef, but they were in the wrong judicial forum. Finally, Miller pointed to the lack of clear intent from Congress that the new amendments were to introduce fundamental changes in the federal system. In short, with the possible exception of the ex-slave, the Union is as the Union was. (p.83)

THE SLAUGHTERHOUSE CASES introduced the concept of dual citizenship into constitutional jurisprudence. In addition, the shift in the balance of power from the states to the federal government that the Fourteenth Amendment promised was quickly spurned by the Court and would have a significant impact on the direction of federalism until the New Deal. Lurie concludes that with the [*262] SLAUGHTERHOUSE CASES the “traditional balance between federal and state remain unchanged” (p.83).

Just one day later the Court handed down another decision centered on the Fourteenth Amendment. In BRADWELL v. ILLINOIS (1873) the Court held that the Fourteenth Amendment did not provide for equal protection on the basis of gender for Myra Bradwell, who had sought a license to practice law in the state of Illinois. Again writing for the majority, Justice Miller found that the right to practice law did not depend on federal citizenship, but only state citizenship. And if a state decided to bar women from legal practice, the federal courts were powerless to intervene. In his concurring opinion, Justice Bradley patronized Bradwell by further arguing that the female sex is “unfit . . . for many of the occupations of civil life.” The Court reaffirmed the concept of dual citizenship under the Fourteenth Amendment as it also sought to leave unscathed a state-centered approach to constitutional interpretation.

These three cases are roundly cited as the most important of Chase’s tenure. Yet they share something else in common—Salmon Chase dissented from the majority opinion in all three. In EX PARTE MILLIGAN, Chase argued that Congress did in fact have constitutional power to set up military tribunals in the future if it saw fit. In other words, he and his fellow dissenters did not want to “cripple the constitutional powers of the government” (p.58). In SLAUGHTERHOUSE, Chase offered a silent concurrence to Justice Field’s vigorous dissent over the proper meaning of the Fourteenth Amendment. And in BRADWELL, an ailing Chase could only muster a terse one sentence, stating that he dissented “from the judgment of the Court, and from all opinions” (p.85). Chase was too weak to explain why he disagreed with the majority positions of his own Court. Three weeks later on May 7, 1873, he passed away.

Given that Chase presided over the Court during a period in American history that could only be classified as complete disruption, what is in fact his legacy? The word Lurie uses to describe the Chase Court is “ambiguous.” In Chapter 4, Lurie analyzes two areas in which the landmark cases fall, state authority and due process during wartime. The chapter is a solid assessment of the legacy of the Chase Court as successor courts interpreted law based on its rulings. It also ends Part I on the book, which is by and large the substantive section of THE CHASE COURT.

As mentioned at the outset, the text is a basic primer on the legacy and rulings of Salmon Chase and his Court. In this sense, the text succeeds in its objectives – it is accessible to a wide audience, from scholars to those with a lay interest in the history of the Supreme Court. While it is perhaps too basic to use as a primary text in a college class on constitutional law, it nonetheless may serve as an adequate supplement. One can even see high school teachers using the text in their pre-law courses that focus on the history of constitutional law.

Given all of the positive qualities of the text, I would, however, have liked for Lurie to consider the legacy of Salmon [*263] Chase a bit more thoroughly in an historical context. The background and biographical information Lurie provides on Chase and his abrasive relationship with the man who nominated him – Abraham Lincoln – is nothing short of fascinating. My point is a different one. Here we have the first Republican in the history of the country appointed to be Chief Justice of the U.S. Supreme Court. Lurie writes eloquently about how Chase shared with Lincoln a vision of a strong central government in the wake of Southern secession. In TEXAS v. WHITE (1869), Chase put the matter bluntly when he stated, “The Constitution, in all of its provisions, looks to an indestructible Union, composed of indestructible States.” Yet, given Chase’s opinions, particularly in those decisions mentioned above, we are met with a fascinating comparison of where the Republican Party started its ideological journey in the 1850s and 1860s, and where it finds itself today.

What emerges from the record is that Salmon Chase was no states’ rights advocate. He argued that the Congress has certain powers during wartime that states could not usurp and which citizens had to abide; he further argued that the federal government had the authority under the Fourteenth Amendment to provide equal protection of the laws when states violated them – be it African Americans across the South, white butchers in Louisiana, or a female applying to the Illinois bar for a license to practice law. More than 120 years after Chase was appointed to be chief justice by the first Republican president, William Rehnquist was appointed by another Republican president in a period when once again the Republican Party was emerging as the dominant party. And yet, the contrasts between these two periods, and these two Chief Justices are striking, to say the least.

Though it perhaps is not the aim of THE CHASE COURT to address these issues, at the very least such ideas and issues arise when reading the text. In the end this may be the greatest success of THE CHASE COURT: the fact that it sparks interest for further discussion.

CASE REFERENCES:

BRADWELL v. ILLINOIS 83 U.S. 578 (1873).

EX PARTE MILLIGAN, 71 U.S. 1 (1866).

THE SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).

TEXAS v. WHITE, 74 U.S. 700 (1869).



© Copyright 2005 by the author, Christopher Malone.

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INTERNATIONAL ENVIRONMENTAL LAW AND ASIAN VALUES: LEGAL NORMS AND CULTURAL INFLUENCES

by Roda Mushkat. Vancouver, BC: University of British Columbia Press, 2004. 241pp. Hardcover. CDN$ 103.93 / US$ 85.00. ISBN: 0774810564.

Reviewed by Geoffrey Wandesforde-Smith, Emeritus Professor of Political Science, University of California, Davis. Email: gawsmith@ucdavis.edu

pp.255-259

At the core of this book by Roda Mushkat – or at the core, at least, of the idea of writing a book such as this – is an important and intriguing question. Is there something about the values held by people who live in Asia, and by their governments, that prevents them from taking commitments to environmental law and policy as seriously as many people who do not live in Asia think they should?

Among other things, if there is some substance to this allegation, we should have no great expectation that there will be clear and steady progress in Asia toward meeting the goals and targets of the international environmental treaties Asian nations have signed with some considerable frequency and apparent enthusiasm since the early 1970s. In two appendices Mushkat catalogs the memberships held by some twenty-seven Asian countries in major international conventions and regional multi-lateral agreements. Do these signify real commitments, however, or are they just window dressing? In the final analysis, Mushkat wants her book to be reassuring on this score. But her attachment to ponderous and even convoluted legal language tends to obscure rather than clarify the way she poses and deals with a set of issues that are really better understood, I think, than she leads us to believe. Let us first think about the subject in terms closer to home.

We know from our own immediate experience in the United States, as well as from a long and complex history of environmental policy law in this country, that values seem to make a difference at several levels. At the moment, for example, President George W. Bush clearly has a set of values, both personal and political, that do not lead him to attach as high a priority to environmental policy as some of his predecessors. And, to the extent that he does want to pursue solutions to environmental and resource management problems, whether at home or abroad, the President seems to favor environmental policy instruments that have not, up to this point in time, been central to national efforts to deal effectively with environmental challenges. In the international arena the result, according to DeSombre (2005), is an understandable but not altogether attractive policy of unilateralism, which contrasts markedly with the leadership role the United States played for the previous thirty years.

History also teaches important lessons about values and their relationship to environmental policy law choices. In the Asian context, for example, one readily imagines that religious values [*256] might have an important role in the way people and their governments define and pursue their responsibilities for nature (Passmore 1980). In Asia, certainly, but also in Africa, Australasia, and the Americas, the values people attach to nature and the ways they understand themselves in terms of their relationships to nature have been profoundly influenced since the eighteenth century by science, as well as by the willingness of policy makers to value science as a positive basis for their decision making (Dunlap 1999; Dauvergne 2001; Mulligan and Hill 2001; Beinart 2003).

The evidence is equally clear that over many decades economic values and public opinion on resource and environmental questions shape laws and policies and influence their effects. One thinks, for example, of the resource disposition policy that shaped American public land laws and grew out of an earlier willingness to value natural resources chiefly for the contributions they could make to internal improvement and national economic development (Andrews 1999). And, one recalls that American environmental law and policy would not be what they are today without the widespread transformation of material values and environmental public attitudes that took shape in a context of rising affluence after the end of World War II, and which was a dominant force in domestic politics in the late 1960s and early 1970s (Lacey 1991).

Many scholars, then, are used to the idea that environmental laws and policies, whether international or domestic, have been shaped by values. This has been true over long periods of time and across most regions of the world. But the story is a complex and changing one, not least because the values involved are diverse – personal, political, religious, scientific, economic, and material, for example – but also because they are conflicting. Indeed, the idea that diverse and conflicting values create cross-cutting pressures in society is one of the oldest and firmest in political science. Certainly, for most historians and social scientists the general expectation is that the influence of particular values on law and policy waxes and wanes. And this is an important reason why the language of law and policy also changes, adapting, as the saying goes, to the felt necessities of the times (Holmes 1881).

Against this background Mushkat seems oddly fixated, first, on the language of current legal agreements and, second, on specifying a priori the technical terms and conditions under which current legal agreements and commitments can be implemented. The oddly inflexible, and I would even say contrived, tone pervading the book is set in the Foreword by Ved Nanda, a distinguished professor of international law at the University of Denver and, by Mushkat’s acknowledgment, a prime mover in bringing this book to press. “[C]ommon sense dictates,” Nanda admonishes, “that geopolitical or cultural considerations should not determine either the content of international environmental law norms or their domestic implementation” (p.ix). This is a tough row to hoe, it seems to me. As any legal scholar worth his or her salt ought to know, circumstances, including circumstances that attach to and stem from values, alter cases.

Mushkat, nevertheless, gamely proceeds to set up her problem with Nanda’s [*257] stricture in mind. She argues that in a region like Asia, where the general impression is that people and governments are “deeply wedded to the concept of economic growth at all costs” and are “unwilling to seriously contemplate [sic] trade-offs involving other strategic goals,” there is not likely to be much interest in compromising national policy objectives for the sake of “constraints emanating from the global arena” (p.127). Mushkat’s problem, thus, resolves itself into asking whether people and governments in Asia have any reasonable excuses for not promptly and fully achieving the environmental policy goals to which they have committed themselves by signing treaties. Stated in these bald terms, the answer has to be that of course they do. And one wonders why it takes Mushkat two hundred and forty pages, ninety of which are solidly packed footnotes at the end of the book, to be comfortable with this conclusion.

The central problem with the book is that we do not learn nearly as much about Asian values as we should, if, in fact, there are such things as Asian values and if, in fact and in important respects, those particular Asian values that relate to the environment are at odds with those held in the rest of the world. An important part of the difficulty Mushkat has in being convincing is her treatment of the word “Asian.” She resolves the term into Asia Pacific, defining this operationally as that collection of twenty-seven Asian countries mentioned earlier. But the rationale and methodology by which she does this is far from clear, and so her definition of what is Asian (and, therefore, what is not) is at best convenient and may at worst be random. In another part of her book, Mushkat hints very briefly, and in passing, that there may be, for example, religious values that shape the way Asians and their governments make environmental policy choices. But there is very little substance to her discussion of these values in Chapters 3 and 4 of the book, which is where we would expect to find it. Her treatment reiterates some general points made by Judge Weeramantry in the Gabcikovo-Nagymaros dam case before the International Court of Justice (1997), but it could not be called a probing or critical examination of exactly how a specific set or variety of Asian cultural or religious values cuts against the grain of international legal norms.

At the end of the book we are told that this study “provides sufficient evidence to argue that globally shaped norms that are seemingly at variance with culturally entrenched short-term economic imperatives are generally accepted by the politico-bureaucratic establishment in the Asia Pacific region” (p.127). The problem the establishment has with international environmental law, then, is less a problem of values than one of resources for implementation. Within countries, at what Mushkat calls the micro-level, where the implementation rubber hits the road, cultural variables manifest themselves in a variety of constraining factors. The inadequacy of domestic laws is cited as one of these, as are understaffed and under-funded institutions, lack of judicial enforcement, weak application of good government principles, and a varying degree of receptiveness to rights-based arguments. “These factors,” writes Mushkat, “reflect institutional structures (which may range from simple to complex), institutional [*258] capabilities (which may range from modest to substantial), and nature (sic) of political culture (which may range from rigid to flexible)” (p.128).

It is one thing, however, to identify variables such as these and to assert their probable relevance to implementation shortfalls. It is another thing to make a convincing demonstration of that relevance. And I would argue that in this book Mushkat has accomplished the first but not the second of these tasks. The key to understanding the real contribution and significance of this book lies in its serious internal imbalance. The discussion of Asian values and environmental protection occupies sixteen pages (Ch.3). The discussion of whether there is anything distinctive about the Asian approach to environmental norms occupies just seven pages (Ch.4). But the discussion of factors affecting the domestic implementation of international legal norms is forty-six pages long (Ch. 5), supplemented by three appendices and a legion of footnotes. This is by far the longest chapter in the book, and it makes what can only be called a dismal catalog of serious discrepancies between what environmental law in Asia requires on its face and what actually gets done. It is the compilation of this catalog that constitutes the heart of Mushkat’s book. It does, indeed, add up to an interesting empirical story, and it is a story which Mushkat to her great credit presents as one that cries out for explanation. Unfortunately, INTERNATIONAL ENVIRONMENTAL LAW AND ASIAN VALUES is not that explanation. It is not even the beginning of that explanation. Nonetheless, it is, perhaps, the end of an interesting and provocative preface to such an explanation.

REFERENCES:

Andrews, Richard N.L. 1999. MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY. New Haven, CT: Yale University Press. Chs. 2-5.

Beinart, William. 2003. THE RISE OF CONSERVATION IN SOUTH AFRICA: SETTLERS, LIVESTOCK, AND THE ENVIRONMENT 1770-1950. New York: Oxford University Press.

Dauvergne, Peter. 2001. LOGGERS AND DEGRADATION IN THE ASIA-PACIFIC: CORPORATIONS AND ENVIRONMENTAL MANAGEMENT. New York: Cambridge University Press.

DeSombre, Elizabeth R. 2005. “Understanding United States Unilateralism.” In THE GLOBAL ENVIRONMENT: INSTITUTIONS, LAW, AND POLICY, Regina S. Axelrod, David Leonard Downie, and Norman J. Vig (eds). Washington DC: CQ Press. Pp. 181-199.

Dunlap, Thomas R. 1999. NATURE AND THE ENGLISH DIASPORA: ENVIRONMENT AND HISTORY IN THE UNITED STATES, CANADA, AUSTRALIA, AND NEW ZEALAND. New York: Cambridge University Press. [*259]

Holmes, Oliver Wendell. 1881. THE COMMON LAW. Boston: Little, Brown.

Lacey, Michael J. (ed). 1991. GOVERNMENT AND ENVIRONMENTAL POLITICS: ESSAYS ON HISTORICAL DEVELOPMENTS SINCE WORLD WAR II. Baltimore, MD: Johns Hopkins University Press.

Mulligan, Martin, and Stuart Hill. 2001. ECOLOGICAL PIONEERS: A SOCIAL HISTORY OF AUSTRALIAN ECOLOGICAL THOUGHT AND ACTION. New York: Cambridge University Press.

Passmore, John A. 1980. MAN’S RESPONSIBILITY FOR NATURE: ECOLOGICAL PROBLEMS AND WESTERN TRADITIONS (2d. rev’d. ed.). London: Duckworth.

CASE REFERENCE:

Case Concerning the Gabcikovo-Nagymaros Project (HUNGARY v. SLOVAKIA). 1997. (25 Sept. 1997) ICJ Reports 7.



© Copyright 2005 by the author, Geoffrey Wandesforde-Smith.

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RISKS, REPUTATIONS, AND REWARDS: CONTINGENCY FEE LEGAL PRACTICE IN THE UNITED STATES

by Herbert M. Kritzer. Stanford, CA: Stanford Law and Politics, 2004. 352pp. Cloth $45.00. ISBN: 0-8047-4967-1.

Reviewed by Stephen Daniels, American Bar Foundation, Chicago, IL. Email: s-daniels@law.northwestern.edu .

pp.250-254

Except for a handful of scholars, political science has largely ignored the civil justice system. This is despite the fact that civil justice reform has been a major political issue for over 20 years and despite the fact that the civil justice system is where most legal activity takes place and where who gets what, when, and how is regularly determined. Civil justice reform is animated by dissatisfaction on the part of some interests over that determination. Among the handful of scholars who have devoted their energies to studying this area is Bert Kritzer, who through a long series of articles and books has done path-breaking work on the civil justice system. With RISKS, REPUTATIONS, AND REWARDS: CONTINGENCY FEE LEGAL PRACTICE IN THE UNITED STATES, Kritzer provides another important work.

RISKS reports on Krtizer’s extensive research on the use of the contingency fee by lawyers in Wisconsin. The contingency fee – a practice with a long history in American legal practice (MacKinnon, 1964; Karsten, 1998) – is itself one of the reformers’ major targets. The reason is simple. As Kritzer reminds us in his Conclusion, the contingency fee is about access to the system for those without the means to pay a lawyer to represent them. As he says, “from the perspective of the average citizen, contingency fees are about ‘access to justice’ through the mechanism of civil litigation, or the threat of civil litigation” [emphasis in original] (p.254). For those dissatisfied with the civil justice system’s determination of who gets what, when, and how, one avenue for change is to make it harder for people to use the system in the first place. Eliminating, limiting, or directly regulating the contingency fee all represent routes to that destination.

The debate over reforming the contingency fee is driven largely by anecdotes, horror stories, heated political rhetoric about crisis, and position papers by the interested parties rather than by sound empirical research. Motivating Kritzer’s investigation is the lack of sound empirical research and the idea “that considerations of change must start from a good understanding of the status quo” (p.267). RISKS provides crucial empirical background for the political debate over the contingency fee, and earlier versions of the research reported in the book have entered that debate – as has Kritzer himself. [1]

The most controversial aspect of Kritzer’s work is his analysis of the “effective hourly rate,” a concept that has appeared in a number of his earlier pieces (Kritzer 1990; 1998) and it is an important part of RISKS. Kritzer uses this measure to compare the fees earned [*251] by lawyers using the contingency fee to those earned by lawyers using an hourly fee. It is only with such a measure, he would argue, that we can make any meaningful statements as to whether the contingency fees earned by lawyers are appropriate and whether it makes sense to reform the fee system.

Most simply, effective hourly rate is the fee received by the lawyer in a contingency fee matter divided by the number of lawyer hours invested in that matter (p.181). More useful Kritzer argues, given the risks incurred by lawyers in contingency fee matters, is to assess an effective hourly rate over some set of matters – in the aggregate (pp.182-83). [2] The ideal comparison for Kritzer involves lawyers who handle both contingency fee and hourly fee work and who also keep track of the hours invested in their contingency fee portfolio (or who can at least provide a reasonable estimate). Only a minority of his Wisconsin sample fit this ideal, but he reports that in the aggregate their effective hourly rates are not out of line with the lawyers’ own reported hourly rates.

Kritzer’s analysis of effective hour rates is much more sophisticated than this single example (pp.181-218). Applying multivariate techniques, it looks at the variation in effective hourly rate based on the characteristics of lawyers and of the matters handled. When all is said and done, Kritzer’s findings on the effective hourly rate fail to support the claims that there are widespread contingency fee abuses. He concludes, “there are clearly profits to be made from contingency fee work. For most lawyers handling cases on a contingency fee basis, it is a small subset of cases, typically the top ten percent, that produce the largest profits. However, the typical contingency fee practitioner can expect even the remaining 90 percent of cases as a portfolio to produce a fee premium on the order of 25 to 30 percent of what market-rate hourly fee work generates” (p. 218). This premium, Kritzer argues, is commensurate with the risks lawyers take in handling contingency cases. If there were not a modest premium, we would not expect lawyers to eschew the no-risk hourly rate for the riskier alternative.

Kritzer’s work on the effective hourly rate has been a target for those pushing for major changes in the use of the contingency fee. According to one reform advocate, Professor Lester Brickman, “On the basis of his [Kritzer’s] research, he [Kritzer] has challenged the thesis, which I have advanced, that contingency fees yield inordinately high rates of return. Indeed, Kritzer is the leading proponent of the position that the effective hourly rates of return of plaintiff attorneys are substantially the same as those realized by hourly rate lawyers in similar matters and is widely cited for that proposition” (Brickman 2003, 662-62). [3] This quote comes from Brickman’s most pointed critique of Kritzer, in a law review article devoted entirely to a detailed refutation of Kritzer’s earlier research (Brickman 2003). In many respects RISKS is not simply the synthesis of his work on the contingency fee in Wisconsin. It can also be read as a vigorous and admirable response to the criticisms of his earlier work by reform advocates like Brickman, who has been Kritzer’s chief nemesis. [*252]

RISKS is based on a mixture of different methodologies and data: a mail survey of Wisconsin lawyers, semi-structured interviews of Wisconsin lawyers and insurance claims adjusters, and participant observation in three law offices. It is about more than just the effective hourly rate, and it has much to tell us about the use of the contingency fee and the lawyers who use it. There is a chapter on how lawyers in the Wisconsin survey get clients and how they decide which cases to handle. Contrary to what many might presume, advertising is not a major source of clients, and a relatively small proportion of potential cases are actually taken. Drawing from the observations and interviews is a chapter devoted to the work of lawyers who take cases on a contingency fee basis. Among the findings is the importance of efficiency. Lawyers using the contingency fee “want to run their practices efficiently because they profit from efficiency. This stands in contrast to lawyers working on an hourly basis, where one could argue that inefficiency, to the extent that clients will tolerate it, leads to increased profit” (p.137). Reminiscent of some of Kritzer’s earlier work from the Civil Litigation Research Project (Kritzer 1991), RISKS has a detailed chapter on settlement negotiations.

Perhaps most interesting is a chapter on lawyer reputation. The importance of reputation is among the most significant findings in RISKS. It helps explain how lawyers get cases, especially the cases with the greatest potential for profit, and how settlement negotiations will play out. A lawyer’s reputation will help determine how the other side will behave, the nature of the settlement offers, and ultimately the outcome. Kritzer ends this chapter by reminding the reader of the classic quote from Publius Syrus that “a good reputation is more valuable than money” and then saying, “For the contingency fee lawyer, a good reputation is money, because having a ‘good’ reputation along the right dimensions is central to a profitable contingency fee practice” (emphasis in original) (p.252).

RISKS is not without some weaknesses, and two are worth mentioning because they may cause some confusion in interpreting the findings: the use of the term “contingency fee lawyer,” and the discussion of “modern portfolio theory.” The concept “contingency fee lawyer” is introduced on page 2 after a quick discussion of recent criticisms and attacks on what are called “trial lawyers,” also described as “plaintiffs’ lawyers” or “ambulance chasers” (p.1). Contingency fee lawyer is used broadly to include these lawyers as well as the attorneys in his Wisconsin data base. My concern is that the term is used too broadly for what is actually covered in RISKS and may give the wrong impression of who is being studied.

When we use an adjective in front of “lawyer” we usually do so to distinguish one particular group from another. This set of lawyers is then assumed to share some key characteristic. When that characteristic describes an area of legal practice, we normally understand this as specialization – such as divorce lawyers or probate lawyers.

In RISKS, what defines the lawyers studied is that they handle some amount of business on a contingency fee basis and are members of the Litigation Section of the state bar association. For [*253] most of these lawyers, such work does not really define their practice. They occasionally, perhaps infrequently, take contingency fee cases. They are not specialists as the term contingency fee lawyer could be interpreted to mean (pp.27-28). Only one-third of the lawyers in the study are identified as personal injury specialists, a group that could fairly be described as contingency fee lawyers because the bulk of their practice consists of such work (p.27). Raising this issue does not diminish the value or importance of RISKS; it is merely an interpretation caveat.

In order to provide a framework for interpreting his findings, Kritzer uses the idea of a “portfolio” and views lawyers as managers of a portfolio of cases. Contingency fee cases are, to varying degrees, risky because outcomes are uncertain, and lawyers must find ways to deal successfully with risk across their practice – the portfolio – to make a profit. Used heuristically, this idea works very well because it raises a series of useful and interesting questions whose answers provide a deeper understanding of lawyers’ work and their use of the contingency fee (pp.10-19).

Chapter One introduces the portfolio analogy, but it is not clear whether the idea is to be used as a heuristic or whether something more specific and rigorous is intended. The possibility for confusion arises with discussion of “modern portfolio theory” (a sophisticated theory taken from the world of investments) and the occasional reference to it throughout the remainder of the book. Modern portfolio theory does not seem to fit very well here as a source of theoretical explanation. It is a way of dealing with risk and uncertainty through asset allocation over some time horizon given an acceptable level of investor risk. Variation in risk tolerance and time horizon will lead to different mixes of investment. The key is asset allocation or diversification – spreading the risk over a mixed set of holdings rather than concentrating on one class or closely related sets of investments. Put simply, don’t put all of your eggs in one basket.

Although Kritzer’s lawyers spread their risks across a number of cases, there is no evidence of optimization of asset distribution, consideration of time horizons, or calculation of the amount of risk that is tolerable. To follow the logic of modern portfolio theory, we would expect most lawyers to be generalists and few to be specialists of any kind, but only 21% of the lawyers in the survey characterize theirs as a general practice (RISKS, 27). The remainder report concentration of work in a particular substantive practice area. In a sense, they put all, or most, of their eggs in one basket. If nothing else, Kritzer’s Wisconsin lawyers are at least somewhat specialized, as indicated by membership in the State Bar’s Litigation Section.

The reality is that, to varying degrees, attorneys specialize. Rather than dealing with risk by diversification, they look to carve out substantive practice niches in which they can very carefully choose the specific matters to handle in order to eliminate as many risky or questionable situations as possible. This is perhaps best illustrated by the institutionalization of specialization through certification programs by state bars and private affinity organizations. For instance, in Texas a lawyer can become certified by [*254] the Texas Board of Legal Specialization in 20 different areas of practice. Among them are civil trial, personal injury trial, civil appellate, criminal, family, and farm and ranch real estate. Again, raising this issue does not diminish the value or importance of RISKS; it is just a caveat about interpretation.

My concern over the possibility of confusion regarding “contingency fee lawyers” and “modern portfolio theory” should not be taken as a lack of enthusiasm for RISKS. It is an excellent piece of scholarship that adds substantially to our understanding of the contingency fee and speaks to important public policy issues.

REFERENCES:

Brickman, Lester. 2003. “Effective Hourly Rates of Contingency Fee Lawyers: Competing Data and Non-Competitive Fees.” 81 WASHINGTON UNIVERSITY LAW QUARTERLY 653-736.

Karsten, Peter. 1998. “Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Fee Contracts, a History to 1940.” 47 DEPAUL LAW REVIEW 231-260.

Kritzer, Herbert M. 1990. THE JUSTICE BROKER: LAWYERS AND ORDINARY LITIGATION. New York: Oxford University Press.

Kritzer, Herbert M. 1991. LET’S MAKE A DEAL: NEGOTIATIONS AND SETTLEMENT IN ORDINARY LITIGATION. Madison: University of Wisconsin Press.

Kritzer, Herbert M. 1998. “The Wages of Risk: The Returns of Contingency Fee Legal Practice.” 47 DEPAUL LAW REVIEW 267-319.

MacKinnon, Frederick Benjamin 1964. CONTINGENT FEES FOR LEGAL SERVICES: A STUDY OF PROFESSIONAL ECONOMICS AND RESPONSIBILITIES. Chicago: Aldine Publishing Company.



© Copyright 2005 by the author, Stephen Daniels.

[1] For instance, in testifying before the U.S. Senate Judiciary in 1995 on the contingency fee, he argued that “the data I have been able to locate fail to support the claims of the critics of current contingent fee practice that there are wide spread abuses . . . . those considering major reforms need to obtain reliable, systematic information on . . . contingent fees . . . before instituting significant changes” (Brickman 2003, fn.20). The findings reported in RISKS provide no more comfort to those critics.

[2] Those risks include the possibility of no fee in an unsuccessful matter as well as not being reimbursed for the expenses incurred in handling that matter.

[3] Brickman is associated with the Manhattan Institute’s Center for Legal Policy, a conservative think tank that has been an aggressive proponent of civil justice reform for 20 years.

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GRISWOLD V. CONNECTICUT: BIRTH CONTROL AND THE CONSTITUTIONAL RIGHT OF PRIVACY

by John W. Johnson. Lawrence: University Press of Kansas, 2005. 272pp. Cloth $35.00. ISBN: 0-7006-1377-3. Paper $15.95. ISBN: 0-7006-1378-1.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile@mtsu.edu.

pp.246-249

Few twentieth century cases were more consequential or controversial than GRISWOLD v. CONNECTICUT, the 1965 case in which the Court majority, led by Justice William O. Douglas, invalidated a Connecticut birth-control law on the basis of a “right to privacy.” The decision served as the foundation for the Supreme Court’s decision in ROE v. WADE (1973) and subsequent cases liberalizing most state abortion laws. Today, those who seek to strike down sodomy laws, legitimize gay marriage, or create a “right to die” continue to evoke GRISWOLD and the right to privacy it affirmed.

On the year marking the fortieth anniversary of the opinion, historian John Johnson provides a highly readable account of GRISWOLD that, like Anthony Lewis’s classic account of GIDEON v. WAINWRIGHT (1963) in GIDEON’S TRUMPET (1964), would be suitable for introductory American government or law classes. The work is also valuable to constitutional scholars with an interest in exploring the area of privacy in greater depth, albeit without the detail of longer works like David J. Garrow’s, LIBERTY AND SEXUALITY: THE MAKING OF ROE v. WADE (1994).

Johnson sometimes states the obvious, as when he observes that “commentary on Supreme Court decisions regularly finds its way into the pages of legal periodicals, generally called ‘law review’ or ‘law journals’” (p.190), but most scholars will accept such comments as part of the author’s attempt to appeal to dual audiences. Less satisfactory is the publisher’s decision (apparently consistent with the larger series of which it is a part), to omit all footnotes or endnotes. Although Johnson compensates in part by referring by name to court decisions and by including a useful bibliographic essay that covers both primary and secondary materials, he might have further helped by identifying more scholars by name in the text, as where he cites “one legal historian” (p.61), or where he refers to “one expert” (p.222).

Johnson provides good descriptions of the 1879 Comstock law, of early attempts by Justice Louis Brandeis and others to gain recognition for a right to privacy, of the major participants in the case, of the recurring but unsuccessful attempts to get the Connecticut legislature to repeal the birth control laws, and of prior cases that had reached the Court both in regard to privacy in general and birth control in particular. Johnson reminds readers that while it was illegal for doctors to prescribe birth control in Connecticut, it was not illegal for pharmacies to sell condoms, which [*247] were classified as disease-prevention, rather than as birth-control devices. Similarly, while prohibiting doctors from prescribing birth control, Connecticut allowed for abortion to preserve the life of the mother (p.111).

One of the fascinating aspects of this book is its treatment of Supreme Court clerks. Chief Justice Earl Warren’s clerk, John Hart Ely, who later became a noted legal scholar, confidently scoffed at the idea of a constitutional right to privacy while suggesting that the Court might be able to overturn the law on equal protection grounds or on the argument that it was not tightly drawn (p.154). At one point, he wrote that “I do not think the Court should enforce clauses which are not there” (p.136). Justice Douglas, who thought that clerks should be seen and not heard, barely heeded his clerks. Paul Posner, Justice Brennan’s clerk, helped persuade Brennan, who used his clerks to garner information from the chambers of other justices, that Douglas’ initial draft needed further work, while current Supreme Court Justice Stephen Breyer, then clerking for Justice Goldberg, prepared much of the research on the Ninth Amendment as well as the first draft of Goldberg’s concurring opinion (p.170).

Perhaps because Johnson traces the developments of the right to privacy in previous cases, and even prior mentions of “penumbras,” the description of the actual decision in GRISWOLD v. CONNECTICUT is almost anticlimactic. To this reviewer, at least, the analysis in BOYD v. U.S. (1886) with its reference to “the sanctity of a man’s home and the privacies of live,” and concerns about “the invasion of his indefeasible right to personal security, personal liberty and private property” (quoted by Johnson, p.63) seems much more forthright than Douglas’ own reference to a mishmash of amendments that might bear some relation to privacy.

Douglas’ majority opinion in GRISWOLD rests on the idea that the provisions of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments had “emanations” that cast “penumbras” implicating a right to privacy. In concurrences, Justice Harlan advanced the idea, which he had previously introduced in POE v. ULLMAN (1961), that the right to contraception was among the liberties protected by the due process clause of the Fourteenth Amendment, while Justice Goldberg argued that it was implicated by the Ninth Amendment. In dissent, Justices Black and Stewart argued that, however much they valued privacy, they could not find it within the text of the Constitution.

Consistent with a book designed chiefly to explicate rather than to advocate, Johnson explains each position without embracing any of them. After tracing the expansion of the right to privacy to include contraception by non-married couples, the right to abortion, and the right to sodomy, Johnson concludes that “The majority opinion in GRISWOLD . . . remains one of the most idiosyncratic opinions in the two centuries of Supreme Court history. For a decision announcing a major constitutional shift, it is creative but maddeningly cryptic” (p.224). Given such a fragile base, one wonders why the decision is now regarded, as Johnson suggests, through an unnamed scholar, that the confirmation hearings for Robert Bork [*248] and other justices indicate that it is, “as a ‘fixed star in our constitutional firmament,’” a “litmus test for membership in the ‘mainstream of constitutional thought’” (p.222).

Johnson believes that GRISWOLD continues to have implications for the issue of gay civil unions and marriages, but he is not altogether clear as to whether adherence to GRISWOLD requires that such legal arrangements be accepted and suggests that this issue might ultimately be resolved through equal protection, rather than through privacy, analysis. One wonders whether the same scholars, who argue that the expression of public opinion in judicial confirmation hearings has enshrined GRISWOLD as part of the legal mainstream, will pay equal attention to bans that Johnson says thirty-seven states have subsequently enacted, many by popular referenda, on gay marriages. Better yet, how, if at all, can such positions be reconciled? Would it have been possible to formulate a right to privacy, as Chief Justice Warren apparently hoped, that did not justify abortion (p.153), or at least not virtual abortion-on-demand?

Johnson portrays Justice Kennedy’s decision striking down sodomy laws in LAWRENCE v. TEXAS (2003) as more consistent with GRISWOLD than the earlier decision by Justice White in BOWERS v. HARDWICK (1986) upholding such laws, and arguably it is. Johnson mentions Justice Scalia’s dissent in LAWRENCE (p.227), but devotes little attention to the consequences that Scalia believes the decision could have not only for gay marriage but also for plural marriages and other nontraditional arrangements.

Scholars who dismiss warnings of judicial over-inclusiveness by Hugo Black, Potter Stewart, and John Hart Ely, may take comfort in Johnson’s observation that, to date, “Selling narcotics, fixing prices, and planning violent crimes cannot be insulated by a right of privacy; nor can pedophilia, rape, and prostitution” (p.210). Still, one wonders why “fornication and adultery” laws, and laws against prostitution, have not been protected by the right to privacy but sodomy has (pp.210-11). Why is partial-birth abortion protected by the right to privacy, while cruelty to animals is not? One further wonders whether the elusive right identified in GRISWOLD is capable of resolving some of society’s most controversial issues, including the “right to die.” Noting early in the book that the closest the Constitution comes to recognizing privacy is its mention of “private” property, Johnson comments that “[a]ll that needs to be noted at this junction is that it is conceivable that privacy was on the minds of the writers of the Bill of Rights” (p.54). By book’s end, this does not seem like quite enough. Johnson deserves credit for writing a book that identifies some fascinating questions, even if he does not answer them all.

REFERENCES:

Garrow, David J. 1994. LIBERTY AND SEXUALITY: THE MAKING OF ROE v. WADE. New York: Macmillan.

Lewis, Anthony. 1964. GIDEON’S TRUMPET. New York: Random House.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 US 186 (1986). [*249]

BOYD v. U.S., 116 U. S. 616 (1886).

GIDEON v. WAINWRIGHT, 372 US 335 (1963).

GRISWOLD v. CONNECTICUT, 381 US 479 (1965).

LAWRENCE v. TEXAS, 539 US 558 (2003).

POE v. ULLMAN, 367 US 497 (1961).

ROE v. WADE, 410 US 113 (1973).



© Copyright 2005 by the author, John R. Vile.

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GO DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST EVERYTHING

by Gene Healy (ed). Washington, D.C.: The Cato Institute, 2004. 192pp. Hardcover. $17.95. ISBN: 1-930865-63-5.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University. Email: smithc28@msu.edu.

pp.242-245

When examining a volume prepared and published by an institutional entity known for having a particular perspective and espousing specific political values, it may be difficult for the reader to avoid applying a heightened sense of skepticism and caution. It is easy to fear that a perspective-driven book, especially one with a tone of advocacy, will lull an unwary reader into accepting biased evidence and unsubstantiated assertions. I have no doubt that I consciously approached this book with heightened skepticism because it was published by the Cato Institute. However, my skepticism – or that of any other potential readers – should not prevent this book from finding its audience. Is it provocative? Absolutely. Yet it is valuable nonetheless. In fact, this book reminds me of what can be refreshing about a book from a place like the Cato Institute. There is no hidden agenda. There is no unintentional masquerade by authors who seem to lack awareness about their own perspectives and values. The criticisms of government and law contained in GO DIRECTLY TO JAIL are very forthright and direct, as are the values that drive these criticisms.

GO DIRECTLY TO JAIL contains six previously published articles including one by the book’s editor, Gene Healy, a senior editor of the Cato Institute, who also wrote the “Introduction.” The hyperbolic subtitle of the book, “The Criminalization of Almost Everything,” provides a nutshell summary of one of the book’s main themes. The attention-grabbing title and subtitle perhaps do a disservice to the book because the articles also actually include discussion of important and complex issues, such as federalism, judicial discretion, and the moral dimensions of criminal law.

The articles are true to the mission of the Cato Institute in several respects. They espouse libertarian themes ranging from the purported over-regulation of business, to the diminution of individuals’ constitutional rights, to the perversion of justice through excessive prosecutions and sentences. As indicated by these thematic examples, the book cannot be classified as espousing either a “liberal” or “conservative” viewpoint. For example, liberal politicians are criticized for the criminalization of business activities through environmental regulations, while conservative politicians receive criticism for actions that lead to excessive prosecutions and punishments. Healy’s article asserts, for example, that “President Bush’s initiatives [for prosecuting gun crimes] suggest that, where it counts, political expediency will trump respect for federalism” (p.100). The articles are also consistent with the Cato Institute’s mission in their conscious tone of advocacy. Although [*243] the articles tend to be weighted toward providing criticisms of current laws and policies, several articles also take the admirable next step of providing concrete suggestions for reform.

The volume begins with Erik Luna’s very brief article, “Overextending the Criminal Law,” presenting examples of silly criminal laws and introducing glimpses of arguments that are discussed more fully in subsequent articles, such as the costs of over-regulation and the desirability of keeping mens rea as a central element of criminal law. “The New ‘Criminal Classes: Legal Sanctions and Business Managers,” by James V. DeLong, criticizes punitive regulations with special attention to environmental regulations and the prosecution of business managers for environmental and financial matters. DeLong argues that expansive regulatory schemes produce excessive complexity, diminish the role of intent for purposes of punishing misdeeds, produce excessive intrusiveness by government, and diminish certain constitutional protections. He suggests several specific reforms related to these issues.

The article by Timothy Lynch, “Polluting Our Principles: Environmental Prosecutions and the Bill of Rights,” uses examples that are similar to those in other chapters, but Lynch focuses on the diminution of rights in prosecutions based on regulations. His article highlights issues related to regulatory searches, culpability without fault, double jeopardy, and self-incrimination. His discussion illuminates the ways in which regulation-based enforcement moves through processes that do not provide the same constitutional protections as those available in traditional criminal prosecution. Lynch also makes specific suggestions for reform.

While the articles by DeLong and Lynch focus primarily on regulation related to environmental protection, Grace-Marie Turner’s “HIPAA and the Criminalization of American Medicine” raises similar issues concerning Medicare and Medicaid. Taken together, these three articles present forceful criticisms of the consequences of imposing criminal penalties as a means of oversight and accountability of activities – land use, business operations, medical billing – that traditionally have not been subject to the moral condemnation and punitive sanctions attendant to the application of criminal law. All of these articles provide interesting facts and provocative examples to make their points. For many of us who teach criminal justice-related courses by focusing on the statutory penal code and attendant prosecutorial processes and individual rights, these chapters provide valuable material that can help us expand the range of issues that we discuss.

There are, however, elements within each chapter that raise questions about whether the authors are providing a comprehensive picture of the topics that they discuss. For example, some of the brief, anecdotal examples of outrageous prosecutions and punishments for people who have – seemingly – done nothing wrong make one wonder whether there is more to the story underlying each particular case. The authors are conscientious about presenting citations to sources, so readers can follow up on any examples that are of particular interest. When two authors cite the same [*244] example or one author uses a single example more than once in an article, this raises questions about whether problematic cases are numerous or whether these examples merely present a small number of the most unrepresentative and rare worst-case scenarios. As with other advocacy-based writing, there are also moments when the reader may wonder if an author has resorted to unsubstantiated, hyperbolic statements. For example, Turner says that “[m]any of the nation’s 650,000 physicians are living in fear that they could face armed federal agents, prosecution, and even jail time because of the dangerous new trend of criminalizing the practice of medicine” (p.74). How do we know if this statement is true? How many is “many”? What evidence is there that they are “living in fear”? Perhaps such statements are true, but it is not clear that Turner or the other authors have presented enough empirical evidence to substantiate claims about the extent to which expanded criminalization creates adverse consequences.

A more important question is whether the authors believe that pollution, financial misconduct, medical billing fraud, and other targets of regulation are important, pervasive, or harmful problems. The authors highlight problems with current laws and make reform proposals, but they do not devote significant attention to the underlying issues, such as water pollution and Medicare fraud, that contributed to the development of the regulatory schemes in the first place.

The final two chapters in the book focus on the implementation of specific criminal justice policies rather than expansion of criminal law. Healy’s article, “There Goes the Neighborhood: The Bush-Ashcroft Plan to ‘Help’ Localities Fight Gun Crime,” criticizes the Project Safe Neighborhoods (PSN) program through which federal prosecutors work with local officials to prosecute people for gun offenses. Healy provides a very useful brief history of federal involvement in criminal justice before presenting a forceful lamentation about the demise of federalism as illustrated by the PSN program. The book’s final article by Erik Luna, “Misguided Guidelines: A Critique of Federal Sentencing,” analyzes problems associated with federal sentencing guidelines. More so than the earlier ones, the final chapter focuses on a subject that has received significant attention from other scholars in various books and articles. Luna’s presentation is valuable because it highlights important issues and provides striking examples of individual cases that raise questions about the desirability of sentencing guidelines. This chapter is an abridged version of an article that was originally published in 2002 so it does not include consideration of the recent upheaval affecting sentencing guidelines based on Supreme Court decisions concerning the necessity of fact-finding by juries, rather than judges, in the determination of sentencing factors.

GO DIRECTLY JAIL is a useful volume that can help to expand professors’ and students’ understanding of the criminal sanctions attendant to regulatory violations. The book provides many provocative examples that will generate discussion, and it also provides concrete suggestions for reform that can be the focus of consideration and debate. The conscientious use of citations can help [*245] interested readers investigate questions that arise from the authors’ advocacy orientation, extreme examples, and occasional hyperbolic statements. Most of the topics discussed in this book are neglected in standard works on criminal law, so the authors provide a valuable service by expanding readers’ awareness of important issues. Whether or not one sympathizes with the authors’ libertarian values, the book provides useful information and achieves its goal of provoking readers to view these issues from a critical perspective.



© Copyright 2005 by the author, Christopher E. Smith.

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THE COURTHOUSE SERIES

by U.S. General Services Administration. Washington, DC: GSA, Office of the Chief Architect, Public Buildings Service, 2000-2004.

Reviewed by John Brigham, Department of Political Science, University of Massachusetts, Amherst. Email: brigham@polsci.umass.edu .

pp.238-241

In the last fifteen years the national government in the United States has spent about $15 billion on courthouses. These buildings have altered the local landscape and changed the face of federalism. The presence of the national government has been updated, beautified and it has become extraordinarily more monumental in a very short time. One of the keys to the look of the new federal courthouses is the work of the General Services Administration about which the GSA itself has had quite a bit to say.

A surprisingly interesting and important new resource for the LPBR community is a series of small books published by the GSA. Each book is 35-45 pages long and focuses on one of the new federal courthouses that have gone up around the country. The staff at the “Office of the Chief Architect” in the GSA calls these publications “White Books” because, though they have wonderful photographs on the cover, the dominant color is white. Publishing the books is part of the process of constructing and then celebrating the buildings. The print run of each booklet is 3,000 and they are sent to libraries, schools of architecture and other outlets for the design community.

Marilyn Farley was my contact for these materials. She directs the “Design Excellence” program in the GSA Office of the Chief Architect in Washington, DC. I met her at a presentation hosted by the Center for Architecture in New York City. The Center is the headquarters for the New York Chapter of the American Institute of Architects. It maintains a street level presence on Mercer St. in Greenwich Village.

The occasion for our meeting was a panel discussion on the Moakley Federal Courthouse in Boston. Architect Henry Cobb, Justice Stephen Breyer, Judge Douglas P. Woodlock, and other distinguished contributors to the creation of the courthouse led the session. On every seat was a 46 page booklet titled JOHN JOSEPH MOAKLEY UNITED STATES COURTHOUSE AND HARBORPARK. On the cover is a picture of the courthouse by Steve Rosenthal. Inside are 25 color pictures, two old black and whites, and five architectural drawings, along with text explaining the Boston courthouse project.

I found out later that the booklet on the Boston courthouse was only one of more than a dozen celebrating courts in Phoenix, Long Island, Las Vegas, Los Angeles, St. Louis, Cleveland, West Virginia, Montgomery, Indiana, Omaha, Youngstown and Seattle. The booklets are in every case representative of the design excellence that is the middle name of the office that produced them. There are eight more on other federal [*239] buildings, in addition to the ones on courthouses.

One of the striking things about these publications is that there is no author. While the celebrated buildings are credited to architects, the photographs to photographers, and the quotations in the books to the judges, artists and others involved with the projects, the only credit for the books is the “Staff of the Center.” I was told that the books did not credit an author because the staff were paid by the American people and did not need recognition. One senses how extraordinary this project is in maintaining this notion of anonymity in the service of the public. Institutional authorship is a noble and rarely heard value. Like many of us, I am also paid by the state, but I get credit for my work. And, many of us have had to go to private providers for the text of Supreme Court opinions for years, not only dealing with private sources for public materials but having to pay for them too.

Each book in the series, like the buildings, does some basic work, placing the courthouses within a local context, attributing construction to important judges, architects and construction firms and providing short biographies of the architect. They also contain materials on the art in the buildings and a biography of the artist chosen with the architect as part of the design competition. Thus, the books put the creative stamp of those involved, particularly the GSA, on the projects.

Each of the books ends with a statement about the project that was established in 1994 to “change the course of public architecture in the Federal Government.” Daniel Patrick Moynihan articulated the program goals in 1962 in what has come to be called “Guiding Principles for Federal Architecture.” These principles include avoidance of an official style and incorporation of the work of living artists, in addition to the pursuit of excellence in architecture.

Moynihan’s text and the theory behind it are both quite extraordinary. Read closely, they help to explain what the federal government and its courts have been doing. The impact these buildings are having on the urban landscape and the dramatic new way that the federal government is being presented seems to me to rival the building boom of the New Deal. The current boom, little talked about in political terms and little noticed as an aspect of how law is constituted in America, may have consequences for how we perceive our government on a scale comparable to the early 1800s, another “Federal” period where legal and architectural change is evident.

The booklets also attend to the notion of civic architecture in a language that combines basic principles of American government and law with the way people in the arts describe their work. About the Long Island Courthouse, its booklet says, “The building strikes a balance between expressing its stateliness with a certain formality and expressing an openness with a public plaza and interiors that welcome visitors and let them know that the justice system represented within is open and accessible to all” (p.4). The booklet for the Lloyd D. George Courthouse in Las Vegas has a section called “Designing a Civic Building” which reads, in part, “The exterior limestone, pre-cast concrete, and metal are durable and of [*240] high quality. Like the courthouse, they are meant to last” (p.16).

There is a “Profile” of Sandra Day O’Connor in “her” booklet, which introduces the huge new courthouse in Phoenix. The first woman on the Supreme Court, Justice O’Connor is presented in terms of her official achievements rather than her connection to the Southwest, other than to say that “her early years were spent on the family cattle ranch.” The booklet on the Moakley contains a short biography of the U.S. Congressman from South Boston for whom the building is named. Congressman Joe Moakley died at 74 in 2001 after serving in the House for 20 years. He is associated with environmentalism and the clean up of Boston Harbor. Neither the biographies nor the booklets as a whole venture close to critique, but neither do they seem false or so hyperbolic as to be difficult to read or inappropriate to offer here in a scholarly forum.

The booklets reflect on the buildings in other respects. The Moakley booklet calls the building in Boston “a lesson in civics through the medium of architecture.” It goes on to claim that the siting, form, layout and materials used in the building express “the fundamental democratic principles of equality, fairness, openness, and accessibility.” The claim is both grand and prosaic. The Boston courthouse is a stunning building and it does include public places, available to all and not just for those who are going to court. There is a dramatic waterfront park allowing visitors to have lunch or look back on the city of Boston.

The Boston building is made of brick and this feature is noted prominently. Brick is a traditional material in the city of Boston. It is also a construction material that employs many strong union hands. And, while the level of analysis that links the party affiliation of the workers to the buildings is absent, these associations are not difficult to see. In fact they are connections the judges who work in the buildings seem quite willing to acknowledge in the semi-private gatherings that celebrate their construction. Conversely, the O’Connor courthouse is made of glass necessitating an explanation for how that makes environmental sense in a “part of the country where summer temperatures can reach 122 degrees Fahrenheit.”

The challenge of this review and one of the things that has interested me throughout the project is what I see as a lack of critical tension in these little books. They seem to me to reflect the buildings where, once they are constructed we do not see the tension that goes into them. They may stand as something solid and functional, maybe even elegant and inspiring. Or they might develop problems, with all that glass in Phoenix, for instance. They may become much loved with age or they may go out of fashion like those that went up twenty years ago. Or, there may be design mistakes that make them hard to work in or very expensive to operate, such as when they get very hot.

These buildings do not look like courts in the traditional sense, but my guess is that they are changing our idea of what a court looks like. I think that we have here a community constituted by the arts in a world of bureaucracy. Aesthetic bureaucrats are very active in [*241] redesigning what we understand as the local presence of the federal government. The GSA is giving us not only monumental edifices but published work by which to know these buildings.

In another generation we may think of the local presence of the federal government in terms of monumental architecture and the aspiration for justice. Or, it may be that these buildings give new meaning to big government and the limits on local prerogative that is part of a shift from local to national power.



© Copyright 2005 by the author, John Brigham.

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THE CASE AGAINST PUNISHMENT: RETRIBUTION, CRIME PREVENTION, AND THE LAW

by Deidre Golash. New York: New York University Press, 2005. 240pp. Cloth $45.00. ISBN: 0-8147-3158-9.

Reviewed by Jeremy D. Ball, Department of Criminal Justice Administration, Boise State University. Email: jeremyball@boisestate.edu .

pp.234-237

In THE CASE AGAINST PUNISHMENT, Deidre Golash provides plausible and convincing approaches to understanding the philosophies and theories of punishment. She argues that punishment, as currently applied, is not successful and, in many ways, results in more harm than good. Punishment often is not justified and lacks consistency with its original intentions. Golash proposes to eliminate punishment altogether – albeit gradually. Although I am not convinced of the practicality of this proposal and may disagree with some of the logical thrust behind some of her conclusions, she illuminates irregularities in the theories of punishment that have survived the ethos of the State. It is important first to summarize the content of THE CASE AGAINST PUNISHMENT prior to critiquing the book.

CONTENT SUMMARY

The concept of punishment requires the state to impose harm on convicted offenders. The true thrust behind this work, though, is not whether punishment should be harmful but whether the theories of punishment make sense. As Golash notes, “we ought not to impose such harm on anyone unless we have a very good reason for doing so” (p.1). Scholars have suggested that the harm of punishment is justified in three different ways: the harm is for the good of society, the harm is good in itself, and punishment is not considered harm to the offender.

There are several theories that scholars use to bolster justifications for punishment – namely, incarceration. The first theory Golash addresses is utilitarian theory where more good is resolved than harm. The main thrust behind the utilitarian theory of punishment is prevention. There are three main preventive effects of punishment – deterrence, incapacitation, and rehabilitation – given that punishment serves the greater good of society. Deterrence presents a threat of negative consequences to prevent offenders from engaging in criminal activity in the future. Incapacitation is the restraint of freedom to prevent offenders from engaging in criminal activity during the period of confinement. Finally, rehabilitation presumes that offenders will be less likely to engage in criminal activity after they have been successfully “treated.”

Golash suggests that, for the utilitarian theory of punishment to be successful, it must not only prevent more harm than it causes, but also that the ends of punishment cannot be met by other alternatives. It is difficult to predict the “dangerous” which puts at odds the conclusion that punishment – to a logical end – will prevent dangerous acts. Although one can agree that it is wrong [*235] to punish the innocent to serve the greater good, Golash articulates that punishment which produces harm to offenders may also be wrong for those who are guilty.

Another theory of punishment is the retributive theory, which states that offenders who are deserving (or, blameworthy) should receive punishment. Justification is derived from the wrongfulness of the act committed by offenders. The punishment – that is, the intentional and justified infliction of harm – serves to annul the crime. Punishment is only considered for the wrongfulness of the act, not to prevent future wrongdoing. Within this theory, some have argued that punishment is used as vindicating victims. Punishment is a “metaphorical annulment” giving notice to the public that a particular crime was wrong rather than a specific annulment of the criminal act. Punishment is considered an expression of justified anger by the victim due to the violation of trust demanded by society. Those who benefit from the law consent to punishment according to that law; it is a social contract between society and its members. Because of this social contract, it would be unfair to allow particular citizens to benefit from society without restraining their own bad impulses.

Golash argues that retributive punishment does not annul the crime but the will of offenders – that is, offenders will be free without restraint and, therefore, punishment addresses the will of offenders toward wrongdoing. In other words, the victims are never fully restored to the positions they were prior to the criminal act. The conclusion is that a victim has no right apart from her own right to vindicate the offender’s wronging of her. Golash suggests that criminal wrongs cannot be undone, and doing additional harm to the offender only compounds certain social ills that may be highly correlated with the offender’s need for criminal fulfillment. Again, Golash argues that punishment is not the only alternative. Retribution demands a consequence, but that consequence does not necessarily implicate punishment. In the end, if this system demands punishment for those who are deserving, then why are those who deserve good not receiving good?

Another theory Golash reviews is that punishment is sought as a self-defense mechanism. Unlike the social contract approach in retribution theory, the state no longer assumes consent to the social contract. As with self-defense, punishment must be proportional to the offense. Unlike retribution, punishment is not concerned with the moral wrongfulness of the act but is concerned about the specific harm created by offenders. As with self-defense, additional harms are unnecessary and not justified.

Golash argues that punishment as self-defense does not flesh out important differences. First, self-defense requires force to defend against an imminent attack. As with previous theories, the force of punishment is not essential; there are always other alternatives. Second, self-defense requires that those defending themselves impose the harm. Punishment is often a response by the state for social harms, as opposed to personal injuries to individuals. Third, if punishment is self-defense, then it should be imposed to prevent imminent [*236] acts; however, punishment is retrospective. Therefore, punishment is not a self-defense mechanism.

A final theory summarized by Golash is that punishment is a way to communicate to offenders and others about changes that must occur in one’s moral character. This theory justifies punishment “both on the ground that the state has a legitimate interest in the moral good of its citizens . . . and on the ground that the rights of others are invaded by such acts” (p.123). In other words, punishment is for the good of the offender – as opposed to the good of society – and serves to communicate the wrongfulness of offenders’ acts. Punishment, in promoting good moral character, can restore lost and damaged relationships.

In order for this theory to operate correctly, offenders must have an attachment to the state as a parent has attachment to a child. Without such connectedness, offenders will not be receptive to the communications and will not change their moral character. Also, hard treatment – or, prison – alone cannot restore relationships. As with other theories, Golash suggests that there are alternatives to the imposition of punishment in order to achieve moral reform in any particular offender.

Golash suggests that “hard treatment” is not likely to produce the desired results. In the end, what is the solution? Golash asserts that eliminating certain social ills – income inequality, poverty, social disorganization, and family stress – would likely be more successful than punishment. She argues that there are many correlates to crime that can be addressed without harming offenders and following the skewed logic that it involves. Addressing social ills – such as income inequality and unemployment – may be a better strategy for dealing with social and psychological causes of crime. Punishment would no longer be a necessary mechanism for crime prevention and management.

Golash freely admits, though, that responding to social ills cannot prevent all crime; social policy changes may not prevent as much crime as punishment currently does. “The harms – and the wrongs – done by crime cannot be undone, and for many victims of serious crime life will never be the same” (p.161). What is the alternative to punishment for these situations? Golash has a few suggestions. First, the communication can occur through trial procedures and symbolic condemnation, thus operating more like a civil lawsuit. Second, vindication of victims’ rights can occur through some kind of compensation by the offender. Although victims may never receive compensation, there is inherent value in prosecuting a case and maintaining a record in the offender’s file. Finally, opportunities are provided for reconciliation between offender, victim and the community, moral change is promoted through personal attachments and integrative shaming techniques, and community is protected through support groups of previous victims.

COMMENTARY

Golash provides a good synthesis of the theories of punishment, addressing important and relevant nuances of the purposes and rationales for criminal sanctions with a fresh, yet skeptical, outlook. [*237]

The author espouses a particular political perspective that relies heavily on social awareness and that may not be agreeable to the conservative right. Although she did not engage in political brow-beating or promote an overt political agenda, the political bent to her discussion of punishment is clear.

Moreover, although Golash may adequately argue why current punishment regimes do not meet the terms of theory, she ignores the practical world of the political environment. Public policy of punishment is often driven by political constituencies, and this needs to be considered when giving recommendations to eliminate punishment. Although punishment can be disassembled for failure to meet basic needs of particular theories, political constituencies may overwhelm the voice of reason.

Golash fails to recognize the important role played by criminal punishment in maintaining social order. Although the process of delivering sanctions may result in more harm than good, without punishment, some would argue, chaos will ensue. Without the full leverage of the State, order may be lost for quite some time. It is difficult to imagine what eliminating punishment would do to the order of society.

In addition, Golash could have bolstered her argument by assessing more social science research. Although she briefly summarizes a few statistics, there is a wealth of social science studies on all the questions she addresses, and that literature should be taken into account.

Finally, some of the solutions offered in the last chapter of the book are tenuous at best. For example, even though Golash argues that public policy should not inflict more harm than good, some of her policy suggestions do just that. One of her solutions is to equalize income inequality as a replacement for punishment. First, she fails to accept that the United States is a capitalist society where competition is encouraged. To even the economic playing field in the interest of preventing criminal activity would likely injure innocent lives. In other words, to finance some of her solutions would require taking money out of the pockets of many who are entirely innocent.

In the end, though, Golash fleshes out the arguments of each theory of punishment and reveals their inconsistencies. Scholars in the field often address the notions of prevention and retribution without understanding all of the nuances of the theory that underlies their investigation. This is a book that can spur good discussion and stimulate critical thinking.



© Copyright 2005 by the author, Jeremy D. Ball.

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THE LAW OF TREATIES

by Scott Davidson (ed). Burlington, VT: Ashgate/Dartmouth, 2004. 606pp. Cloth. $250.00 / £130.00. ISBN: 0-754-62385-8.

Reviewed by Sanford R. Silverburg, Department of Political Science, Catawba College. Email: ssilver@catawba.edu .

pp.231-233

THE LAW OF TREATIES is an anthology of theoretical articles that offers a wealth of information on treaties. The book is part of a series, The Library of Essays in International Law, from Ashgate Publishing. None of the essays is either an original contribution, nor are any in journals to which a major research or law library would not be expected to be a subscriber. Surprisingly, there is no serious rationale for the selection of the articles given by the editor, Scott Davidson, a law professor from New Zealand, except the categories that set out the positioning of each essay. There is, to be sure, a slim introduction with some commentary concerning the reasons for inclusion of the materials, but it is rather unsatisfying in this regard.

The book is divided into five parts.

Part I-Evolution of Treaties includes a discussion of the substantive components of the Vienna Convention on the Law on Treaties, rather than a dreary history of the development and the traveaux préparatoires of it. This represents the organizational effort of the International Law Commission, codifying years of state practice and international custom, while not defying or deterring any additional positive development. However, notably missing in this massive collection is a treatment of the important and relevant principles of clausula rebus sic stantibus or pacta sunt servanda.

Part II-Nature addresses what exactly can be expected by a “treaty,” as distinct from a pact, agreement, or an understanding. Also included is analysis of an International Court of Justice (ICJ) determination regarding the binding nature of a maritime issue between Qatar and Bahrain, an interesting approach but not exceptionally helpful in providing guidance to the question. We then confront the intriguing question of whether an inter-state agreement, when registered with the UN, becomes a treaty at that juncture in the negotiation process.

Part III-Integrity assesses how the credibility and effectiveness of treaties can be diminished by the legislative bodies of signatories, who, in the ratification process, add reservations to the conditions under which adherence to an already negotiated agreement.

Part IV focuses upon the complexities of Interpretation. It is understood that we are dealing with multiple publicists’ understanding of the process. Perhaps the most important contribution in this section is Judge Sir Gerald Fitzmaurice’s review of the near classic work of Myres McDougal, Harold Lasswell and James Miller (1967, 1994). A more substantive approach is found in an analysis of the International Law Commission’s work given over to the interpretation of treaties in subjective, textual, and teleological formats, followed by a very [*232] structured look at the general method of treaty interpretation.

Part V addresses Invalidity, Suspension and Termination: Prior to the REPARATIONS decision (1949), States were the primary political actors engaged in treaty creation, and subsequent beneficiaries. Following this case, international organizations and national liberation groups are afforded legal personality, and the international community awaits customary acceptance of other organized efforts. The more contemporary practice, particularly as practiced by the European Court of Human Rights, is to view individuals as subjects. The Vienna Convention is a contemporary foundation for the development of this particular instrument of international law. Thus Part One deals with the evolution of treaties as lex scripta, beginning with an article delineating the components of the Vienna Convention. The discussion on the traveaux préparatoires of the Convention focuses on four British lawyers who served as rapporteurs, each of whom is well known to students of international law: James Brierly, Sir Hersch Lauterpacht, Sir Gerald Fitzmaurice, and Sir Humphrey Waldock. Each of these dignitaries added their personal influence to the development of treaties and their acceptance in international law according to the issues of their individual agendas. Not only did individual national lawyers ultimately have an impact on treaty law, but we have also witnessed distinctive national approaches. Thus newer states have tended to emphasize developing state problems, not always appreciated by their more established and wealthier counterparts and often amplified by Communist representatives who viewed international law as rules set by capitalist powers. The Eurocentric approach by the developed world was successful in introducing jus cogens, as indicated by Article 64 with a qualification in the subsequent essay.

While a treaty is, essentially, an agreement between two or more states, depending upon the complexity or the coverage of the issues and in order to accommodate compromise, it may be more important to conclude an arrangement by focusing on a subset of issues. This aspect of treaty law reflects a realistic relationship to international politics allowing a state to enter a multilateral treaty with reservations—the bilateral treaty is not so covered. The analysis of reservations focuses on the opinio juris in RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (1951).

Since language’s primary function is to transmit cultural norms from one generation to another, a signatory’s understanding of a treaty’s meaning may differ as cultural lines are crossed. Hence, a treaty’s function often requires additional effort as t its strictures are put into effect. This stage is the interpretation given to any aspect of the treaty, and this section of the book covers a variety of approaches to treaty interpretation.

The final section deals with the underlying reason for acceptance of a treaty—mutual benefit. When one party to a treaty finds its interests no longer satisfied by a previously accord, there are ways to disengage. Sometimes, [*233] however, the process by which a signatory withdraws from a treaty is not always amicable. There may be several reasons for withdrawal from a contractual arrangement. For example, it may be determined that a treaty has become invalid. Similarly, an agreement can break down, because of a change in circumstances, as exhibited by the CASE CONCERNING THE GABCÏKOVO-NAGYMAROS PROJECT (1998). Most importantly, the Vienna Convention on the Law of Treaties and a consideration of unilateral termination of treaty obligations is sometimes in play.

It is easy to critique the selection of materials in an edited volume; however, it does not seem unreasonable to expect some discussion of issues such as “soft law,” the validity of multilateral treaties to which major states avoid compliance, and treaties dealing with newly developed technological phenomena. A necessary question to ask in any review is “what does it add to our knowledge?” Most major treaties, and related official documentation, are available in online databases. That leaves us with commentary and analysis, which, if perceptive, is quite useful. In this reviewed book, however, all the articles can be found in reasonably accessible sources. Given the published price, one would have to give considerable thought to adding this work to a private collection.

REFERENCES:

Myres McDougal, Harold Lasswell and James Miller. (1967/1994). THE INTERPRETATION OF AGREEMENTS AND WORLD PUBLIC ORDER. Boston: Martinus Nijhoff Publishers.

CASE REFERENCES:

CASE CONCERNING THE GABCÏKOVO-NAGYMAROS PROJECT (Hungary v. Slovakia), 37 I.L.M 162 (1998).

REPARATIONS CASE, ([1949] ICJ Rep. 174) (Advisory Opinion).

RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, [1951] ICJ 15 (Advisory Opinion).



© Copyright 2005 by the author, Sanford R. Silverburg.

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THE GENDER OF CONSTITUTIONAL JURISPRUDENCE

by Beverly Baines and Ruth Rubio-Marin (eds). Cambridge, England: Cambridge University Press, 2004. 356pp. Cloth $75.00 / £45.00. ISBN: 0521823366. Paper $34.99 / £19.99. ISBN: 052153027X.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University. Email: JBAER@politics.tamu.edu .

pp.227-230

In the old days, when scholars argued whether enough research on women existed to fill a course, comparative politics and public law turned early and eagerly to the study of politics and gender. This development coincided roughly with political science’s discovery of comparative public law. But the integration of comparative law and gender studies has barely begun. As the editors of THE GENDER OF CONSTITUTIONAL JURISPRUDENCE point out, the literature on comparative constitutional law “remains “virtually devoid of research that pertains to women’s rights” (p.2.). Beverly Baines and Ruth Rubio-Marin—respectively, a Canadian and a Spanish constitutionalist—have two purposes: to formulate “a feminist analysis of constitutional jurisprudence in which gender becomes the focal point” (p.1), and to “design a feminist constitutional agenda as a middle ground between the extensive and reality-driven delineation of issues that feminist scholars advance and the more rigidly bounded . . . doctrinal categorization found in constitutional law scholarship” (p.5.) The editors make no claim that the twelve studies included here fill the “huge gap—a gender gap—in contemporary comparative constitutional analysis” (p.2) or provide a basis for the constitutional agenda they seek. But this book is a welcome start. Separately and together, these articles add to our theoretical understanding and reaffirm a truth that contemporary political science is in danger of forgetting: the value of single-country studies.

In the old days mentioned above, terms like “area study” were used without accompanying sneers. Many renowned comparativists specialized in a one region or country. But in recent years, specialties like comparative political economy, which do not require knowledge of specific legal systems, cultures and languages, have gained stature in the field. It is difficult to dispute the conclusion of one well-known scholar that the laws of economics apply everywhere, regardless of regional differences. Although this observation is of limited interest to scholars whose interests lie outside political economy, a hierarchy of values has developed whereby single-country studies are considered inferior to general explanations that can be applied across national and regional boundaries. As a result, specialized local knowledge is undervalued in comparative politics. Yet it is equally difficult to dispute Baines’ and Rubio-Marin’s statement that constructing feminist theory and strategy requires the contributions of the scholars who accepted their invitation to “think in a gendered way” (p.5) about [*228] constitutional jurisprudence in the countries they studied.

The more we know and the more countries we know about, the more difficult it becomes to develop cross-national theory. Differences threaten to overwhelm similarities. The countries included here are alike enough to make comparison justifiable and distinctive enough to make comparison interesting. All these countries have written constitutions except Israel, whose Basic Laws serve as an equivalent. All are democracies—republics, if you prefer—and all have appellate constitutional courts of final appeal. All are formally committed to gender equality, but a wide gap exists between theory and practice: women are underrepresented legally and under-rewarded economically. Although “we are not entirely without constitutional agency” (p.1)—women make constitutional claims, argue cases, legislate, and have served on supreme courts in all twelve countries, voted on Australia’s constitution in 1901, and participated in constituent assemblies in Colombia (1991) and South Africa (1993)--women act within legal systems designed by and for men.

The countries represented here include three Anglo-American jurisdictions (Australia, Canada, and the US), two South American (Columbia and Costa Rica), three European countries (France, Germany, and Spain), and four that are sui generis (India, Israel, South Africa, and Turkey.) These countries’ economic systems occupy various points on a spectrum from capitalism to socialism. Five of these nations are former British possessions. Three are predominantly Roman Catholic, one Jewish, and one Islamic; relationships between religion and the state vary from Israel’s Jewish identity to India’s religious federalism to Turkey’s secularism. The existence of a woman’s right to wear Islamic dress is a constitutional no-brainer in both the US (yes) and Turkey (no); whereas in France it is a matter of legal as well as political controversy. This list could go on indefinitely. The only way to find out whether comparative analysis is fruitful is to plunge in and look for commonalities.

This is what Baines and Rubio-Marin proceed to do, and they do not disappoint. They identify three constitutional equality doctrines that recur in some or all of the articles. The first two, formal equality and separate but equal “rely on the Aristotelian notion of treating alikes alike, and unlikes unlike. Accordingly both focus on the relevant differences and similarities . . . between men and women as groups” (p.13.) This is familiar ground to the student of American constitutional law. Justice Ruth Bader Ginsburg’s opinion in U.S. v. VIRGINIA contains both a powerful statement of the first doctrine and a rejection of the second as a contradiction in terms, like its racial counterpart. In Canada, however, a unilateral “separate but equal” doctrine persists; courts have ruled that the Charter of Rights and Freedoms requires men’s athletic teams to be open to women, but not vice versa.

But equality jurisprudence does not stop with these two doctrines. “Substantive equality” seeks not to classify women in contrast to men, but “to identify patterns of subordination and suppression of women as a group by men as a group on the understanding that most sex discrimination originates with the long [*229] history of women’s inequality in almost every area of life rather than inhering in sex as a conceptual category” (pp.13-14). In this view, discrimination is the symptom, not the disease; the difficulty with formal equality is not that it is based on erroneous notions of similarity between the sexes, but that it does not go far enough to cure the disease.

All three equality doctrines are vulnerable to the criticism that “the ‘benefits’ or ‘advantages’ [they try] to extend to women rely on traditionally male definitions of the good life” (p.14). Yet many feminists mistrust traditionally female definitions of the good life as traps, and it is possible that the narrower the status gap between men and women gets, the more the traditional male priorities will appeal to women. American doctrine’s commitment to (or fixation on) formal equality has led to restrictions on autonomy in the guise of protecting differences. MULLER v. OREGON put woman “in a class by herself” because of her childbearing functions. While formal equality has long since won out over special protection, the Supreme Court continues to use reproductive functions as a rationale for deviating from formal equality (MICHAEL M. v. SUPERIOR COURT OF SONOMA COUNTY; NGUYEN v. INS.)

The danger of taking this logic to extremes is illustrated by a ruling upholding the India Divorce Act’s provision that adultery is grounds for divorce only for men because “a woman’s adultery may result in conception” (p.181). Turkey’s constitution mandates gender equality, but the constitutional court upheld a provision of the Turkish Civil Service Code that gave each cabinet ministry the discretion to deny women eligibility for jobs “not suitable for women’s bodies” (p.288). The American constitutionalist may wonder whether equality and protection will prove any more compatible in Turkey than they did in the USA.

American law has tended to perceive the relationship between gender equality and women’s reproductive and family roles as adversarial. The controversy over CAL FED v. GUERRA, in which the Supreme Court ruled that state-mandated childbearing leaves did not violate the Pregnancy Discrimination Act, saw feminists arguing on both sides. Yet the United Nations’ Universal Declaration of Human Rights provides both that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as . . . sex” (Article 2) and “motherhood and childhood are entitled to special care and assistance” (Article 25.2). Several constitutions examined in this book operate on a similar premise that equality rights and gender-linked roles are compatible. Colombia’s constitutional court, for example, upheld a law giving social welfare rights to the daughters but not the sons of military officers “given women’s frequent dependency on men” (p.87), but invalidated a provision giving officers’ single daughters preference over married daughters. Germany has found no incompatibility between Article 3’s provision that “men and women shall have equal rights” (p.160) and Article 6’s establishment of a constitutional obligation to protect pregnant women.

THE GENDER OF CONSTIUTIONAL JURISPRUDENCE provides a basis for challenging [*230] the premises of any country’s conception of equality. The demonstration that different nations have developed radically different ideas of what equality entails is welcome, because it indicates that constitutional republics may be able to learn from one another. At the same time, the discovery that a comparative study of gendered constitutional doctrine can provoke a sinking feeling of déjà vu indicates that some lessons may have to be learned again and again.

CASE REFERENCES:

CALIFORNIA FEDERAL SAVINGS AND LOAN ASSOCIATION v. GUERRA, 479 U.S. 572 (1987).

MICHAEL M. v. SUPERIOR COURT OF SONOMY COUNTY, 450 U.S. 464 (1981).

MULLER v. OREGON, 208 U. S. 412 (1908).

NGUYEN v. IMMIGRATION AND NATURALIZATION SERVICE, 553 U.S. 53 (2001).

UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).



© Copyright 2005 by the author, Judith A. Baer.

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DEFENDANT RIGHTS

by Hamid R. Kusha. Santa Barbara, CA: ABC-CLIO, Inc., 2004. 250pp. Hardcover. $50.00. ISBN 1057607-935-X.

Reviewed by Paul J. Weber, University of Louisville, Louisville, Ky. Email: paulweber@louisville.edu .

pp.225-226

DEFENDANT RIGHTS is a reference handbook that is part of the Contemporary World Issues Series published by ABC-CLIO. Other titles in the series are ANTISEMITISM, CIVIL LIBERTIES IN AMERICA, COUNTERTERRORISM, CYBERCRIME, DRUG USE, GLOBAL AIDS CRISIS, HEALTHCAREREFORM IN AMERICA, MEDIA AND AMERICAN COURTS, NATION-BUILDING, PROFILING AND CRIMINAL JUSTICE IN AMERICA, VOTING IN AMERICA, USA PATRIOT ACT, and WORLD POVERTY. Like the other books in the series, DEFENDANT RIGHTS is designed to provide an historical overview of the topic, contemporary issues and controversies, and a ready reference to major cases people and documents.

The organization of this book is a bit odd, but probably suited for its intended audience, Americans who are not trained in the law. The first chapter provides a history of defendant rights in the United States organized around constitutional amendments four through eight. Chapter Two then takes the reader through the various controversies inherent in law enforcement—police misconduct, exclusionary rules, actual versus legal guilt, beyond a reasonable doubt, burden of proof, prosecutorial discretion, and victim rights.

Chapter Three provides a longer chronology, beginning with the Dooms Law Era, from 560 to 975c.e. through the post-9/ll era. Chapter Four proved to be the most interesting to this reviewer. It provides a world perspective on defendant rights, beginning with the ancient Middle Eastern legal traditions and going through the Greco-Roman legal system and British Common Law. The second half of this chapter is devoted to explaining the Islamic Legal Tradition, and goes well beyond defendant rights to provide an overview of the entire Islamic set of principles. The chapter ends with a brief review of the commonalities and differences among the four legal traditions.

Chapter Five is an amalgam of key people, cases and terms arranged alphabetically. This seems, at best, to be an uneven collection. For example, MIRANDA v. ARIZONA (1966) gets four lines of explanation, while NIX v. WILLIAMS (1984) merits two pages. Most scholars would consider MIRANDA to be a far more important case. Chapters Six through Eight provide some short documents but are mostly valuable for their discussion of various administrative offices that deal with aspects of defendant rights, as well as providing some data and information on where to find more extensive data. Chapter Nine will be valuable for high school and college teachers looking for teaching resources. [*226]

This book does what it was designed to do: provide a non-technical overview of the topic of defendant rights. It will not be of much use to scholars in this field, but it will be a valuable resource for students doing research and looking for a quick overview of the subject. The section on Islamic law does provide one of the best popular summaries I have seen on that topic.

CASE REFERENCES:

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

NIX v. WILLIAMS (1984).



© Copyright 2005 by the author, Paul J. Weber.

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THE TWO RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT

by Richard M. Valelly. Chicago: University of Chicago Press, 2004. 348pp. Cloth $58.00. ISBN: 0-226-84528-1. Paper $22.50. ISBN: 0-226-84530-3.

Reviewed by Emery G. Lee III, Department of Political Science, Case Western Reserve University.

pp.221-224

Richard Valelly’s TWO RECONSTRUCTIONS recounts how African Americans in the southern United States were enfranchised during post-Civil War Reconstruction, subsequently disenfranchised, then re-enfranchised in the civil rights era of the 1950s and 1960s—the second reconstruction of the book’s title. In the Preface, Valelly frames these two reconstructions as an historical puzzle or mystery: “No other democracy . . . has ever enfranchised a large group, then disenfranchised it—and then reenfranchised it. Why did the first effort fail? Why has the second succeeded” (p.ix)? The central argument of the book is that an “extended comparison” of these two reconstructions can shed light on the crucial role of institutions, especially political parties and the courts, in the historical development of the American political order. Specifically, Valelly argues that the first Reconstruction failed but the second succeeded because of the differing institutional contexts of the two events, and not primarily because of changing white racial attitudes, the economic resources of African Americans, or the changing international (i.e., Cold War) context.

What is particularly commendable about this book is the way in which its author weaves these alternative explanations into his institutional narrative. Valelly does not reject competing explanations. Rather, he assimilates them into his own well-constructed and comprehensive account. For example, the key institutional problem of the first Reconstruction, and the leading cause of its failure, Valelly tells us, was “crash party building.” The new biracial Republican coalition faced the daunting prospect of creating new party organizations in the southern states, “where the Republican Party had of course never existed” (p.17). In the second reconstruction, a different biracial coalition faced the less daunting task of merely wresting control of the southern Democratic Party from the white supremacists and their allies. It is not clear exactly why, in purely institutional terms, taking over control of an existing party is any less difficult than starting entirely from scratch. Indeed, the former seems less difficult in the abstract because it enables political entrepreneurs to evade opposition elements rather than take them head-on. The problem of the first Reconstruction’s biracial coalition was not purely institutional, however. The greatest obstacle to crash party building in the South was “the white-on-black violence that racked southern electoral politics” (p.91). Valelly does not ignore white supremacy and racial violence but instead subsumes it within his [*222] institutional narrative. Thus, he writes that this “political violence shattered families and communities and stunted the development of a robust associationalism in the South that could aid party-building” (p.92).

A major strength of this institutional analysis lies in the identification of incentives to political actors outside the South to recruit southern African Americans into the party system. Valelly observes that, as a regional party, the Reconstruction Republicans needed southern allies for much of the late nineteenth century; national Republican efforts to protect the southern biracial coalition were sometimes motivated by particular political needs, such as tariff legislation in 1881. The admission of predominantly white western states with Republican leanings throughout the second half of the century changed the incentives of the national party. Because it no longer needed a largely African American southern wing, the Republican Party “abandoned them in about 1898” (p.139). Before and during the second Reconstruction, another group of non-southern political actors sought “coalitional expansion” through assisting on-going efforts to enfranchise southern African Americans. In the 1960s the Kennedy administration and its allies “needed help from African Americans in order to achieve a major goal: manage U.S.-Soviet relations competently” (p.184). Thus, again, Valelly subsumes a potentially competing explanation for the success of the second reconstruction, the international context of the Cold War, into his overarching institutional account.

The chapters on the second reconstruction, detailing efforts of both the national Democratic Party and the civil rights movement in the South, are well-argued and well-documented. In perhaps the book’s most thought-provoking passage, Valelly suggests that the 1965 Voting Rights Act was not the historical inevitability that it may seem today. He writes that the Selma protest “that did so much to empower [President] Johnson to procure the act [possibly] came at the last possible moment. Race riots in August 1965 and public alarm about such organizations as the Black Panthers crystallized a long-building northern white backlash. . . . The Voting Rights Act would have been less likely after the spring and summer of 1965” (p.194). This remarkable passage illustrates this book’s greatest strength, namely, its willingness to interpret history without the benefit of 20/20 hindsight.

The courts, especially the Supreme Court, play a largely secondary role in this historical and institutional narrative. That role will be familiar to judicial scholars. The election statutes and constitutional amendments that party builders generated had to be interpreted in the courts, with the first Supreme Court test determining, to a great extent, how successful these efforts ultimately would be. Valelly’s basic jurisprudential point is that a Court majority in the 1870s “declined to actively protect black electoral inclusion” (p.119) but that majorities of the Warren and Burger Courts took “a stance quite different” (p.203) during the second reconstruction. In this account focused on coalition-building, the Court’s role is largely limited to determining which coalition—the biracial coalition or its all-white counterpart—it will favor. These initial signals from the Court either facilitate [*223] party-building or foster conditions on the ground hostile to the biracial coalition.

Although the emphasis of the book is on party-building, Valelly provides an interesting discussion of what he calls “Reconstruction constitutionalism” (p.105) in Chapter 5. The key jurisprudential problem for the biracial coalition in the South was legal uncertainty regarding the federal government’s power to protect voting rights. Given Southern white resistance to African American suffrage, the biracial coalition’s only hope for success rested on a broad reading of that power. In the wake of the ratification of the Fifteenth Amendment, Congress enacted the Enforcement Act of May 31, 1870, and the Ku Klux Klan Act of March 28, 1871. In the end, court challenges to the constitutionality of these statutes were largely successful, in turn undermining the prospects of the biracial coalition in the South. The issue in the cases was whether voting rights were national rights, which could be protected by the federal government, or rights created by action of state law. Valelly very briefly discusses the effect of the SLAUGHTER-HOUSE CASES (1873), with their rejection of a broad reading of national rights under the first section of the Fourteenth Amendment, on the question of voting rights. He then considers the major test cases involving the Enforcement Acts, US v. REESE (1876) and US v. CRUIKSHANK (1876). The discussion of the cases is underdeveloped and not completely satisfying; this reader, at least, would have liked much more elaboration on these (and other) civil rights cases. But Valelly’s basic point is that the Waite Court left Reconstruction constitutionalism in an ambiguous condition, which greatly undermined the biracial coalition’s position. That point is ably made.

One additional significant criticism of the book’s approach is warranted. In the first chapter, Valelly states that he will “systematically compar[e] the two reconstructions as if they were two independent cases” (p.7). From a jurisprudential standpoint, however, this is a non-starter. It may be possible, for methodological purposes, to study the party coalitions of the 1950s and 1960s and those of the 1870s as independent cases. But the constitutional and statutory decisions of the mid-twentieth century simply cannot be understood in isolation from those of the 1860s and 1870s. After all, the meaning of the Fourteenth Amendment is still limited by the SLAUGHTER-HOUSE CASES, 130 years later. The best that can be said for Valelly’s decision to treat the time periods as independent cases is that he tends to ignore it when appropriate, most notably on legal issues. For example, in discussing civil rights legislation enacted in the District of Columbia in the 1870s, he notes that “it was the basis of the final desegregation of District restaurants” eighty years later (p.74). Valelly also discusses how Attorney General Frank Murphy tasked Department of Justice lawyers with “an exhaustive study” of civil rights statutes passed pursuant to the post-Civil War amendments, an effort that led to landmark Supreme Court decisions such as US v. CLASSIC (1941). The second reconstruction was clearly limited by failure of the first, even when the Court bit the bullet and overruled precedents from the earlier period, as the Warren Court did in BROWN v. BOARD OF EDUCATION [*224] (1954) with PLESSY v. FERGUSON (1896).

In sum, THE TWO RECONSTRUCTIONS makes a valuable contribution to the literature on American political development and the Reconstruction era that should be of some interest to judicial scholars, especially those interested in supplementing their knowledge of the non-judicial aspects of the first Reconstruction.

CASE REFERENCES:

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

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

SLAUGHTER-HOUSE CASES, 83 U.S. (16 Wall.) 36 (1873).

UNITED STATES v. CLASSIC, 313 U.S. 299 (1941).

UNITED STATES v. CRUIKSHANK, 92 U.S. 542 (1876).

UNITED STATES v. REESE, 92 U.S. 214 (1876).



© Copyright 2005 by the author, Emery G. Lee III.

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PRIVATE LIVES; FAMILIES, INDIVIDUALS, AND THE LAW

by Lawrence M. Friedman. Cambridge: Harvard University Press, 2004. 240pp. Hardcover. $27.95. ISBN: 0-674-01562-2.

Reviewed by Patricia McGee Crotty, Department of Political Science, East Stroudsburg University. Email: pcrotty@po-box.esu.edu

pp.219-220

This is an amazing book. In fewer than 190 pages, Lawrence Friedman traces the history of family law in the United States, illustrates how this law has changed its focus from the family unit to the individual, and emphasizes how cultural settings shape family relationships in the United States as well as in other nations.

Friedman’s theme is that the needs of the individual usually predominate in family conflicts. He aptly illustrates how this transformation is reflected in legal practices. His first chapter introduces the concepts of “expressive individualism,” “the optional family,” and “the negotiated family” (pp.7-8). Throughout the text, Friedman outlines how the concept of what constitutes a family has become more elastic and how family law has adjusted to keep pace with social realities.

By tracing the history of both marriage and divorce since the nineteenth century, the second and third chapters emphasize how lifestyle choices have transformed the family’s legal shape, from the ideal of social unity that led to such negative legal practices as coverture and collusions over divorces, to a contractual relationship where individual interests predominate. When tracing this history, Friedman observes how the need to maintain control over property has frequently determined the legal precedents used in family law conflicts.

Individual liberty can be more appealing than unity interests even within the family. Modern attempts to reverse this trend, like covenant marriages, appear destined to fail. Friedman believes that individuals should have the right to customize their relationships through domestic partnerships and civil unions and that individual commitment is key to longevity. However, the legal difficulties individuals face when trying to formalize or end unions make it clear that marriage and divorce are still contracts that involve three parties – two individuals and the state, and it is the state that makes the rules.

The family has also been transformed by new reproductive technologies and by changes in adoption laws. Chapter Four illustrates this in reviewing the conflicts that can occur between biological and social parenting. Although in daily life, social parenting may be more important, biology usually triumphs in legal decisions that involve custody issues.

In his final chapter, Friedman concludes that family law is beginning to recognize the ideology of social choice. In support of this notion, he traces a series of legal decisions on contraception, abortion, and sodomy and draws on his extensive knowledge of the role that the media [*220] plays in publicizing private lives. He notes that, although most of us want to have our own privacy needs respected, we are voyeuristic when it involves the private lives of others. Privacy entails some important issues and is the one area of this book where brevity does not do the topic justice. Friedman could have devoted more attention to privacy’s nebulous legal standing and the role that it has played in veiling much of the physical and psychological abuse that takes place in the family and in the home.

I am pleased that I took Friedman’s “voyage of the family from status to contract, from rigidity to flexibility, from compulsion to choice” (p.179). It is an enjoyable and easy read. I do believe, however, that its lack of technical sophistication makes it more appropriate for the general reader or for sociologists than for students of law and politics.



© Copyright 2005 by the author, Patricia McGee Crotty.

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RACIAL CULTURE: A CRITIQUE

by Richard T. Ford. Princeton: Princeton University Press, 2004. 248 pp. Cloth. $27.95 / £17.95. ISBN: 0-691-11960-0.

Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff@jsums.edu.

pp.215-218

Over the last thirty years, critical race and gender theorists have questioned whether and if law can protect difference in a meaningful way, especially in the workplace. Richard T. Ford, a law professor at Stanford University, provides an interesting critique of the resulting “multicultural assumptions of difference” in his book RACIAL CULTURE. While he recognizes most refutations of these approaches come from conservatives with a political agenda of legal colorblindness, Ford explicitly asserts he shares the political and social goals of the progressive left. More specifically, he refutes colorblindness as a means of equality (see BROWN et al. 2003 for an articulation of this position). Ford argues that racial identity politics have the liability of undermining their stated objective of eliminating racism in the workplace. The author is clear; his opposition to discrimination based on status does not mean that one is not ambivalent about the development of a new legal category of discrimination based on culture. His overarching concern is that “race,” which is socially and economically constructed, is given additional legitimacy by the assumption that every race manifests cultural similarities and that these cultural artifacts should be protected in the same manner as racism:


Even if one believes that the races are distinguished by cultural differences, one needn’t advance an inevitably oversimplified account of such distinctive racial cultures; we can acknowledge the salience of race in order in resist racial status without a substantive cultural account of group difference (pp.92-93).

This book is eminently readable, although much of the legal theory with which Ford wrestles is less accessible. To demonstrate his points, Ford relies upon many of the same lower court cases that are also the analytical focus of those to whom he refers as “right to difference” legal scholars. These cases, which Ford evaluates from both his and the “right to difference” perspectives, clarify his concerns and bolster his analysis. Two examples in particular are relied upon throughout the book. The first tells the story of Renee Rogers who worked for American Airlines in the late 1970s and preferred to wear her hair in braids. As an African-American woman, she believed her braids reflected her heritage and that it “has been, historically, a fashion and style adopted by Black American women, reflective of cultural, historical essence of the Black woman in American society” (RENEE ROGERS v. AMERICAN AIRLINES, at 229). Rogers claimed that because the braids were an expression of her racial identity, her firing based upon hairstyle was a violation of her legal rights to her culture. In the second case, Spun Steak employed thirty-three workers, of whom [*216] 24 were Spanish-speaking. Almost all of the Spanish-speaking employees were Hispanic. In September 1990, the company adopted a policy requiring that only English be spoken during work hours and allowing the employees to speak Spanish during breaks. A lawsuit was filed alleging that the new policy violated Title VII by disparately impacting Hispanic workers without an articulated legitimate business justification (GARCIA v. SPUN STEAK).

Ford argues throughout the book that, while the “right to difference” scholars have adopted such issues (hair style and language, among others) as representing the next phase of racial discrimination law, the cases demonstrate the pitfalls of that approach. The right to difference movement argues that behavioral characteristics like language and fashion are surrogates for race, and, if racial discrimination is illegal and actionable, bigots will simply shift the basis for their discrimination:


And in order to capture more subtle cases of discrimination, the law must also prohibit or at least scrutinize discrimination on other bases that might be used as proxies for racial status. But then aren’t racially correlated traits—racial cultures—all potentially proxies for racial status? Yes, and when we have reason to believe they are intentionally used as proxies, discrimination based on them should be illegal. But, because the essence of the employment relationship is that employees are expected to conform their behavior to the demands of their employers, it is reasonable to exclude discrimination based on volitional behavior as a general manner and limit the legal protection to characteristics that are not within the control of the potential employee (p.101).

Ford believes that this protection of culture will lead to greater racial discrimination, albeit mostly within the protected community. For example, if braids become a proxy for African-American women’s race, what happens to Black women who chose not to wear braids or women of other ethnic groups who do? Should the legal process determine what it means to be Black? White? Latino? Asian? For Ford, it is likely that the discrimination against braids was a racist policy. Consequently, he argues that there is adequate protection under Title VII, as currently interpreted, to challenge this illegal action in the workplace. As Spun Steak demonstrates, “right to difference” litigation contains the danger of an increased hostility towards other racial groups. In this example, the employer’s rationale for the policy was to prevent harassment of non-Spanish speaking racial minorities employed by the company; in particular, one African-American and one Asian-American claimed that other employees were making racially derogatory comments about them in Spanish. The company passed the policy to ensure a non-hostile working environment for all employees. According to Ford, the proper solution to these inevitable conflicts is simple:

[A]nti-discrimination law should be refined so as to recognize only those differences attributable to the production of formal status hierarchy, for the purpose of eliminating or reducing the ill-effects of such hierarchies. Difference discourse, by metastasizing status into a thick social identity, distracts from and confuses the vital task of correcting status hierarchy. Legal decision [*217] makers need to be aware of status differences and castelike social practices in order to correct the injustices that they do. But we should resist the temptation to write a speculative sociology of group difference into law or to enlist the state into a psychotherapeutic quest to validated “repressed” identities (p.123).
Finally, Ford is concerned that in privileging racial culture we foster an environment of conflict and competition, without a thoughtful analysis of which cultures are most worthy of protecting. His assumption is that racial integration should be a dominant goal of society, with members of racial groups selecting for themselves which aspects of their culture are most worthy of preserving. Many readers may agree with aspects of his legal argument, without completely accepting his rejection of identity politics as “provincialism.” Ford offers instead a vision of “cosmopolitanism” in which “minority cultural practices will survive without legal protection, albeit often in an altered, fragmented and recombined form, and that such survival in an admittedly Hobbesian social competition is preferable to the distorted and blinkered version of group difference we should expect cultural rights to produce” (p.170).

While Ford’s analysis is wide-ranging, well-written, and fascinating, there are several limitations to his argument. His own assumptions regarding employment discrimination law are disturbing. His reliance on current employment discrimination law as the best means for redressing racism ignores several factors that the “difference” discourse has revealed. One factor is the gap for women of color within the protections of Title VII. To demonstrate racial discrimination, women of color must show that others of their race were treated similarly, but if those similarly-situated are men, the discrimination may not be evident. To demonstrate gender discrimination, women of color must show that others of their gender were treated similarly, but if white women are those who are similarly-situated, such discrimination may not be apparent. Contemporary Title VII jurisprudence frequently does not allow for interactions between race and gender that are unique to women of color. The formal equality required by Title VII is limited in how well it can protect against explicit racism, let alone against the “proxies of race” illustrated by cultural practice.

Another area that requires further development is Ford’s extension of cultural analysis to less comparable areas of employment discrimination law—in particular, sexual preference and gender. His premise that sexual preference should be protected as status, rather than as behavior or culture, ignores the lesser protection granted sexual preference under the law compared to racial discrimination. Ford does not address the unanswered question within the law of whether sexual preference is behavior or immutable characteristic. The current judicial acceptance of lower levels of scrutiny to protect sexual preference in the workplace means that a simple reliance on current employment discrimination law will not render the results he professes are necessary.

Finally, his equivalence of gender discrimination to race is disappointing, especially in the area of pregnancy. While the right to difference literature [*218] builds on a century of analysis by feminist scholars, there are clear differences between the two. However, Ford perceives pregnancy as a form of gender culture, as braids or language can be for race. But this analogy does not work. Discrimination against pregnancy is not justified by employers solely on the basis of predicted workplace impacts of the actual pregnancy, but also because women have the potential to become pregnant. Since pregnancy is a biological reality, how can it be simply another cultural manifestation or behavior choice? A second difference is that, unlike forms of racial or ethnic culture, Congress revised Title VII to incorporate pregnancy into the definition of gender discrimination.

Richard T. Ford’s analysis of the limitations of the difference discourse to racial protections is worth reading and considering. His critique of the “right to difference” literature requires a response from those scholars. This book promises a necessary debate within the legal left as to the best methods for challenging the continued manifestations of racial discrimination within the workplace, simultaneously ensuring a more equitable future.

REFERENCES:

Brown, Michael K., Martin Carnoy, Elliott Currie, Troy Duster, David B. Oppenheimer, Marjorie M. Schultz, and David Wellman. 2003. WHITE-WASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY. Berkley, California: University of California Press.

CASE REFERENCES:

GARCIA v. SPUN STEAK, 998 F. 2d 1480 (1993).

RENEE ROGERS v. AMERICAN AIRLINES, INC., 527 F. SUPP. 229 (1981)



© Copyright 2005 by the author, Michelle D. Deardorff.

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THE LAW AS IT COULD BE

by Owen Fiss. New York: New York University Press, 2003. 320pp. Cloth. $60.00. ISBN: 0814727255. Paper. $21.00. ISBN: 0814727263.

Reviewed by Dennis J. Coyle, Department of Politics, Catholic University of America. Email: coyle@law.edu .

pp.211-214

Politics, it has been said, is the authoritative allocation of values. For Owen Fiss, those “public values” are embedded in the law, and it is the job of the judge to discover and apply them, undeterred by the controversy and difficulties that might ensue. In THE LAW AS IT COULD BE, we see the law as it was and, to Fiss, should be again. His is a vision of law at the zenith of the civil rights movement, buttressed by an earlier common law faith in the capacity and legitimacy of the independent judge. His faith arose from the ashes of the law left by the Legal Realists and CAROLENE PRODUCTS-brethren of the New Deal, as Progressives began to look to the courts to achieve social change long denied by the legislatures in which they had previously placed their hopes. And, it is a faith unsullied today by postmodern skepticism or the sounds of populist democracy emanating from left and right. To read Fiss is to return to judicial activism before the fall, when the transformative power of law was intoxicating to student and scholar alike. This spirit lives on in lawsuit and classroom, of course, but it is more difficult to sustain in the face of a counterrevolution in the courts, bitterly divided confirmation battles, and the costs, countersuits and unfulfilled aspirations that are part of the legacy left by the large “structural reform” cases favored by Fiss. THE LAW AS IT COULD BE should be a provocative book for anyone following the law, but it may be especially welcomed by those wearied by a constant stream of political attacks on judicial activism. Fiss states his case boldly and repeatedly, without apology.

Fiss is refreshingly straightforward about the task he sets for the judge – giving meaning to the sweeping public values, especially equality, he finds embedded in the law. He asserts that in an era dominated by large bureaucratic organizations the courts must restructure those institutions in line with fundamental values. This is similar to the argument made by the Progressives for the transformation of liberalism from a doctrine of limited government to one of larger, activist government to counter the inordinate power of corporations. But Fiss does not share the naive or disingenuous Progressive expectation that enlightened government administrators will naturally further the public good. Rather he sees government institutions, such as prisons and hospitals, as the major target of structural reform suits. Such litigation thrusts the judge into the details of program administration and can entail complex and intrusive remedies. He recognizes that such an authoritative role for the courts, often contrary to elected institutions or their appointees, will be controversial and problematic, but does not shy away from it. That is a refreshing change from the insecurities [*212] of activism advocates who hide their doubts in tortured claims of judicial democracy.

The defining moment of Fiss’s judicial vision was BROWN v. BOARD OF EDUCATION. He recognizes the difficulties courts subsequently faced in designing and implementing effective remedies but emphasizes that, were it not for the insistence of the Supreme Court in giving real-world meaning to the abstract constitutional value of equality, the eradication of segregation, and of the Jim Crow system more generally, would have been more tentative and incomplete. BROWN is the high water mark of judicial activism, earning unanimous support in the Court and nearly universal support among legal scholars and historians, modest caveats about reasoning and remedies aside. Since then, the grand consensus about the positive role of courts in social change has fractured, eroded by controversies over busing, affirmative action, redistricting, and so on. For Fiss, BROWN is only the beginning, and he devotes most of the book – a collection of papers written over a 25-year period – to defending large structural reform and class action suits.

The long first chapter of the book, “The Forms of Justice,” was originally published as the foreward to the 1979 Supreme Court issue of the HARVARD LAW REVIEW, and is the anchor for everything that follows. It is here that Fiss first lays out his defense of the “structural reform” lawsuit, and especially injunctive relief, to transform bureaucratic public institutions. In succeeding chapters he roots his jurisprudential vision in a conception of society dominated by large bureaucracies and dismisses an older individualist conception that would limit courts to dispute resolution. He defends his faith in normatively driven judge-made law against skeptics on the left and right, including law and economics, critical legal studies, and especially Stanley Fish.

Fiss closes with a defense of reason in law against emotion, then a critique of BUSH v. GORE, and a brief afterword. With the possible exception of the penultimate chapter, this collection of essays hangs together surprisingly well, as Fiss is consistent and persistent in developing his arguments for activism. The chapter on BUSH v. GORE might more appropriately serve as the introduction to a new work, rather than the conclusion of this one, because it raises more issues than it resolves, especially in a book that celebrates rather than savages the courts. For as Fiss quotes Sandy Levinson, BUSH v. GORE triggered “the deepest intellectual crisis—at least for people who profess to take law seriously—in decades” (p.233). In other words, BUSH occasions a profound rethinking of the role of courts and law, rather than an epilogue. Given that Fiss has devoted an entire book to defending an activist judiciary, the implications of making an exception for BUSH merit more attention.

Many readers will find Fiss inspiring, as he presents a thoughtful defense of liberal activism, similar to the way that John Rawls provided a philosophical rationale for the welfare state in liberal terms, easing uneasiness about whether Progressives could love the state and freedom too. But Fiss weakens his argument by overstating his case—an occupational hazard of lawyers. He [*213] exaggerates the bureaucratic character of modern life, the universality of his constitutional vision, the potential to achieve those values, the insignificance of unanticipated consequences and competing values, the disciplining effect of the interpretive community, and the sagacity of judges.

Fiss’s prescriptions for the role of law follow from his understanding of the world as increasingly and inevitably bureaucratized. He dismisses an older model of adjudication as the settling of disputes between individuals as “rooted in a world that no longer exists. . . . [T]he market has been replaced by the hierarchy, the individual entrepreneur by the bureau. . . . Almost every phase of American life has come to be dominated by large-scale, complex organizations” (pp.37, 67). This rationale for activism mirrors the argument put forward in the 1960s by then-current and future California Supreme Court justices, Matthew Tobriner and Joseph Grodin, that in “a complex, interdependent society” the individual is increasingly regulated and consequently judges are obligated to “impose duties and obligations on the basis of status or relationship” (1967, at p.1249). Courts should search “for what is true, right or just,” writes Fiss, and then “confront the betrayal of our deepest ideals and be prepared to turn the world upside down to bring those ideals to fruition” (pp.8, 102). In these post-modern days of division and doubt, Fiss is almost breathtaking in his sweep and certainty. But his description of the world seems overstated in an era of instantaneous communication and rapid transportation, of job jumping and spouse switching. Fiss’s argument outruns his evidence but should not detract from his more modest and plausible contention that officials in institutions such as schools, hospitals and prisons that house and constrain persons cannot be trusted to fully protect their rights and interests.

For Fiss, the deepest of our public ideals is equality, which replaced liberty “as the central constitutional value” in the 1960s (p.151), and he portrays the ascendance of equality as virtually universal and uncontested, at least in the legal community. All that remains in question is the ability to “construct a new social reality” (p.54), not its rightness. But the Constitution embeds many principles and values, such as limited government, federalism, liberty and equality, which may conflict, and so the legitimacy of egalitarian activism will always be contentious. On this point Robert Cover seems more candid. Fiss, he writes, “supposes that these achievements [of institutional transformation] emerge out of a shared community of interpretation. . . . I support those efforts because . . . I am sufficiently committed to them to join with others in imposing our will on those who disagree” (p.92). The reality of value conflict weakens the case for the effectiveness of the interpretive community of judges and scholars as a sufficient constraint upon judge-made law, as agreement may be mistaken for proof. Conservative readers, for example, may find ironic the lamenting over BUSH v. GORE, as if that were the first time the Court had eroded its legitimacy by making a contentious ruling of wide import based on debatable constitutional reasoning. Evidently Fiss does not read FIRST THINGS.

Fiss writes in the spirit of John Marshall, sweeping the reader along with vigorous [*214] argumentation. And like Marshall he largely succeeds, although his overgeneralizations cannot expunge the seeds of doubt and counterargument. It is nonetheless refreshing to read a vigorous defense of the law. I fear that in these days of postmodernism on the left, faux-democracy on the right and rational choice cynicism in the center, we are undermining the legitimacy of the courts by claims that law is only politics carried on by other means. Fiss unapologetically makes the case that law is different and that judges can rise above interest in the pursuit of legal values, a task that other institutions are structurally unsuited to fulfill. The case for law has been undermined by a century of attacks and counter-reactions to activist rulings. Fiss reminds us of the imperfect but significant normative constraints that operate upon judges, particularly the need to deliberate upon and articulate reasons that will be critiqued by the interpretive community. The application of values and principles is never precise, and the interpretive community is never entirely objective or omniscient; thus, this constraint is never perfect, and the resulting ambiguity of interpretation breeds skepticism on left and right. But ambiguity does not disable constraint, and Fiss aptly decries the corrosive cynicism of the critical legal theorists.

While the vulnerability of the “crits” is that they exaggerate indeterminacy, Fiss exaggerates determinacy, overstating the certainty of his constitutional vision. The reality falls somewhere in between. Judge-made law is an imperfect but indispensable element of liberal constitutionalism, and it is a mistake to see courts as the enemy of freedom or even democracy. A court is constrained in ways that politics is not; this is obvious to any judge, and too often cavalierly dismissed by critics and scholars. In the hyper-democracy of today, where value disputes are often reduced to politics and public opinion, we are in danger of eroding appreciation of the most fundamental element of a stable polity—not democracy, not even equality, but the rule of law itself. The role of the judge in that is essential, and Fiss helps remind us of that.

REFERENCE:

Tobriner, Matthew O. and Joseph R. Grodin. 1967. “The Individual and the Public Service Enterprise in the New Industrial State.” 55 CALIFORNIA LAW REVIEW 1247-1268.

CASE REFERENCES:

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

BUSH v. GORE, 531 U.S. 98 (2000).

UNITED STATES v. CAROLENE PRODUCTS, 304 U.S. 144 (1938).



© Copyright 2005 by the author, Dennis J. Coyle.

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GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW

by Theresa M. Beiner. New York: New York University Press, 2005. 288pp. Cloth $45.00. ISBN: 0-8147-9917-5.

Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer@fsc.edu .

pp.208-210

This book, by Theresa M. Beiner, Professor of Law at the University of Arkansas at Little Rock, is a unique and fascinating look at how sexual harassment law is construed (or perhaps misconstrued) in the American Legal system. Beiner starts from the perspective that courts all too often confront vague legal standards with little guidance in attempting to define sexual harassment. As a result, courts often impose their own views and/or stereotypes regarding the role and behavior of women in the workplace. The goal of the author is to fill this void by demonstrating that social science data show that there is considerable agreement as to what constitutes sexual harassment. Accordingly, if courts were to rely on such data, they could become more consistent and apply the law more equitably. GENDER MYTHS v. WORKING REALITIES is an innovative and fresh approach to a complex problem. The concept for the book is both fascinating and intriguing, and in some sections Beiner’s approach is an unqualified success. However, in the end, the limits of research, as well as the reality of inconsistent legal definitions of the term, ultimately outweigh the usefulness of social science data in many areas of sexual harassment law.

The “Introduction” traces the beginnings of sexual harassment law. It is interesting to note that the treatment of sexual harassment law is unique—the law led “the way to reform before social scientists have defined the particular human behavior that warrants legal attention” (p.3). As a result of the courts’ getting ahead of scholars, many defaulted to assumptions or stereotyped expectations of typical behavior among women in the workplace. Social science data, Beiner concludes, have proven these assumptions wrong in many instances. While recognizing the challenges associated with adapting social science data to this end (including methodological hurdles, time “sensitivity” of some data, the populations studied, and research terminology and definitions), the author contends that social science could be very useful to a judge or jury in some instances. When, for example, a judge or jury must decide whether a reasonable person would find a specific behavior to be harassing, social science research showing consistent results would be quite useful.

The book is then divided into seven chapters, each looking at specific areas of sexual harassment law and how social science data could be used in this area. Chapter one deals with determining when something is “sufficiently severe or pervasive” enough to constitute sexual harassment. One of the great difficulties regarding sexual harassment [*209] law is finding a consistent understanding of what is actionable. Using survey data and focus group research, Beiner is able to show that social science does provide a great deal of information about what people perceive as sexual harassment, and it is quite consistent. Moreover, Beiner observes that, because the Supreme Court has relied upon the “reasonable person” to apply the standard, social science studies can be used to demonstrate what reasonable people do, in fact, perceive as harassing.

Chapter Two looks at the reasonable woman standard. There has been much debate in the courts for years regarding whether a standard that looks at sexual harassment from the perspective of a reasonable woman is more appropriate than a reasonable person criterion. After reviewing the reasoning that led to this dispute in the various lower courts, the author turns to social science to determine how the research compares with the views expressed in the courts. Interestingly enough, although probably not true twenty years ago, there does not seem to be much difference in the perceptions of men and women today, at least in less ambiguous cases. The research also clearly shows that there is, at a minimum, a growing consensus between men and women about what constitutes sexual harassment. Beiner concludes this section by proposing that “perhaps the real solution to the reasonableness debate is to not include reasonableness in the standard . . . the courts could use perception data as the basis for this determination instead” (p.60).

Chapter Three focuses on defining “unwelcome” in the sexual harassment context. Here, social science research is much less useful than in the prior two chapters, and most studies simply confirm that frequent responses to harassment are to ignore it or react passively. As a result, the data add little that is useful to judges or juries. Beiner does provide a detailed analysis of the issue and suggests several possible approaches, but in terms of using social science data to reformulate sexual harassment law, this chapter falls short. A similar problem exists in Chapter Four examining the meaning of “because of sex” in the interpretation of sexual harassment. While this chapter presents an excellent review of the law regarding such topics as same sex harassment and equal opportunity harassers, social science applicability is quite limited. Much of the research detailed in this chapter consists of law journal opinion pieces, and while interesting and thought provoking, they offer limited guidance to judges and juries looking for clarity. Further, the “practical solution” offered by Beiner is to have courts focus on the circumstances of a given case and apply psychological research on stereotypes. The factors she suggests – e.g., whether the workplace is gender homogeneous, the target is separated from co-workers of the same gender, and whether the occupation is traditionally gendered – are not, of themselves, indicative of sexual harassment. All could be present without proving, or even leading to a presumption of, sex-based discrimination. The final factors (whether the environment is sexualized, and management’s attitude toward sexual harassment) are quite subjective. A problem throughout is that Beiner considers a shifting array of social science from chapter to chapter and subject to subject. [*210]

Chapter Five examines the employer liability standard used by the courts in sexual harassment disputes, and Chapter Six addresses compensation for victims and deterrence of future actions. In each, after reviewing existing precedent and lower court actions, Beiner makes a compelling case for the need for clarity. Again, the types of research considered and their usefulness to the analysis are mixed.

The final chapter, “The New Sexual Harassment Claim,” considers what a claim would look like if the courts relied upon the social science research recommended in the preceding chapters. The author does make a persuasive argument that the law could be clarified considerably and applied more consistently with the proposed approach. Lacking, however, is a design to begin the process of introducing the courts to appropriate and reliable social science. There is also no discussion as to why courts might be receptive to this approach; nor do we find any examples of where such an approach has been tried.

In sum, this book assesses the challenges of sexual harassment from an intriguing perspective. Although I have some reservations regarding the breadth of material categorized as social science research, the book provides fodder for many fruitful discussions, and it could be used in a range of undergraduate or graduate seminars dealing with research methods, civil rights, or equality issues. One does not need to agree with all of the conclusions in order to find utility in the approaches of the different social sciences.



© Copyright 2005 by the author, Paul Weizer.

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THE MINORITY RIGHTS REVOLUTION

by John D. Skrentny. Cambridge: Belknap Press of Harvard University, 2002/2004. 496pp. Hardcover (2002). $35.00 / £22.95. ISBN: 0-674-00899-5. Paper (2004). $18.95 / £12.95. ISBN: 0-674-01618-1.

Reviewed by Jon Goldberg-Hiller, Department of Political Science, University of Hawai’i. Email: hiller@hawaii.edu .

pp.204-207

John Skrentny’s book presents an impressive history and analysis of the transformation of civil rights law that occurred in an explosive decade, 1965-1975. Not only did these years witness the gelling of an anti-discrimination regime responsive to many “minorities” that affected the power of the judiciary and realigned the political parties, but it also inspired much of the law and society movement and the forms of analysis that have defined socio-legal studies ever since. That Skrentny challenges so many of these academic ideas, particularly the assumption that law and rights are mobilized from below, makes this book important for socio-legal scholarship.

Relying on a rich archive of personal letters, official memoranda, interviews with government officials, and contemporary journalism, Skrentny concludes that the rights revolution that occurred in this decade “was characterized more by an anticipatory politics than a participatory one” (p.328).


With the exceptions of the black civil rights movement and to a lesser extent the 1965 immigration reform, policy was not promoted by the networks of federated interest groups [characterizing the] early veterans’ organizations and the women’s movement of the 1920s. To win rights for Latinos, women, American Indians, Asian Americans, and the disabled, nothing like 1932’s “Bonus Army” of poor veterans that occupied Washington demanding extra payments was needed. Neither was this the mass politics of the New Deal Era, such as the one-million-member Townsend movement for old-age pensions or the institutionalized, organized muscle of Big Labor. Nor was it the coordinated, courageous mass movement for basic, classically liberal black civil rights that culminated in 1965. . . . For the groups that policymakers saw as analogous to blacks, mass mobilization, civil disobedience, or rioting were simply not necessary (pp.328-9).

In part, the social movement model fails, he argues, because the federal government had already absorbed several movement leaders who advocated from within. But there were more reasons that help explain why “the revolution took place while no one was watching” (p.249). While this theme of a “silent revolution” is not new to socio-legal analysis (see, for example, Jacob 1988), several dynamics that Skrentny observes are worth evaluating for how they may encourage us to renew and reevaluate our theories about rights.

Although Skrentny avoids the term “governance” and its associated theoretical apparatus, there is much in the story he tells to cause us to think about the ways in which the anticipatory politics of rights resulted from an [*205] attempt at building political power and institutionalizing social control. To some degree, the expansion of rights beyond African Americans resulted from electoral concerns. Nixon’s bumbling attempt to gain the women’s vote (inhibited in part by his incessant need to depict women’s rights in a humorous style designed to play to the men), and Goldwater’s successful insistence that Nixon follow Johnson’s lead and play for Latino support underscore this dynamic. The rights revolution also had aspects of what Gramsci (1971) called a “passive revolution,” or an effort by the state to preempt political mobilization (see also Piven and Cloward 1977). For example, Skrentny shows how Asians and American Indians, despite little pressure from below for inclusion in EEO accounting and only trivial support from EEOC administration, nonetheless remained important to monitoring discrimination for fear that removing them from review “would mobilize these groups and produce a loud outcry” (p.129).

Governance in the theoretical frame of governmentality (see Cooper 1998; Foucault 1991; Rose 1996) can also be seen in the ways Skrentny emphasizes the importance of subjectivity in the construction and regulation of “minorities,” especially the compelling and yet problematic analogy to African American civil rights, and it is here that socio-legal scholars may find the richest trove to mine. The successes of the African American civil rights movement that culminated in the 1964 Civil Rights Act and 1965 Voting Rights Act provide a conceptual model for thinking out legitimate subjects and appropriate remedies for anti-discrimination. This model often motivated administrators to understand the expansion of anti-discrimination machinery as a moral imperative to the extent the “oppressed” seemed similarly situated, thus facilitating disability protections, bilingual education, and many policies for women (despite the awkwardness of the analogy when it came to implementation). The model also limited protections for white, predominantly Catholic “ethnics” whose identities and forms of social discrimination would not easily conform. The black analogy also linked this form of subjectivity to concerns over state security whose genealogy lay in Cold War struggles against a “lawless” Communist enemy eager to exploit and publicize the dismal state of civil rights in the United States. This domestic commitment to civil rights (though not social rights), forged in an effort to publicize a global human rights alternative to the Communist bloc, has recently become an important avenue for thinking out the commitments and limits to a rights regime absent social mobilization in the United States and elsewhere (Dudziak 2000; Johnson 2003; Patton 2002). Skrentny provides interesting detail to further this project.

One irony of the black analogy is that it provided both the cultural impetus for the minority rights revolution as well as its limit, as revealed in the subsequent political revulsion to affirmative action for African Americans and its inelasticity in relation to ethnic whites and sexual minorities. Skrentny does not always make enough of these limits, only hinting at the seeds of a counter-mobilization against the civil rights era that we see around us today. Some women, he notes, opposed women’s rights as antagonistic to femininity, and [*206] gay rights have long been seen as unpalatable where they cannot be assimilated to the black analogy (especially where there is little documentation of discrimination against gays). But, just as the cold war served as a template for the minority rights revolution, the legal integration that emerged in this revolutionary period likely informs counter-mobilization today and deserves more genealogical attention.

One obstruction to this genealogy in Skrentny’s analysis is his willingness to separate what he calls “policy” from symbolism. Framed in this way, it becomes hard to understand the question, “Why rights?” in this decade, and it often limits the scope of the rights revolution to the fuzzy horizon of “unpopularity.” More attention to the cultural dynamics of the black analogy and the ways in which rights created cultural meanings as policy would deepen our understandings of the ironies, paradoxes, and triumphs of the rights revolution (see, e.g., Richards 1999). For example, the administrative universalization of the one-drop rule from segregationist legal definitions of race to emergent categories such as “Hispanic” and “Asian” in this period might also be used to explore the forms that political demands did take (e.g., Brown 1995), or how they created a political quiescence in the language of Murray Edelman (1971) who was ever suspicious of distinguishing political meaning from political “outputs.” Where Skrentny has more success with these categories is in showing the mutual entanglement of judicial and administrative actions.

Another problem with Skrentny’s inattention to counter-mobilization can be found in lost opportunities. Busing, for example, probably did as much to sour many Americans’ taste for the rights revolution as affirmative action, but it plays little role in this book.

Despite these critical remarks, the book is an impressive and important analysis that helps us reevaluate the role of political demand and rights mobilization in the historical production of the rights revolution. Linking the revolution to its counter-revolution today, and the ways in which mobilization by the anti-pluralist right wing has now supplanted that of the liberal pluralist left, is an important task that can find one anchor point in the historical work of this author.

REFERENCES:

Brown, Wendy. 1995. STATES OF INJURY : POWER AND FREEDOM IN LATE MODERNITY. Princeton, N.J.: Princeton University Press.

Cooper, Davina. 1998. GOVERNING OUT OF ORDER: SPACE, LAW, AND THE POLITICS OF BELONGING. London ; New York: Rivers Oram Press; Distributed in the USA by New York University Press.

Dudziak, Mary L. 2000. COLD WAR CIVIL RIGHTS: RACE AND THE IMAGE OF AMERICAN DEMOCRACY. Princeton, N.J.: Princeton University Press.

Edelman, Murray J. 1971. POLITICS AS SYMBOLIC ACTION; MASS AROUSAL AND QUIESCENCE. New York: Academic Press. [*207]

Foucault, Michel. 1991. GOVERNMENTALITY. IN THE FOUCAULT EFFECT: STUDIES IN GOVERNMENTALITY. Graham Burchell, Colin Gordon, and Peter Miller (eds). Chicago: University of Chicago Press.

Gramsci, Antonio. 1971. SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI. New York: International Publishers.

Jacob, Herbert. 1988. SILENT REVOLUTION: THE TRANSFORMATION OF DIVORCE LAW IN THE UNITED STATES. Chicago: University of Chicago Press.

Johnson, David K. 2003. THE LAVENDER SCARE : THE COLD WAR PERSECUTION OF GAYS AND LESBIANS IN THE FEDERAL GOVERNMENT. Chicago: University of Chicago Press.

Patton, Cindy. 2002. “Stealth Bombers of Desire: the Globalization of ‘Alterity’ in Emerging Democracies.” In Arnaldo Cruz-Malavé and Martin Manalansan (eds). QUEER GLOBALIZATIONS: CITIZENSHIP AND THE AFTERLIFE OF COLONIALISM. New York: New York University Press.

Piven, Frances Fox, and Richard Cloward. 1977. POOR PEOPLE’S MOVEMENTS. New York: Vintage Books.

Richards, David. 1999. IDENTITY AND THE CASE FOR GAY RIGHTS: RACE, GENDER, RELIGION AS ANALOGIES. Chicago: University of Chicago Press.

Rose, Nikolas. 1996. “Governing ‘Advanced’ Liberal Democracies.” In Andrew Barry, Thomas Osborne, and Nikolas Rose (eds). FOUCAULT AND POLITICAL REASON: LIBERALISM, NEO-LIBERALISM, AND RATIONALITIES OF GOVERNMENT. Chicago: University of Chicago Press.



© Copyright 2005 by the author, Jon Goldberg-Hiller.

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INTERNATIONALIZED CRIMINAL COURTS AND TRIBUNALS: SIERRA LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA

by Cesare P.R. Romano, Andre Nollkaemper, and Jann K. Kleffner (eds). Oxford, U.K.: Oxford University Press, 2004. 550pp. Hardback. $165.00 / £75.00. ISBN: 0-19-927673-0. Paper. $65.00 / £35.00. ISBN: 0-19-927674-9.

Reviewed by Daniel C. Turack, Capital University Law School. Email: DTurack@law.capital.edu .

pp.200-203

The content of this book deals with the third generation of international criminal law courts to have emerged since 1999. If we designate the post-World War II tribunals – namely, the Nuremberg and Tokyo Tribunals – as the first generation, and the ad hoc International Criminal Tribunal for the former Yugoslavia, the ad hoc International Criminal Tribunal for Rwanda, and the permanent International Criminal Court as the second generation, then the forums considered by this book can be characterized as third generational internationalized (the adjective adopted by the editors) criminal courts. The contributors to this work based their research on three active jurisdictions—the Serious Crimes Panels in the District Court of Dili (East Timor), the “Regulation 64” Panels in the Courts of Kosovo, and the Special Court for Sierra Leone. In addition, the so-called Extraordinary Chambers in the Courts of Cambodia are considered as well.

INTERNATIONALIZED CRIMINAL COURTS AND TRIBUNALS contains an updated assortment of twenty-one papers that emerged from a 2002 conference in Amsterdam. The final paper is a contribution by a non-attendee of that conference whose insightful input enhances the overall excellence of this collection. One should generally commend the editors, Cesare Romano, Andre Nollkaemper, and Jann Kleffner, for their cross-references to chapters by the many contributors that are helpful in identifying specific issues that the reader may wish to consult. Contributors bring expertise as academics, officials and practitioners, to produce a wide-ranging discussion and analysis of these internationalized criminal courts and tribunals (henceforth, I will use the term, internationalized, to encompass the four institutions).

Professor Antonio Cassese provides an excellent introduction in which he (1) compares the ad hoc international tribunals for the former Yugoslavia and Rwanda, the internationalized criminal courts and national criminal courts; (2) explores the reasons behind creation of international criminal courts and the internationalized tribunals; (3) considers some of most conspicuous practical and legal problems encountered by the internationalized tribunals; (4) discusses existing particular situations where further internationalized tribunals could be contemplated; and, (5) assesses the prospects for international criminal justice when national courts or the International Criminal Court (ICC) is not an option. [*201]

In the second chapter, Daphna Shraga examines the different backgrounds and negotiations preceding the establishment of the internationalized tribunals, and why certain crimes were omitted or added to a tribunal’s jurisdiction. Also, there is discussion of the organizational structure of the courts, their relationship to the law of the host jurisdiction, and effectiveness of prior amnesty or pardons granted to principal perpetrators. Clearly, no single model emerges for internationalized jurisdiction.

John Cerone and Clive Baldwin evaluate the competence and overlap of the Kosovo courts with that of the International Criminal Tribunal for the former Yugoslavia (ICTY), highlighting the features that make these courts unique. The Kosovo internationalized courts are examined by Jean-Christian Cady and Nicholas Booth in Chapter Four from the perspective of the UN Mission in Kosovo. These authors conclude that, without an international judicial presence and international police, those responsible for destabilizing society in the province by ethnic violence or organized crime would not be brought to justice, and they credit the international judiciary with mentoring and institution-building of the local justice system.

Sylvia de Bertodano writes about the sad situation in East Timor. The Special Panels for Serious Crimes established in Dili handed down judgments against 31 defendants (35 cases were either pending or in mid-trial), but these perpetrators represented the small fry. The Jakarta trials provided no real measure of justice, as none of the 18 people put on trial were ever jailed. Indonesia’s lack of cooperation met with no meaningful rebuke from the international community. With the UN order for the Dili Special Panels to close down in the near future, most high profile indictments—e.g., former head of the Indonesia’s armed forces, General Wiranto—will never face charges in East Timor. All of the factors that led to ineptness of the East Timor internationalized experiment are addressed in this chapter. On the other hand, a Commission for Reception, Truth and Reconciliation in East Timor (CAVR) was set up as a parallel institution to the internationalized judicial institution, and its objectives, mandate and composition are addressed by Beth S. Lyon in Chapter Six. By and large, the absence of broad CAVR investigatory powers and the lack of incentives to persuade perpetrators of the serious crimes to come forward shielded those at the highest levels of authority immune from accountability.

Alison Smith, in the seventh chapter, explores the Special Court of Sierra Leone. She points to serious flaws in the current system and considers the rules of procedure and evidence as influenced by the International Criminal Tribunal for Rwanda (ICTR). One learns that politics, policy and practical limitations have minimized the role played by the Special Court. Phakiso Mochochoko and Giorgia Tortora (Chapter Eight) provide insight into the innovative Management Committee for the Special Court for Sierra Leone, whose start-up involved representatives from the UN, the Sierra Leone government, and political and financial supporters. They outline how this novel solution may serve as a model for future institutions and could reform existing ones. William A. Schabas, [*202] in the ninth chapter, compares the Truth and Reconciliation Commission (TRC) with the Sierra Leone Special Court, as both are transitional justice options used to address impunity. The author’s perspective on the relationship of the Special Court and the TRC illustrate a modality of cooperation, complementary and non-confrontational roles that should be contemplated in other contexts.

Chapter Ten, by Craig Etcheson, looks at politics involved in dealing with crimes of the Khmer Rouge regime in Cambodia between 1975 and 1979, when at least 2 million people perished during the days of Democratic Kampuchea. None of the Khmer Rouge leadership has been prosecuted, and the roles of various Cambodian political players and international actors are considered. The compromise that finally led to the Extraordinary Chambers in the Courts of Cambodia is discussed by Ernestine E. Meijer in the next chapter. She takes the reader through the last phase of negotiations that produced this hybrid court, and considers all aspects of its jurisdiction, organization and procedures. Moreover, she provides a “worst case scenario” to illustrate possible obstruction of justice—that is, what happens when there is uncertainty as to procedural matters, and what guidelines will ensure a fair trial. Some thought is also given to the unbridgeable differences remaining.

The next nine chapters deal with matters that cut across all four internationalized tribunals. In Chapter Twelve, Cesare P.R. Romano deals with the myriad of matters that concern judges and prosecutors regarding staffing the various tribunals and qualifications for all participants—e.g., nationality, moral integrity, expertise, and gender. Recruitment of personnel directly impacts the quality of each tribunal, and related issues receive attention. Thordis Ingadottir confronts the funding issues in Chapter Thirteen. When compared to the funding provisions for the ICC, ICTY and ICTR, the budget for each of the four internationalized tribunals is markedly low, and an open question is whether their shoestring funding stream will affect the independence of the judiciary.

Bert Swart is concerned with many issues related to application of substantive law in the internationalized tribunals, with an emphasis on East Timor, Sierra Leone and Cambodia. He addresses a range of interesting questions, such as whether some international crimes by treaty have already evolved into crimes under customary international law, and if so, when did this occur. Good examples are torture in East Timor and destruction of cultural property during internal armed conflict in Cambodia. Other provocative discussions concern general principles of criminal law, juveniles, amnesties and pardons, and statutes of limitations. Hakan Friman, in Chapter Fifteen, writes from a human rights lawyer’s viewpoint on the procedural law as applied in these internationalized tribunals. His focus is on fundamental international human rights standards for a fair criminal process as set primarily in the 1966 International Covenant on Civil and Political Rights, as well as standards relating to juveniles, victims, and witnesses.

Jann K. Kleffner and Andre Nollkaemper consider the relationship between internationalized tribunals and [*203] national courts based on six designated questions. Interaction among these courts does not lead to any general principles common to the four former prototypes, but the contributors show that internationalized tribunals have largely been separated and isolated from national courts. However, the former contribute to rebuilding the national judicial system. Goran Sluiter deals with internationalized tribunals’ reliance on external cooperation to accomplish their purposes. Lack of enforcement powers, arrest, transfer of the accused, cooperation in investigations, production of evidence, and extradition, all influence efficiency and effectiveness of operations.

A collaborative effort by Markus Benzing and Morten Bergsmo presents some tentative insights on the relationship between the internationalized tribunals and the ICC from the viewpoint of law and policy. Specifically, they assess efficacy, viability and independence, the impact of internationalized tribunals on the ICC’s aspiration to be a permanent universal institution, and possible future cooperation among institutions. An extension of this analysis is carried forward in the succeeding chapter by Maria Carmen Colitti in her examination of the ICC’s geographical and jurisdictional reach. After all, the Rome Statute does not cover aggression, drug trafficking and terrorism – to mention three other international crimes – and there is room for future internationalized tribunals to fill these ICC gaps. One message left for readers is that, although the ICC targets high-profile individuals, low-ranking suspects could be handled by internationalized tribunals to impose greater accountability. Luigi Condorelli and Theo Boutruche, in Chapter Twenty, reflect on the Rome Statute, which they believe needs to be revised, and suggest that, in the short term, internationalized tribunals could complement the permanent ICC. In the final chapter, Alain Pellet stresses the dissimilarities of the four internationalized institutions and observes that they operate in small, weak and poor countries, or under a UN de facto trusteeship in the case of Kosovo. An objective is to strengthen the local judiciary, while the international community as a whole moves toward establishing a new judicial system that will fight impunity.

The contributors all display a thorough knowledge of the subject matter, and their discussion is heavily footnoted, leading to a wealth of supporting research. Readers will find considerable information in the tables of cases, treaties, international instruments and domestic laws. The bibliography is more than selective, and there is also a very useful list of websites with direct links to legal documents, case law and news about the internationalized judicial bodies. Finally, the index is comprehensive and will greatly assist the reader in back-tracking.

Anyone interested in international criminal justice will derive much benefit from reading this book.



© Copyright 2005 by the author, Daniel C. Turack.

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THE MAKING OF ENVIRONMENTAL LAW

by Richard J. Lazarus. Chicago: University of Chicago Press, 2004. 312pp. Cloth $35.00 / £24.50. ISBN: 226-47037-7.

Reviewed by Thomas W. Church, Department of Political Science, University at Albany/State University of New York. Email: TChurch@Albany.edu .

pp.195-199

THE MAKING OF ENVIRONMENTAL LAW provides a short, highly readable history of the enactment and subsequent implementation of the major federal environmental statutes in the United States, together with speculation on the reasons for the particular path taken by environmental law in this country, and analysis of key issues that the author believes will face environmental lawyers in the future. Lazarus is a law professor (at Georgetown University Law Center) whose career has included stints in the Environmental and Natural Resources Division of the Justice Department, the solicitor general’s office, and participation on the advisory boards of several major environmental organizations. Unsurprisingly, in light of this background, Lazarus approaches his subject matter as a committed environmental lawyer, a perspective that may help explain both the strengths and some of the limitations of the book.

The book is divided into three parts: the first purports to set out a “theoretical, analytic framework” (p.xv) for the subsequent analysis; the second describes the enactment and implementation of the major environmental statutes from the 1970s through the 1990s; and the third part contains the author’s speculations on the future.

The first part, the shortest, describes the unique place of environmental law in the legal firmament—the extraordinary complexity of the scientific issues underlying the relationship of humankind to the environment, and the uncertainty and inherent political difficulty involved in efforts to change this relationship through the legal and political systems. Central to this discussion is what Lazarus calls the spatial and temporal dimensions of environmental problems: that the impact of pollution and other aspects of human effects on the environment extend over broad stretches of space and time, increasing the uncertainty involved in any planned response, and making such efforts both scientifically and politically problematic.

The heart of the book is Part Two, made up of four chapters summarizing the advance of environmental legislation and policy from its modern origins in the 1960s to the end of the twentieth century. These chapters provide a short history of the major environmental legislation passed and implemented in the recent past in the United States. Along the way, the author develops a number of intriguing themes. For example, he discusses the role of information disclosure, pioneered in the National Environmental Policy Act (NEPA); according to Lazarus, this aspect of NEPA has had a more important legacy than the “bold [*196] declarations of policy” found elsewhere in the statute.

Lazarus also provides an insightful – if necessarily limited – discussion of the special role of courts in environmental law. (Interestingly, perhaps because of Lazarus’ primary experience as a litigator, the role the Environmental Protection Agency [EPA] and administrative action is not prominent in this discussion.) The judicial role in environmental policy was originally strongly facilitative, and frequently involved the courts in expanding federal power and pressing EPA to exercise more regulatory control over environmental harms. More recently, an increasingly conservative judiciary has moved in the opposite direction. Lazarus emphasizes the potentially revolutionary doctrinal shifts in environmental policy that may follow the Supreme Court’s recent tendency to reign in federal authority under the Commerce Clause—nearly all federal environmental legislation is constitutionally grounded in the commerce power. In other policy areas – in several cases reminiscent of the pre-New Deal Supreme Court – the justices have invalidated statutes on the grounds that the activity under review is insufficiently related to commerce. As Lazarus suggests, a number of environmental statutes, such as those addressing climate change, biodiversity, endangered species, and wetlands, are at best tangentially directed to commercial relationships and thus are potential targets for judicial nullification. The Court’s expansion of the constitutional requirement of just compensation for governmental “takings” of private property to the realm of regulations that have the effect of diminishing the value of property could also portend another major shift in the scope of environmental regulation.

Part Three of the book contains the author’s ruminations on “environmental law in the new millennium.” The first chapter in this section provides an insightful analysis of what he sees as an emerging “convergence” in the tools and directions of environmental law across different statutory frameworks. This chapter also includes a brief discussion of the complex question of policy design – the appropriate role of criminal sanctions in environmental regulation, for example, and the respective strengths and weaknesses of performance versus design versus other forms of environmental standards. (In light of Lazarus’ experience, I would have liked to see a more extended discussion of these important issues.) The next chapter considers some of the challenges likely to face environmental law in the future, both in terms of unaddressed problems (such as the impact of modern agriculture on the environment) and economic and social developments that may undermine support for stringent environmental controls (such as “the increased cognitive severance of consumers between environmental cause and effect” (p.220).

The final chapter – where Lazarus’ “green” orientation is most in evidence – is a vigorous condemnation of the environmental record of the current Bush Administration. The book ends with a postscript (entitled “the Graying of the Green”) that laments the passing from the scene of the first generation of environmental activists, with their “unbridled youthfulness and uncompromising focus” (p.254). I was reminded of Justice Harry Blackmun’s [*197] funerary pronouncements in PLANNED PARENTHOOD v. CASEY on the uncertain future of abortion rights. (“I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light” (at 922)).

General readers looking for a fairly short, readable account of the development of environmental law in the United States will find THE MAKING OF ENVIRONMENTAL LAW to be a welcome addition to their library. Were the book available in paperback, it would be good choice for introductory courses in environmental policy. But while there are a number of useful insights throughout this volume, it may disappoint serious students of environmental law and policy.

Most particularly, I do not believe Lazarus delivers on his basic promise to explain “How environmental law first emerged, [and] why it has since evolved in the way that it has” (p.xv). Given the book’s title, this is a serious deficiency. There is certainly a description of the passage of the major environmental legislation in the 1970s and early 1980s, and a discussion of major changes through the 1990s. There is a promise that the “theoretical, analytical framework” (p.xv) set out in the first part of the book will provide guidance in answering the latter question: WHY did environmental law develop as it did? Unfortunately, the framework set out in Part One would be more useful in explaining a failure of environmental law to see the light of day, rather than its largely successful enactment and implementation.

Central to Lazarus’ conceptual analysis in Part One is his assertion of the uniquely difficult problems addressed by environmental law: “Ecosystems are dynamic in space and time and effective ecosystem management must, accordingly, constantly reconcile nature’s spatial and temporal scales with those of humankind, including the latter’s often far more limited planning horizons” (p.8). The resulting complexities hinder effective legal responses. Lawmakers must face the interconnectedness of nature and of human effects upon it, in the context of substantial scientific uncertainty, in a dynamic, ever changing natural world. Further, there are unavoidable tradeoffs in environmental legislation: “The ecological injury to be redressed almost always involves actions that benefit some in one place or at one time, while causing harm to others at another place or another time” (p.26). And finally, “the Constitution’s preference for decentralized, fragmented, and incremental lawmaking” renders the American political system “especially ill-suited for environmental law” (p.30).

Yet a legal revolution took place in the 1970s and early 1980s in environmental policy. These gains withstood assaults from unfriendly Presidents, and a Republican Congress in the mid-1990s bent on wholesale revisions in the entire corpus of American environmental law. The question-in-chief is why these potentially revolutionary statutes were passed, implemented, and preserved over three decades in light of the many factors arrayed against them. As Lazarus states, “Given the enormous institutional and organizational obstacles to environmental law’s creation described in part I, dispassionate rational choice [*198] analysis would seem to lead ineluctably to the conclusion that no government would ever adopt such enormously redistributive legislation, especially when surrounded by tremendous scientific uncertainty” (p.47).

Lazarus, then, is forced to explain the success of environmental legislation in terms unrelated to the framework he set out in the first part of the book. We are to understand the burst of legislative activity in the 1970s, and its preservation and augmentation in subsequent years, in terms of the hearty “historical roots” of environmental law, and strong public support for protecting the environment. These factors may very well have influenced the course of environmental law in the final decades of the last century, but it is difficult to see why they were necessarily determinative in overcoming so many structural and political impediments, and Lazarus offers no evidence for this assertion. It goes without saying that many policy initiatives have historical roots and public support – gun control comes immediately to mind. But such policies frequently fail to move from popular idea to statutory enactment, let alone to anything approaching the string of legislative and administrative successes of the environmental movement over its three-decade-long history.

Rather than accept Lazarus’ conceptualization of the singularity of environmental policy, I would argue that environmental policy – while surely high on all these dimensions – is neither uniquely complex and uncertain, nor uniquely controversial. At a minimum, it shares more with other policy domains than Lazarus suggests. The substantive uncertainties and complexities, and the political controversies, involved in directing the fiscal and monetary policy of a massive economy, for example, is surely similar in complexity, uncertainty, and political controversy. Trade policy involves major imponderables and political constraints. Even policy areas as prosaic as product safety or occupational safety and health raise analogous – if somewhat less profound and perplexing – issues of “temporal and spatial” complexity, scientific uncertainty, and political controversy.

Rather than posit environmental law and policy as somehow sui generis, a student of the history of environmental legislation and its subsequent implementation could learn much from broader studies of policy formulation and implementation in other policy domains. Among the former, John Kingdon’s (1995) seminal discussion of “policy streams” would be relevant here: triggering events (the burning of the Cayahoga River in Cleveland, for example, or the discovery of toxic chemicals under the Love Canal neighborhood outside of Buffalo) open “policy windows” in which existing ideas that have been circulating over time in the policy community come to the fore and are ultimately enacted (as with the Clean Water Act and the Superfund legislation).

The peculiarly tortuous path of implementation of environmental legislation could be informed by Pressman and Wildavsky’s concept of “the complexity of joint action,” by Kagan’s discussion of “adversarial legalism,” (surely one of the definitional elements of environmental policy in this country) and by studies (such as Sparrow, 2003) of the implementation [*199] problems peculiar to regulatory programs, nearly all of which share the underlying political problem set out by Lazarus as the special province of environmental regulation: dispersed and uncertain future benefits being set against the certain and politically concentrated costs to the regulated population.

In the final analysis, Lazarus may have taken on an overly ambitious task – explaining why the vast amalgam of American environmental law originated and developed as it did. Indeed, the various pieces of environmental legislation, while sharing common elements, involved quite different legal, scientific, and political complexities, and had distinctive life histories. Thus the effort to explain – even to describe – their origins and development over thirty years goes substantially beyond what could be accomplished in a book of 300 (or perhaps even 3000) pages. Lazarus is clearly a committed environmentalist and a thoughtful observer of key developments in environmental law in the United States. Viewed as a more modest undertaking, one aimed at raising important issues and pointing out potential problems in the ongoing project of environmental protection, there is much to learn from THE MAKING OF ENVIRONMENTAL LAW.

REFERENCES:

Kagan, Robert. 2003. ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW. Cambridge: Harvard University Press.

Kingdon, John. 1995. AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES (2nd ed). New York: Addison-Wesley.

Pressman, Jeffrey and Aaron Wildavsky. 1984. IMPLEMENTATION (3rd ed). Berkeley: University of California Press.

Sparrow, Malcolm. 2000. REGULATORY CRAFT. Washington: Brookings Institution Press.

CASE REFERENCE:

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).



© Copyright 2005 by the author, Thomas W. Church.

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DETERMINING DAMAGES: THE PSYCHOLOGY OF JURY AWARDS

by Edie Greene and Brian H. Bornstein. Washington, D.C.: The American Psychological Association, 2003. 238 pp. Hardcover. $49.95. ISBN: 1557989745.

Reviewed by Paul Lermack , Political Science Department, Bradley University. Email: pnl@bumail.bradley.edu .

pp.191-194

Many disciplines have questions that can be answered by research on juries. Political scientists, psychologists, social psychologists, sociologists, anthropologists, economists, law professors and scholars who work with language are all producing empirical studies. If we add the anecdotal reports of lawyers, former litigants and witnesses, and the narratives of journalists, the resulting body of literature is enormous. It is certainly too large for any one person to read it all.

Therefore, we need the work of synthesis. A book that poses some question and then organizes the relevant data around it belongs in every college library. Recently, for example, we have Jonakait (2003), which, as the accurate dust jacket says, “discusses the empirical data that show how juries actually operate and what influences their decisions.” Another example is Kassin and Wrightsman (1988), who assemble evidence gathered primarily by psychologists. Such books are valuable, if for no other reason than that they allow students to study efficiently what we actually know about jury behavior.

Greene’s and Bornstein’s book is less comprehensive; it focuses on civil juries and explores only the variables that affect how jurors determine civil liability to construct actual and punitive damages awards. This is an important topic. Although pioneering empirical researcher Harry Kalven long argued that the civil jury plays a key role in our court system, (e.g. 1964) it is less often studied than the criminal jury. Less material is available for classroom use and civic education. Moreover, civil juries are presently the subjects of political pressure for drastic reform. They are attacked as incompetent, or (as the dust jacket of the present book puts it) “biased, capricious, unreliable, hostile to corporate defendants, excessively generous, and out of control.” Are these charges correct? The empirical data presented here are relevant.

The authors are psychologists currently at, respectively, the University of Colorado in Colorado Springs and the University of Nebraska. Both have published extensively in the field of jury studies, and both have worked as consultants to trial lawyers. They focus here on what psychologists find most interesting, the variables that affect juror decision-making—characteristics of the various trial participants, the severity of the injury with which the trial is concerned, the behavior of people in the courtroom, the admissible and inadmissible evidence, and, most interestingly, the process jurors follow in the jury room when they decide what to do. [*192]

There are few surprises in the description of juror behavior, because the authors rely on previously published research (some of which they performed themselves), and also because most research in the field is meant to replicate or flesh out the pioneering work of the Chicago Jury Project in the 1950s (Kalven and Zeisel 1966). Thus, for example, we learn that juries are influenced by such variables as the age, gender and race of the plaintiffs, but that such influence is modest, much less than the influence of the evidence. Though jurors properly consider the “deep pockets” of blameworthy defendants when they assess punitive damages against them, the data are “sharply split” (p.67) on whether there is a legally improper deep pockets effect when actual damages are calculated. Overwhelmingly, jurors are found to depend most heavily on the evidence.

Jurors, we can conclude, generally approach their work conscientiously and are capable of these complicated tasks. This confirms preponderant opinion in the field. But the authors also confirm the existence of known problems. Jurors bring their experiences with them into the jury room and are sometimes influenced by their preexisting notions of justice and equity. They are sometimes impermissibly influenced by race and wealth, and they are often confused about the law. Although the authors conclude that these undesirable influences affect judgments only modestly and are less important than the evidence, the findings are troubling nevertheless.

The book becomes more intriguing when the authors turn to the decisionmaking procedure in the jury room. Just how do jurors determine how much to award under the headings of actual and punitive damages? How do the customs and conventions of discussion among strangers affect decisions? The authors rely most heavily on simulations. In the absence of data from real juries, upon whom we cannot eavesdrop in any systematic way, simulations are the next best thing. However, the deliberation in a jury room cannot be simulated. The jury’s complex and important task, performed under stress by conscripts plagued by irrelevancies and distractions, is simply not the same as the simple and trivial experimental task, performed by college students in familiar surroundings, and carefully designed to eliminate all irrelevancies and distractions. Experimental conditions can be made more realistic, as when “real” jurors are chosen from jury pools. But as a practical matter, only a limited realism can be achieved. Since the experimental variable must be isolated (and everything else held constant), and since the experiment must be run repeatedly in exactly the same way, details need to be controlled. The simulated trial is usually filmed or taped, lest the actors have colds on one day, or let some flash of irrelevant anger show on the next.

Instead of trying to reproduce the whole deliberation, experimenters typically focus on one bit or variable. Studies are modest; the Chicago jury project learned, for example, that gender, age, race, attractiveness and sheer assertiveness all play a role in determining who, in the jury room, emerges as a leader. But the findings thus far are so fragmentary that it has proven impossible to induce anything like a general theory of deliberations. [*193] Must a leader inevitably emerge in the jury room, or is the documented emergence of leaders an artifact of the way in which certain studies were constructed? If a leader emerges, are the deliberations inevitably and systematically different than they would be without a leader?

The present authors do not attempt anything like a general theory. Instead, they focus on a number of phenomena, or variables, that affect deliberations. They assemble data on each of these phenomena, analyze their impact, and then consider the usefulness of various reforms that have been proposed. Thus, for example, it has been hypothesized that when a jury has to calculate a precise damage amount, it will be highly influenced by whatever benchmark sum has been presented to it. This amount, or “anchor,” is thought to become the starting point for discussion; jurors revise it upwards or downwards as they consider evidentiary factors. In some states, the plaintiff’s lawyer is required to request a specific amount of damages. If the jury tends to view this “AD DAMNUM” as an anchor, it would be to the lawyer’s advantage to make the amount as large as possible.

This hypothesis can be studied by using mock juries. The experimenter runs the trial over and over, varying only the amount (or mere existence) of the AD DAMNUM. The experimental situation need not be very complex or realistic; it need only isolate this one variable. In fact, the work has been done. As a rule of thumb, and all other things equal, the more the lawyer asks for the more the winning client will get (pp.151-152). Plaintiffs’ lawyers in states that permit or require AD DAMNUMS are favored; those in states that forbid them are disadvantaged.

The authors study a number of these influential variables. In addition to reliance on anchors, they find that jurors characteristically adopt a holistic approach, looking for a single sum that “seems right;” that they are affected by such complexities as multiple plaintiffs, counter-intuitive legal rules and the need to apply some facts only when calculating punitive, as opposed to actual, damages; and that “blindfolding” jurors by denying them information (about insurance or attorneys’ fees) simply leads jurors to make assumptions about such things from their own knowledge or biases. The findings then inform a discussion of proposed technical changes to the law meant to improve jury trials, among them clarifying instructions, bifurcating the trial—that is, separating the calculation of actual and punitive damages—and capping awards.

DETERMINING DAMAGES is meant to be a comprehensive summary of what is known. It is scholarly, authoritative, and published by the American Psychological Association. For all these reasons, it will inevitably play a role in the current debate concerning drastic reforms in civil court procedures. If we ask whether jurors are capable, as the system now exists, of providing fair and equitable civil justice, the answer is a qualified yes. Jurors have this capability, and if they do not always achieve the ideal, they are certainly no worse than any conceivable alternative. We may be able to eliminate some of the problems researchers have found by tinkering with the law as the authors discuss. The drastic reforms proposed by some [*194] politicians would therefore seem to be unnecessary, if not counter-productive.

But assuming that jurors CAN do the job, are they doing so? Are existing awards too large, too unpredictable, or biased in undesirable ways? The authors present statistical evidence to demonstrate that jury awards are typically “modest, stable and predictable” (p.35). The whopping punitive damage blockbusters, so haunting to critics, are rare. Added to the finding that jurors focus most on the evidence, it is hard to see how the process can be faulted, or how an alternative process could do any better. Still, equity is a problem. Juries should treat like cases similarly in some reliable way (p.79). The authors concede that a few huge awards in a small number of unusual jurisdictions may have skewed statistics, making the process seem less reliable than it is on average. Horizontal equity, they admit, “is much less than one might desire.”

This lack of equity may be getting worse. Recent research has indicated that massive awards of $100 million or more have increased dramatically since 1999; that they are highly concentrated geographically, with 27 of 64 in only two states; and that juries award more money, in much less predictable ways, than judges (Viscusi 2004; Hersch and Viscusi 2004). This research suggests that the policy question of whether juries are doing what we want may not best be dealt with by evidence in the form of averages. In its impact on the system, its deterrent effect on businesses, and its hortatory effect on public opinion, the occasional well-publicized unpredictable blockbuster award may be more important than the normal, ordinary or typical award.

REFERENCES:

Hersch, Joni, and W. Kip Viscusi. 2004. “Punitive Damages: How Judges and Juries Perform.” 33 JOURNAL OF LEGAL STUDIES 1.

Jonakait, Randolph N. 2003. THE AMERICAN JURY SYSTEM. New Haven: Yale.

Kassin, Saul M., and Lawrence S. Wrightsman. 1988. THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES. New York: Hemisphere Publishing Co.

Kalven, Harry, Jr. 1964. “The Dignity of the Civil Jury.” 50 VIRGINIA LAW REVIEW 1055.

Kalven, Harry, Jr., and Hans Zeisel. 1966. THE AMERICAN JURY. Boston: Little, Brown.

Viscusi, W. Kip. 2004. “The Blockbuster Punitive Damages Award,” Harvard Law School John M. Olin Center Discussion Paper Series #473; SSRN #535704.



© Copyright 2005 by the author, Paul Lermack.

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IN PURSUIT OF RIGHT AND JUSTICE: EDWARD WEINFELD AS LAWYER AND JUDGE

by William E. Nelson. New York: New York University Press, 2004. 300pp. Cloth. $50.00. ISBN: 0-8147-5828-2.

Reviewed by Renee Ann Cramer, California State University at Long Beach. E-mail: rcramer@csulb.edu

pp.187-190

William E. Nelson’s biography of judge Edward Weinfeld, appointed to the US District Court for the Southern District of New York by President Harry Truman in 1950, provides a richly documented history of Weinfeld’s personal and professional life. The book goes far in substantiating Justice William Brennan’s view of Weinfeld, that “there is no better judge . . . on any court,” and in explaining how Weinfeld earned distinction for his integrity, fairness, and diligence on the bench.

Nelson’s ability to exhaustively detail aspects of Weinfeld’s life stems from his close ties to the judge and his family, as well as his position as Edward Weinfeld Chair at New York University Law School. Nelson had access to voluminous records kept by Weinfeld, and he interviewed family members, friends, and former law clerks of the judge. Clearly, Nelson intends his biography as a token of his appreciation for the valuable lessons he learned while Weinfeld’s law clerk and friend.

Admiration for a mentor, however, is not usually good enough reason for a press to publish a book, and Nelson must make a case for the importance of his study. He provides three reasons that a reader should care about Judge Weinfeld. First, he asserts that “the judge’s climb from humble origins to distinction provides an excellent illustration of the way Catholics and Jews descended from turn-of-the-century immigrants were assimilated into the mainstream of New York and ultimately American life during the course of the twentieth century” (p.2).

Second, Nelson argues that close attention to his biography “enable[s] us to examine the compromises he had to make in order to attain professional advancement,” and that “[Weinfeld’s] story tells us that the descendants of turn-of-the-century immigrants did not achieve success without significant sacrifice” (p.3).

Finally, Nelson argues that Weinfeld was “unique” because “the singular style of judging he adopted permeated every aspect of his work from the bench,” and made him “the preeminent trial judge in twentieth-century America” (p.4). This style was typified by judicial restraint (marked by a hesitancy to make new law, and a refusal to make policy), close attention to the facts before him, and a desire “only to do justice between the parties” (pp.4-5).

Unfortunately, these three reasons are over-stated and under-substantiated. The first two contentions – combined, that Weinfeld’s rise to judicial distinction helps the reader understand the pressures faced by Jewish and Catholic immigrants – are plausible, [*188] though not adequately proved. I will only briefly address these claims, below. Nelson’s third point – that Weinfeld’s judicial style was both unique and apolitical – is more problematic, and warrants a more extended discussion.

Chapter 2 briefly examines Weinfeld’s family background and moves quickly to a discussion of youthful education and dreams, and Chapter 3 discusses his early legal life in considerable detail. After apprenticing at law, Weinfeld began his professional life in an eclectic private practice. Whether the proceedings were criminal or civil, he tended to represent the underdog – even the pariah. In divorce cases, Weinfeld often represented the female marriage partner; several of the women who hired him were thoroughly modern in their desire to work outside the home, wear make-up, and even initiate the divorce proceedings. In other civil and criminal cases Weinfeld represented unpopular clients, often against large and powerful opponents, and as Nelson notes, he showed little difference among them: “Weinfeld did not tailor the amount of work he was prepared to perform to the fee that he would obtain for performing it. He worked as hard as was required by the legal matter in which he was engaged without regard to the client’s ability to pay” (p.42). His practice was “not about maximizing his income but about meeting the highest of professional standards and serving his client well.” As a result, his practice was “not a lucrative one” (p.47).

I am not convinced by these chapters, however, that neither the financial nor personal sacrifices Weinfeld made in order to give his full attention to his practice, were made solely or primarily because he wanted to assimilate into mainstream U.S. culture. Nor do I think Weinfeld’s “uncanny ability to outwork any lawyer” (p.78) was necessarily due to his Jewish background or desire to assimilate. It is certainly possible that his ethnic background, religious training, and family life prior to becoming a lawyer had tremendous impacts on Weinfeld – Nelson’s biography does not, however, provide sufficient discussion of these possibilities to convincingly generalize.

More problematic than these two claims, however, is Nelson’s insistence on the existence of a dichotomy between law and politics, in the service of making his third point, about the uniqueness of Weinfeld’s jurisprudence.

In what is probably the best chapter of the book, the one discussing Weinfeld’s attempts to gain judicial office, Nelson begins to de-couple law from politics. He argues that deeply “political processes” caused Weinfeld’s two failed attempts. Though Nelson grants that “even [Weinfeld’s] good luck [with getting his trial judge appointment] had a political component . . . connected to his friendship with Herbert Lehman” (p.114) – he contends that Weinfeld “did not want judicial office to become a matter of political barter and sale. Indeed, anything political produced in him certain ambivalence” (p.121). It is clear from the narrative, and from later quotes attributed to Weinfeld, that the judge’s idea of “political” was tied to money. While he did not want money to influence the judicial appointment process, he did not see any problem in using friendship and ties of loyalty to get his position. [*189]

And, Nelson continues, “once Weinfeld was on the bench, politics ceased, as he sought wisdom from nonpolitical sources so as to make himself into an outstanding judge” (p.114). This wisdom is documented in his “commonplace book” into which he copied quotes and sources of inspiration of the creation of his judicial persona. Weinfeld relied upon Old Testament teachings and sought guidance from Chief Justices John Marshall and Charles Evans Hughes, Justices Oliver Wendell Holmes and Louis D. Brandeis, and Judges Augustus N. Hand and Learned Hand. Many of the quotes in his book focus on impartiality, as well as on the need for exhaustive work, a measure of loneliness, adequate study, and reflection. These quotes give us insight into Weinfeld’s judicial style and temperament, which are detailed in the heart of his biography, Chapter 8 (“The Patriarch: Edward Weinfeld’s Judicial Style”) and Chapter 9 (“The Liberal: Edward Weinfeld’s Judicial Values”), and which further the claim that Weinfeld’s legal style was “nonpolitical.”

Nelson maintains that the patriarchal views held by Weinfeld allowed him to be a compassionate mentor and judge, and that his liberal views caused him to be cautious about government motives vis a vis individuals. Certainly, to title chapters “The Patriarch” and “The Libera,l” while arguing that the judge was “nonpolitical,” is disingenuous. It would simply be ridiculous to insist, and Nelson does not attempt to, that patriarchy and liberalism are “nonpolitical.”

Nelson does contend, however, that Weinfeld was able to avoid politicizing his decisions because of his unique view of equality and justice:


Weinfeld did not pursue a vision of equality that divides society into classes and interest groups at war with each other. Thus, he never had to focus on the perverse question whether a judgment in a case would give a particular group or class more or less than its fair share of societal pie. This question . . . creates a sharp dichotomy in the thinking of a judge between fidelity to law and considerations of social policy. Judges who focus on the question can never decide any issue of law without favoring some social groups or interests over others . . . her [sic] vision of justice will always be controlling – it will prescribe how much of a role preexisting legal doctrines will play in the determination of cases (pp.170-171).

Weinfeld was different:


He saw only individuals, not groups and classes, in the litigants who came to his court. For him, equal justice was not about the distribution of wealth and power, but about the behavior of government towards citizens. . . . since his vision was different – it required only that he adhere consistently to the rule of law – it never created a conflict with the imperative of fidelity to law that a judge with a vision of equality as distributional justice would face. Instead, it directed fidelity to law (171).

What Weinfeld, and apparently Nelson, fail to realize, however, is that the rule of law itself is a result of power relations. In fact, “views” of the world do not “divide society into classes and interest groups at war with each other.” Rather, realities of the world – unequal distributions of wealth and power, for [*190] instance – effect that division, which is often maintained by the rule of law.

Nelson anticipates this criticism. In the final pages of the book, he notes that some scholars will take issue with his staunch reliance on a division between law and politics:


Edward Weinfeld always acted as if law existed transcendentally, so that, once the facts of a case were determined, the outcome became obvious. . . . Most scholars today doubt, however, whether any inherent moral order exists. They are inclined to reject the proposition that some master culture, from which a judge can derive standards for adjudicating cases, sets norms for all. These jaded scholars see Weinfeld’s jurisprudence as quaint and out of vogue and can only laugh at a man who strove to become a good judge by purchasing a leather-bound book and inscribing therein all the maxims he could find about judging. In order to find Weinfeld’s juridical method useful, readers must conclude that they do not yet reside in such a rigidly multicultural world, in which adjudication in accordance with norms that transcend any one culture has become impossible (227).

Though I would argue that the dichotomy between law and politics posited by Weinfeld and Nelson is a false one, I do not regard myself as a “jaded scholar” living in a “rigidly multicultural world” laughing at a “quaint” old judge. Nor do I think a reader has to denounce postmodern realizations and embrace natural law conceptions of the legal order to appreciate what Weinfeld brought to the bench.

Nelson overreaches in stating the uniqueness of the judge’s jurisprudence in order to make the book seem more relevant and useful. Though this may have been demanded by the press, it is fundamentally unwarranted. Judge Weinfeld is important and worth reading about – not because of a unique or lasting jurisprudential legacy, though there may be one. Rather, he is worthy of study for having lived a personal and professional life aptly described by his biographer as typified by dedication, dependability, a lack of competitiveness, a capacity for friendship, loyalty, a habit of caring, strategic sense, avoidance of conflict, and a desire to help others. Even those not so intimately tied to the judge as Nelson, can find much of value in that description.



© Copyright 2005 by the author, Renee Ann Cramer.

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CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW

by Ken I. Kersch. New York: Cambridge University Press, 2004. 400pp. Cloth, $75.00 / £40.00. ISBN: 0521811783. Paper. $29.99 / £18.99. ISBN: 0521010551.

Reviewed by George Thomas, Department of Political Science, Williams College.

pp.181-186

The notion of a “living constitution” that has evolved in a progressive direction, culminating in the great Warren Court civil liberties and rights decisions, is a familiar one. This narrative largely informs our understanding of constitutional law in the twentieth century. In the early years of the century, Progressives struggled with a reactionary Court wed to atavistic notions of a formal constitution and “economic rights.” This struggle culminated in the New Deal, which reordered our constitutional commitments by solidifying expansive national power while simultaneously placing the Supreme Court in the role of protecting “civil liberties.” Thus the New Deal frames American constitutional development in the twentieth century. Notice, too, that the very language of “development” is freighted, insinuating a sort of constitutional evolution that moves in a linear manner toward something higher. Enter, here, our current understanding of “civil liberties.” Remarkably, even as revisionist scholarship has offered us a more rounded portrait of early twentieth century constitutionalism and the New Deal revolution, we continue to view post-1937 debates about civil liberties through this New Deal telling of history.

Ken Kersch’s CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW brilliantly dismantles this facile view of American constitutional development and its telos of “modern civil liberties.” This Whiggish narrative, as Kersch dubs it, takes the end result as given—a simple “triumph of principle” (p.25). In doing so, it ignores the actual history of constructing a New Constitutional Nation, which was central to twentieth century state building, and required the reconstruction of constitutional liberty. It is this history that Kersch seeks to recover, giving us a richly textured genealogy of current constitutional morals (although this suggests the book might have been more aptly titled, RECONSTRUCTING CIVIL LIBERTIES).

Most strikingly, this Whiggish narrative of barrier, breakthrough, and apotheosis ignores the agonistic struggle over liberty that was at the heart of the state-building process. This is most obvious insofar as the narrative reads putative “economic” liberties out of what constitutes “civil liberties.” Thus rights and liberties, long protected within the terms of traditional American constitutionalism, were, in accord with imperatives of state building, said to be no longer rights. In this manner, the Whiggish narrative involves “erasures” that gloss over the agonistic and conflicted struggle between “liberties and liberties” and “rights and rights” that [*182] were central to forging the institutions of the New American State. Kersch illuminates the politics of this struggle by turning to three “sites” of constitutional development: criminal process and privacy rights, workplace and labor rights, and education rights.

In turning to these sites, Kersch offers extraordinarily detailed evidence of the agonistic political struggles involved, which turned on hard choices between rights, or, often, on struggles against constitutional rights to make way for the New American State. These historical studies are fascinating in their own right, but serve a more important purpose in excavating the conflicted process of twentieth century American constitutional development. Recovering these “erasures” jettisons the traditional narrative, revealing that those involved in the state-building project were often explicit in their pro-statist and anti-rights arguments. But this is not Kersch’s central aim. As he says, “I do not so much reject the Whig narrative of constitutional development as invite it in as an endogenous part of an affirmative, historically anchored theory of constitution development that takes seriously the ideological process involving the construction of constitutional legitimacy” (p.11). In this, Kersch mirrors recent scholarship in American Political Development, which moves away from the notion that development is a linear process that moves toward a constitutional end. Rather, Kersch seeks to show how “development” itself is, at root, about the creation and recreation of constitutional authority. Attempts to justify and sustain a constitutional order necessarily entail momentous political struggles over ideas.

Yet, as Kersch illustrates, the trajectory of these constitutional conflicts has been flattened, even audaciously reimagined, to accord with the progressive telling of history. Kersch illustrates, for example, how the early “privacy” decisions were rendered against the state-building project. Indeed, proponents of expanding national administrative capacity like Justice Louis Brandeis actively sought to bring the private to public light. In Kersch’s words, the reach of the new administrative state required making the once private “legible” by way of an all-seeing state. And Brandeis, like fellow travelers Herbert Croly and Walter Lippman, was unapologetic about expansive state power. It was simply the price of progress. As Croly remarked, prefiguring Brandeis’ famous insistence upon the purifying exposure of light: any part of the system “which shuns the light . . . is necessarily suspect” (p.55). This project of legibility, however, ran afoul of traditional constitutional understandings as expounded by justices like Stephen Field and Joseph Bradley in BOYD v. UNITED STATES (1886). This traditional understanding was later championed by the likes of Justices James Clark McReynolds and Pierce Butler who were active opponents of the state-building project. Thus the “Old” Court protected the right to be secure in one’s person and private papers against a “seeing” state. Tellingly, in protecting a right to privacy against state intrusion, the Court did not distinguish between “economic” privacy and “personal” privacy. This distinction was constructed later to justify the protection of some “civil liberties,” willfully reading others out of the tradition.

Thus, for example, the contemporary right to privacy is often seamlessly [*183] traced back to the great progressive Brandeis in his now famous HARVARD LAW REVIEW article, “The Right to Privacy.” Yet Brandeis was not, in fact, much of champion of privacy as the term is now used. And the privacy protecting decisions of Field and Bradley, and of McReynolds and Butler, are altered or erased from the conventional narrative. Notably, again, the very distinction between “personal” and “economic” rights that has become central to current civil liberties was not actually used by progressives like Croly, Lippman, and Brandeis. Indeed, Kersch argues, Brandeis’ famous article on privacy hardly recognized a constitutional right to keep the government at bay. On the contrary, the article justified individual action against the press for printing a private person’s name in the paper. Today, such an understanding would surely by at odds with the “freedom of the press,” but it was hardly inconsistent with Brandeis’ “tireless advocacy of governmental intrusion.” It was, in fact, justices like McReynolds and Butler—later deemed anti-civil libertarian reactionaries—who drew upon the arguments of Field and Bradley to pose limits to national power in a civil libertarian vein. Thus, “narrowing the scope of privacy rights was a progressive and not a conservative project” (p.112). But such inconvenient dilemmas are expunged in favor of Whiggish constitutional history.

In his second site of development, Kersch illustrates how this is particularly evident in the tension between labor rights and civil rights. Refashioned in a Whiggish guise, these rights easily move in stride. In fact, however, the struggle for “labor rights” often came at the expense of individual laborers, and often at the expense of black workers in particular. Reformist campaigns concerning “the labor problem” were frequently framed in collective terms and spoke of group and class rights, not individual rights. This vision came to be institutionalized in the Norris-LaGuardia Act and the National Labor Relations Act which “marked the defeat of important claims of individual rights.” The consequences of this move, Kersch argues, have been underappreciated. Organized labor was more often than not hostile to African Americas. Labor unions were the first large scale organizations to exclude blacks in the post bellum period—prohibiting admission of blacks to unions and deliberately excluding them from the workplace. Thus, prior to the 1960s, a step forward for “labor rights” usually meant a step back for black “civil rights.” Against this backdrop, it is not surprising that African Americans were staunch supporters of “dignity of labor constitutionalism.” But workers who supported such rights were dismissed out of hand by Croly, whom Kersch calls the “founder of modern constitutional theory,” for having “gone astray” based on “apathy, unintelligence, or incompetence.” Indeed, the “non-union industrial laborer should, in the interest of a genuinely democratic organization of labor be rejected; and he should be rejected as emphatically . . . as the gardener rejects weeds in his garden for the benefit of fruit-and flower-bearing plants” (p.186).

This is vividly illustrated in the case of Paul Senn, the owner of a small tile laying business who, when circumstances permitted, hired outside workers. The Tile Layers Union of Milwaukee, however, demanded that he [*184] unionize his “work force.” He was sympathetic, but under Union rules he would have had to quit working himself (among other things). Sympathetic to the union, Senn asked for an exemption for his own labor, while agreeing to hire only Union workers and follow Union regulations with regard to hours and labor. The union refused. It then proceeded to picket and harass Senn, calling him “unfair” to labor in “a sustained campaign to destroy his business” (p.181). Under traditional rights to work, Kersch argues, Senn would have been protected. But the dispute was treated, under the emerging order of group rights, as a “labor dispute.” Thus Justice Brandeis airily dismissed Senn’s constitutional claims. Individual rights to work, and choices about work, mattered little against the collective right of the labor union “to enhance their opportunity to acquire work for themselves and those they represent” (p.183). This “ideological reconstruction gave constitutional sanction to a new constitutionalism of groups and aggregates rather than a constitutionalism of individuals” (p.187).

This view is perhaps most apparent in the forgotten debates over education rights, which is Kersch’s third site of development. Here the progressive state-building project sought to construct truly “national” citizens, explicitly viewing children as creatures of the state. This effort involved compulsory school laws, English only laws, and outlawing private schools in an effort at “Americanization.” This required dissolving attachments to family and religion, which were seen as obstacles to social progress and what Kersch calls the New Constitutional Nation. John Dewey, for example, praised Soviet education for directly taking on the “bourgeois family,” which was a “breeder of nonsocial interests” (p.278). State and national building reformers sought to overcome such parochial attachments. As a leading education progressive and professor at Stanford gleefully put it, “each year the child is coming to belong more to the state and less to the parent” (p.251). Kersch’s exacting research is replete with such examples, drawing on long forgotten, or “erased,” political ideas. But he also shows how the unacknowledged remnants of such thinking are manifest in contemporary liberal and constitutional thought. Here the work of Rawlsian political theorist Stephen Macedo is apropos. In DIVERSITY AND DISTRUST (2000) Macedo calls for a transformative liberalism, which would require the state to reorder the private life of (some) citizens in order to make them proper “constitutional citizens” fit for “constitutional” government. This parallels, all too eerily, the sort of elite ideological reconstruction of citizens that was central to nation building. What’s more, this audacious attempt at transforming individuals into good citizens is refashioned in constitutionalist clothing (Macedo, 2000 and 2001). The result is a sort of arm chair or academic constitutionalism that washes away inconvenient private attachments in favor of abstract moral theorizing fashioned from on high.

This spirit continues apace, as evidenced by Kersch’s provocative précis on “global constitutionalism” that concludes CONSTRUCTING CIVIL LIBERTIES. Elite intellectuals have begun the moral call for a transnational constitutional order with a global [*185] conversation amongst judges that will bring global constitutional “norms” home, overcoming atavistic notions of sovereignty and “domestic” constitutions (or at least the U.S. Constitution). This project exquisitely captures the “progressive” imperative, ducking the hard choices involved and ignoring inconvenient facts in the spirit of “setting up new global deliberative forums that are free of the sorts of people who have caused [these theorists] so much trouble at home.” And in the confines of these forums, a “consensus among ‘reasonable people,’ concerning the requirements of ‘global,’ ‘cosmopolitan,’ or ‘universal’ justice is now possible” (p.346 and Macedo 2001a). For, just as Herbert Croly deemed the worker who would opt out of a labor union “unintelligent” or “incompetent,” academic theorists deem “unreasonable” those who do not readily share their presumptions (e.g., Macedo 2000; 2001a; 2001b).

Kersch deserves considerable credit for his immense scholarly undertaking of excavating the agonistic and often tragic struggle that has been at the heart of American constitutional development in the twentieth century. But a deep question remains: what does development mean, shorn of its telos? Abandoning the Marxist foundations of “development” as an inexorable process of state building is an important and worthwhile move. So, too, is the insistence that ideas matter profoundly to constitutional development. But is development still a worthwhile term? Kersch thinks of it as the construction of constitutional authority. In a similar vein, Stephen Skowronek and Karen Orren, in THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT, define it as “a durable shift in governing authority” (p.123). This involves the creation and recreation of institutional legitimacy that exists within multiple institutional orders, which themselves move on different trajectories in a continual process of creation and recreation. Terms pile upon one another. The result is “intercurrence” and “layering” (Skowronek and Orren 2004, pp.116, 118, 128), so that “in the fullness of time, development is as rife with abrasions, abutments, agonisms, drift, and tensions as any other area of political life” (p.11). This can get dizzying. It is not clear that such complexity and academic jargon are necessary. Nor is it clear that they help us understand why “developmental” approaches are a unique and significant way to study politics. Perhaps “development” itself is a vestige of earlier usage, the institutional debris of past scholarship. Is it now simply a jargon-laden “social scientific” way of saying that context, history, and politics matter?

I am deeply sympathetic to Kersch’s view of development and think there is something far more interesting going on here. But I do think a challenge for scholars of American political and constitutional development is to explain what this is, shorn not just of telos but of distracting academic jargon as well. (Thomas Keck’s THE MOST ACTIVIST SUPREME COURT IN HISTORY and Kevin McMahon’s RECONSIDERING ROOSEVELT ON RACE are both excellent books that are deeply informed by APD while avoiding such jargon.) But let me be clear. Kersch has written one of the most ambitious books in memory. And I suspect that he [*186] indulges such jargon to connect with an audience and field that indulge it, even while seeking to challenge much of the staid orthodoxy within that field. For that, Kersch might be forgiven for he succeeds so brilliantly.

REFERENCES:

Keck, Thomas. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: University of Chicago Press.

Macedo, Stephen. 2001a. “Princeton Principles on Universal Jurisdiction.” Program on Law and Public Affairs, Princeton University.

Macedo, Stephen. 2001b. “Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism” in Sotirios Barber and Robert George, eds., CONSTITUTIONAL POLITICS: ESSAYS ON CONSTITUTION MAKING, MAINTENANCE, AND CHANGE. Princeton: Princeton University Press.

Macedo, Stephen. 2000. DIVERSTIY AND DISTRUST: CIVIC EDUCATION IN A MUTLICULTURAL DEMOCRACY. Cambridge: Harvard University Press.

McMahon, Kevin. 2004. RECONSIDERING ROOSEVELT ON RACE: HOW THE PRESIDENCY PAVED THE ROAD TO BROWN. Chicago: University of Chicago Press.

Orren, Karen and Stephen Skowronek. 2004. THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT. New York: Cambridge University Press.

Warren, Samuel D., and and Louis D. Brandeis. 1890. “The Right to Privacy.” 4 HARVARD LAW REVIEW 193-220.

CASE REFERENCES:

BOYD v. UNITED STATES, 116 US 616 (1886).



© Copyright 2005 by the author, George Thomas.

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CREATING CONSTITUTIONAL CHANGE: CLASHES OVER POWER AND LIBERTY IN THE SUPREME COURT

by Gregg Ivers and Kevin T. McGuire (eds). Charlottesville, VA: University of Virginia Press, 2004. 328pp. Cloth $65.00. ISBN 0-8139-2302-6. Paper $24.50. ISBN 0-8139-2303-4.

Reviewed by Matthew J. Franck, Department of Political Science, Radford University. Email: mfranck@radford.edu .

pp.176-180

Those of us who make it our business to study, teach, and write about the U.S. Supreme Court are apt to find nearly anything about the justices, their work, the parties before them, the interests involved in the cases, and the impact of the Court’s rulings just fascinating, no matter how trivial some of the information we consume. Give a public law scholar a fat new reference book on the Court, and come back several hours later: you are apt to find him or her still absorbed in browsing its pages.

All of this is by way of introducing the problem I have with the book at hand. In certain respects, I like it a lot, but I cannot figure out what it is for. Gregg Ivers and Kevin T. McGuire have assembled twenty-two short chapters by twenty-four contributors (including themselves), each chapter a treatment of the background, decision, and/or impact of a case (or in one instance, two companion cases) decided by the U.S. Supreme Court. Some of the cases are obvious choices for inclusion in any book whose editors wish to acquaint readers with “major” rulings of the Court: BUSH v. GORE (2000), YOUNGSTOWN SHEET & TUBE CO. v. SAWYER (1952), HAMMER v. DAGENHART (1918), and MIRANDA v. ARIZONA (1966), to name a few. Other cases are arguably important and intrinsically interesting, such as CLINTON v. JONES (1997), ATKINS v. VIRGINIA (2002), and CHURCH OF THE LUKUMI BABALU AYE v. CITY OF HIALEAH (1993). A few, however, are only tangentially related to the “constitutional change” in the book’s title, have more to do with statutory or regulatory issues, and seem to have been included because of the authors’ or editors’ personal interest in them; in this category are FLOOD v. KUHN (1972), PGA TOUR, INC. v. MARTIN (2001), and CIPOLLONE v. LIGGETT (1992). Almost without exception, the cases discussed are interesting in themselves, and the chapters are nearly all well-written. For anyone who teaches any of the cases dealt with herein, the book is a treasure trove of interesting facts upon which one can draw when students ask questions.

But I am sorry to have to report that “interesting” is the best thing I can say about this volume—and for reasons already noted, I am predisposed to be interested, so I cannot vouch for the sustained interest of any readers who would be new to the subject matter. Most of the chapters work chiefly as examples of what we might call the higher journalism, or, where the older cases are concerned (and none is older than the 1918 HAMMER ruling), as history-as-reportage. I am almost at a loss to say just what the book as a whole [*177] says about the state of political science scholarship in constitutional law—except perhaps to say that political science has lost its way.

Here is a short history of the matter, crude in detail, but accurate, I think, in its main themes. Political science as an organized, modern academic discipline has existed for a little over a century. For about the first half of its existence, public law was a vitally important interest of the discipline as a whole—one might even say that the modern study of political institutions grew out of the study of law as an organizing principle of political life. In the early twentieth century, pioneering political scientists like Edward Corwin examined the impact of constitutional jurisprudence on American civic life, and along the way proved themselves every bit the equal—often the superior—of constitutional law scholars in history departments and law faculties when it came to the analysis, critique, and uses of legal reasoning. What Corwin’s generation understood was that the most important question about every Supreme Court decision is also the most interesting question to the ordinary citizen, to the student, and hence to the scholar as well—i.e., was it rightly decided? But then, like every ordinary citizen, the scholars of Corwin’s generation believed or appeared to believe that the Constitution has a meaning of its own, independent of the passions of students, the interests of advocates, and the inclinations of judges. Legal reasoning, therefore, was actually possible. Political scientists’ work in public law was not confined altogether to questions of the use and abuse of legal principles, and even scholarship that centered upon such questions was not always polemical or even sharply judgmental in nature. But it was understood that the indispensable starting point for teaching new students of constitutional law was to equip them with the tools of reasoning that would allow them to draw thoughtful, defensible conclusions of their own about the meaning of the Constitution, in the belief that there were right answers in principle available to them.

The behavioral revolution of a half-century ago, which brought fully into daylight the implications of positivism in political science, gave birth to the first generation in public-law scholarship of what is now known (and still going strong) as the “attitudinal model.” More or less explicitly rejecting the possibility that legal reasoning and legal principles were themselves important independent variables in judicial decision-making, the judicial behavioralists undertook to demonstrate, through the application of quantitative empirical methods, that public law was not so much the shaper of political life as the plaything of ideological, partisan, and personal motivation on the part of judges. The complete neglect of legal reasoning, and the near-total exclusion of legal principle as a causal force in judicial decision-making, represented a classic instance of begging the question, as the late Wallace Mendelson cogently argued forty years ago in several articles critical of the judicial-behavioralist enterprise. And the effect of behavioralism on traditional constitutional-law teaching, with its casebook-based analysis of decisions, was to breed an unwarranted skepticism about the possibilities of judicial judgment. Students may have been taken through a traditional-seeming course full of cases to read, but they [*178] learned from their teachers to regard the Supreme Court as “just another” political institution, and were tacitly encouraged either to become disdainful cynics about the Court’s work or to adopt an ideological habit of praising or condemning the Court’s rulings, depending on whether the justices’ “commitments” matched their own.

Behavioralism’s Procrustean bed may have been bad for the study of constitutional law on the latter’s own terms. But one thing it had in common with the traditional study of constitutional jurisprudence was that both schools aspired to reach conclusions about judicial decision-making that had real explanatory power. The one through the close analysis of the reasons given by the justices, and the other through the deliberate neglect of the same and a diversion of attention to other variables, both sought to give an accounting of why the Supreme Court decided cases as it did. (I do not think that the attitudinal model has had much success in this regard, but its aspiration is plain.) Taking CREATING CONSTITUTIONAL CHANGE as a model of present-day, post-behavioral public law scholarship, where are we now?

Where we are now appears to be in a school of positivists without math skills. On the one hand, there is an almost complete neglect by nearly all the authors of the competing legal arguments presented by and in the cases they discuss. (Notable exceptions are Howard Gillman on BUSH v. GORE, and Maeva Marcus on YOUNGSTOWN.) In 350 pages, there cannot be more than about fifteen pages in toto devoted to analysis of legal arguments or of the reasoning in judicial opinions. Some of the chapters read like nothing more than extended headnotes, ably recounting the background of a case and identifying the basic legal dispute that required a decision, but stopping there and leaving the reader adrift when it comes to understanding the opinions that settled the dispute. Students who believe—as they are right to believe—that the most important thing they can come to understand about the Supreme Court is the adequacy of the justices’ legal reasoning will find no real help in this book.

In the absence of traditional jurisprudential analysis, on the other hand, what generally substitutes for it here has no real explanatory power, either. Some of the authors focus on the impact of their cases, and thus are more interested in their effects than their causes. But most of the chapters should be judged by whether they bear out the claim of the editors in their “Introduction,” where Ivers and McGuire profess their view that “the justices as individuals make decisions based on personal and political preferences, and that the Court, as an institution, reacts to external pressures” (p.2). But the methods of the attitudinalist make no appearance in this book, and many of the chapters, however interesting the stories they tell, do not even attempt to provide evidence for such claims, which are simply assumed to be true. In a few chapters, suggestions of causation are made that barely rise to the level of assertion, much less of argument. For instance, we might be told of some interesting political maneuvering to bring a winnable case to the Court (as by Julie Novkov, writing of the HAMMER case, [*179] or by Amy McKay and Michael Munger, writing of INS v. CHADHA, 1983); or we might be told of the strategic submission of amicus briefs by interest groups (as by Nancy Maveety, writing of PRINTZ v. U.S., 1997, or by editor McGuire, writing of ROSENBERGER v. UNIV. OF VIRGINIA, 1995, or by Karen O’Connor, writing of HILL v. COLORADO, 2000); or we might be told of the personal attributes or backgrounds of certain justices that intersect in interesting ways with the issues in a case (as by Barbara A. Perry, writing of the Michigan affirmative action cases of 2003, or by Jennifer Segal Diascro, writing of the Virginia Military Institute case of 1996). But there is no way of knowing, from the decisions that ensued or from the tales told herein, whether the political actors, or interest groups, or personal experiences of the justices, had any determinative or causal effect on the shape of the law, or even any influence that would make serious demands on the attention of those who wish to know how “constitutional change” occurs. This reduces the book to a collection of “Just So” stories, undergirded by unexamined assumptions.

Ivers and McGuire claim that the volume represents a “more interdisciplinary approach” to the study of the Court, that they wish to “focus on the more concrete aspects” of the subject, and to “humanize the study of constitutional politics” (pp.2, 3). By “interdisciplinary,” they appear to mean narrowing rather than broadening the horizons of students, since this book studies legal matters without studying law. By “concrete,” they appear to mean the construction of entertaining narratives worthy of popular history but really explaining nothing. By “humanize,” they appear to mean an approach that eschews all attention to what is most human in the law, the application of reason to stubborn problems of justice. In my experience, this is not the way to meet “the needs and interests of undergraduate students” (p.2), who above all need, and show an intense interest in, the exercise of their minds on the knotty problems presented by living under a principled Constitution.

CASE REFERENCES:

ATKINS v. VIRGINIA, 536 U.S. 304 (2002).

BUSH v. GORE, 531 U.S. 98 (2000).

CHURCH OF THE LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S. 520 (1993).

CIPOLLONE v. LIGGETT, 505 U.S. 504 (1992).

CLINTON v. JONES, 520 US. 681 (1997).

FLOOD v. KUHN, 407 U.S. 258 (1972).

GRATZ v. BOLLINGER, 539 U.S. 244 (2003).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

HAMMER v. DAGENHART, 247 U.S. 251 (1918).

HILL v. COLORADO, 530 U.S. 703 (2000). [*180]

IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA, 462 U.S. 919 (1983).

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

PGA TOUR, INC. v. MARTIN, 532 U.S. 661 (2001).

ROSENBERGER v. UNIVERSITY OF VIRGINIA 515 U.S. 819 (1995).

UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).

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



© Copyright 2005 by the author, Matthew J. Franck.

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JUDICIAL REVIEW AND BUREAUCRATIC IMPACT: INTERNATIONAL AND INTERDISCIPLINARY PERSPECTIVES

edited by Marc Hertogh and Simon Halliday. Cambridge: Cambridge University Press, 2004. 328pp. Paperback. $39.99 / £22.99. ISBN: 0521547865. Hardback. $90.00 / £50.00. ISBN: 0521839181.

Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: polrhh@langate.gsu.edu .

pp.173-175

Marc Hertogh and Simon Halliday present an intriguing edited volume of what American scholars would refer to as court impact studies. The volume should be of interest to scholars who research and teach in the area of bureaucratic and judicial politics and will be of some use and interest in graduate courses in those areas. The articles in the volume derive from a similarly entitled workshop that occurred two years before publication of this volume bringing together scholars in law and social science from the United States, Great Britain, Australia, Canada, and Israel. The authors have read the other articles and have incorporated and responded to many of the ideas presented by them. The result is a very cohesive and organized edited volume.

The book is divided into three parts. The first section analyzes the concept of judicial review (impact) of bureaucracies and addresses issues regarding appropriate methodological approaches and research techniques for particular impact questions. The second section presents case studies of judicial impact from the United Kingdom, Canada, Australia, Israel, and the United States, while the concluding part offers directions for future analyses and research in the area of court impact on bureaucratic behavior, including the editors’ suggestions for a future integrated research agenda.

The collection begins with an essay by Peter Cane who discusses the conceptual and methodological difficulties associated with bureaucratic impact research. Cane’s chapter tackles some difficult empirical and normative questions, such as the meaning of the terms, review and impact, and why we should care. Cane argues that one cannot understand this line of inquiry without a contexualized understanding of the assumptions that underlie various judicial impact models within individual nations. The author suggests that, given the multitude of questions, contexts and definitions, it might be impossible for researchers to gather sufficient data for comprehensive empirical study.

In the second chapter, Maurice Sunkin considers some of these conceptual issues, and he attempts to determine what is meant by impact research. That is, do we look at the impact of litigation, of judgments, or of some normative values and principles? Then, what observations are relevant to assessing whether and to what extent impact has occurred—e.g, changes in organizational structure, in decision-making, in management processes? Sunkin then examines the various methodological [*174] approaches that have been used by scholars engaging in such research.

Empirical political scientists with an interest in these issues might find the first two chapters intriguing and thought provoking, but not necessarily helpful to their own research. Scholars generally prefer a particular methodological approach and have decided what kinds of data are most relevant to the problem. It is the third chapter, written by Bradley Canon, that American political scientists likely will find most interesting. Canon presents a useful summary of many, but not all, of the important impact studies and provides references to other more comprehensive ones. Consequently it is a useful starting point for graduate students interested in the major research in this field. The chapter also offers a template for American political scientists who study courts and impact, demonstrating how the process moves from bureaucratic interpretation, to response, and finally to implementation.

The second part of the volume consists of case studies from five countries – the United Kingdom, Canada, Australia, Israel, and the United States – focusing on judicial rulings and subsequent bureaucratic responses. All are interesting and represent a range of the different types of judicial impact studies, but the reader might have a particular country of interest, and one can read the first and last parts (and selectively between) of the edited collection, without diminishing the volume’s value.

Genevra Richardson, for example, in Chapter Four surveys existing impact literature in the United Kingdom and presents the author’s own case study of the decision making of the Mental Health Review Tribunal, which reviews the legality of patients’ detention for mental disorder assessment. Richardson argues that judicial determinations compete with other value systems for influence, thus representing a form of judicial impact.

Lorne Sossin, in Chapter Five, continues the case study approach, assessing three sets of observations, one involving social welfare legislation, another concerning immigration, and the third on obscenity standards, to examine the impact of what the author defines as “soft law.” Soft law consists of rules, policies and guidelines that are the means by which court decisions and standards are communicated to street level decision makers, and in turn become a channel of communication from personnel and agencies back to the courts.

In the third study, Robin Creyke and John McMillan survey those affected by judicial decisions to gage impact on subsequent bureaucratic responsiveness over a ten year period in Australia. This innovative and instructive study finds that, in a majority of cases, court rulings helped individual litigants in their disputes with an agency and several decisions did change overall administrative behavior in later cases.

The fourth and fifth case studies investigate court impact on bureaucratic behavior in Israel and the United States. Yoav Dotan’s fascinating study examines the Israeli Supreme Court’s responses to the use of torture against suspected terror suspects. The Court moved in phases—first it avoided the issue; then it delivered after-the-fact rulings with little or no impact; and finally the court issued a clear decision [*175] banning such torture, a ruling that was followed by immediate compliance. In the last country analysis, Malcolm Feeley examines judges in three states (Arkansas, Texas and California), who, with the aid of a special master, became successful administrators of prison reform.

All the studies in this section are worthwhile; however, I think it would have been useful if at least one author had used a large n, multivariate analysis as a complement to those presented. Multivariate models have provided significant evidentiary support to several of the case studies in these chapters. For example, Richardson’s conclusions are supported by several scholarly works comparing congressional versus executive influence in the United States that have incorporated a court component as control measure, showing clear (if limited) judicial influence on bureaucratic behavior. Dotan’s analysis is supported by studies demonstrating that greater clarity in Supreme Court opinions enhances bureaucratic compliance.

The final section of the book contains two essays, one by Martin Shapiro, and the other by the editors. Shapiro considers the rise of the European Union and predicts that administrative law in the EU will likely develop to resemble the American system, with more litigated, as opposed to negotiated compromise outcomes, and with judicial solutions replacing decisions premised on bureaucratic expertise. In their summation chapter, editors Hertogh and Halliday, contend that future judicial impact literature will have to take into account the ideas and theories raised throughout book and recommend the use of integrated methodological and comparative models.

Overall the book is a worthwhile addition to the judicial impact literature. It would have been a nice addition to have included one large-scale systematic study, but this does not detract from the overall value of the collection. In general, the essays fall short of the editors’ call for integration of these various approaches. I say this because significant and important work has been done that does not apply integrative approaches, nor does one have to adopt an integrative approach to do significant scholarly work in the future. The field is sufficiently vast to accommodate investigation of judicial impact of all sorts. Nonetheless, scholars who study in this area will find the volume a worthwhile addition to their libraries, even if the book falls a bit short of the editors’ claim.



© Copyright 2005 by the author, Robert M. Howard.

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AMERICA’S LAWYER-PRESIDENTS: FROM LAW OFFICE TO OVAL OFFICE

by Norman Gross (ed). Evanston, Illinois: Northwestern University Press & the American Bar Association Museum of Law, 2004. 384pp. Hardcover. $39.95. ISBN: 0-8101-1218-3.

Reviewed by Matthew S.R. Bewig, Department of History, University of Florida. Email: mbewig@history.ufl.edu.

pp.170-172

Prosopography, “the investigation of the common background characteristics of a group of actors in history by means of a collective study of their lives” (Stone 1972, p.107), involves a comparative analysis of common data points regarding the subjects under study. Scholars have used this method to study leadership elites, for example in ancient Rome and modern Britain, as well as members of less elite social groupings. More broadly construed, prosopography has long been a popular method for presenting information about the Presidents of the United States. These serial collective biographies, however, have often sacrificed intellectual rigor and critique on the altar of mass popularity, reducing prosopography to hagiography (or, hero worship) in the process. The difficulties inherent in preparing a Presidential prosopography for a popular audience are manifest in AMERICA’S LAWYER-PRESIDENTS, a collection of essays regarding the twenty-five Presidents who were also lawyers. The result is a somewhat generally good collection of essays, most of which present a balanced assessment of their subject, but a few of which elide topics that might shed negative light on the lawyer-president under consideration.

Nevertheless, given the fact that so many of our Presidents were lawyers – twenty-five out of forty-three overall (58%), and eighteen out of twenty-four from the beginning to 1900 (75%) – this book fills an important niche in presidential studies. Divided into five chronological periods, the book opens with “Founding Fathers and Sons,” covering the Lawyer-Presidents from John Adams through John Quincy Adams, and ends with “The Modern Presidency,” which treats Presidents Nixon, Ford, and Clinton. Abraham Lincoln merits a section, comprised of two essays and a lecture on law practice that Lincoln drafted but never delivered, devoted entirely to his career. A final part sets forth two essays on the Supreme Court appointments and Attorneys General of the Lawyer-Presidents. Editor Norman Gross, who is Director of the ABA Museum of Law in Chicago, has assembled an impressive group of scholars to write the individual essays, including historians, law professors, political scientists, archivists, and practicing attorneys. Eminent legal historian Lawrence M. Friedman has contributed five concise essays that open the chronological sections and describe changes in legal education, law practice and legal culture generally. Justice Sandra Day O’Connor has provided a brief Foreword.

The 4,000 word essays, which are of varying quality, generally proceed along similar lines. Following a brief recital of [*171] family background and key childhood events, the chapters focus on the subject’s legal training, law practice, and political career, and then proceed to discuss what effect, if any, the lawyer-president’s legal vocation had on his presidency. Several of these essays are exemplary. James Henretta’s essay on Martin Van Buren argues that while Van Buren’s autobiography minimizes the importance of his legal career, which appears to have had little impact on the poor quality of his Supreme Court appointments, the nature of Van Buren’s political thinking and conduct “embodied the evolutionary, precedent-oriented logic of the common law” (p.69). Elbert Smith’s chapter on Millard Fillmore provides a nuanced and empathetic portrait of our thirteenth President. Jean Baker’s essay on James Buchanan argues that his failure to manage or contain growing sectional strife, including his attempt to have Congress recognize the pro-slavery Lecompton Kansas Constitution and his inaction during the secession crisis of 1860-61, were largely a result of his narrowly legalistic approach to constitutional issues. Paul Finkelman argues persuasively that Abraham Lincoln’s handling of cases relating to slavery, as well as his ongoing representation of a free black client, played an important role in the gradual evolution of his thinking regarding slavery and racial equality. Ari Hoogenboom demonstrates how Rutherford Hayes’ experiences as a criminal defense lawyer led him to oppose the death penalty and advocate penal reform. Melvyn Dubofsky provides a judicious assessment of William H. Taft’s strengths and weaknesses as President and Chief Justice of the United States. These essays share a sensitivity to the relationship between legal work and political activity, as well as a frank willingness to discuss the limitations of these lawyer-presidents.

At the same time, however, several essays adopt the unfortunate strategy of evading facts that shed negative light on their subjects. L. Kinvin Wroth’s essay on John Adams, for example, makes a persuasive argument that Adams’ study of civil law jurisprudence laid the foundation for arguments he would make against British attempts to undermine trial by jury, as well the case for Independence. Yet, in his zeal to canonize Adams, Wroth elides Adams’ role in the passage and enforcement of the Alien and Sedition Acts of 1798, stating only that Congress passed them but omitting the fact that Adams signed and enforced them. The Alien Act authorized the government to deport immigrants considered “dangerous,” while the Sedition Act made it a crime to “falsely” criticize the government or a government official. The Alien Act was constitutionally suspect, and the Sedition Act surely violated the First Amendment. In a book concerning the relationship between law and politics, the evasion of Adams’ willingness to endorse and prosecute a patently unconstitutional law is curious indeed.

David S. Heidler and Jeanne T. Heidler’s essay on Andrew Jackson sets forth a lively and illuminating discussion of Jackson’s early legal career, yet omits any specific discussion at all of the important constitutional issues that Jackson confronted during his Presidency, such as his vetoes of the Maysville Road Bill and of the Second National Bank, and his overt refusal to [*172] enforce the Supreme Court’s ruling in WORCESTER v. GEORGIA (1832). The last is a particularly shameful episode, both of Jackson’s presidency and of American history in general. In WORCESTER, the Court held that Georgia legislation asserting its control over the territory and people of the Cherokee Nation contradicted treaties of the United States and hence was unconstitutional. Jackson simply refused to enforce a proper ruling of the Supreme Court, and the end result was the destruction of the Southeastern Native American Nations in the Trail of Tears. Similarly, Irwin F. Gellman’s essay on Richard Nixon does a fine job of describing Nixon’s legal education and career, yet evades his criminal culpability for the Watergate scandal that destroyed his presidency by focusing exclusively on the hotel burglary, of which Nixon may not have had foreknowledge, and omits discussion of the cover up, which Nixon helped to orchestrate.

Perhaps the greatest flaw of this book, however, is the lack of true prosopographic analysis of the lawyer-presidents as a group. While the essays on the individual lawyer-presidents are generally quite good, there is no attempt to reach general conclusions about the relationship between legal training and practice and their presidencies. The book does not ask or answer the question of whether the lawyer-presidents differed from the non-lawyer-presidents in any significant way or degree. Perhaps this work, by focusing attention on lawyer-presidents as a group, will inspire others to seek answers to such larger questions.

Such are the pitfalls of popular presidential prosopography. Given its narrative style and lack of footnotes, the intended audience of this book is not academic but rather those attorneys interested in history or history buffs in general. It might also be useful in an undergraduate course on the presidency or on legal history. Though some of the essays fail to face up to the flaws of their subjects, in general this book is a needed first exploration of the relationship between law practice and the presidency.

REFERENCES:

Stone, Lawrence. 1972. “Prosopography,” in Felix Gilbert and Stephen Graubard (eds). HISTORICAL STUDIES TODAY. New York: Norton, 107-140.

CASE REFERENCES:

WORCESTER v. GEORGIA, 31 U.S. 515 (1832).



© Copyright 2005 by the author, Matthew S.R. Bewig.

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