INJUSTICE FOR ALL: MAPP VS. OHIO AND THE FOURTH AMENDMENT

by Priscilla H. Machado Zotti. New York: Peter Lang, 2005. 224pp. Paper $22.95. ISBN: 0-8204-7267-0.

Reviewed by David S. Mann, Department of Political Science, College of Charleston. Email: mannd@cofc.edu

pp.382-385

I will divide this review into four components, thinking all the while as an undergraduate professor of “con law.” First, I will summarize what we all (probably) know about MAPP v. OHIO. Second, I will highlight what some or most of us know about the case that maybe we have time to mention succinctly in class when we discuss it. Third, I will applaud the author for discussing what few of us know about the circumstances of the case. Finally, perhaps what needs to be addressed most concerns the immediate present and future, in some sense the long-term consequences of MAPP v. OHIO.

How often, especially in an undergraduate course, do we go over cases so quickly that the entire summary can be written on a 5 x 8 card? To wit: Investigating evidence about a bombing that had taken place, police sought entrance into the home of Dollree Mapp, who denied their entrance unless the police produced a search warrant. A “warrant” was waved to her, and she grabbed it and placed it in her bosom, where officers retrieved the paper and handcuffed her. Police found “lewd and lascivious books, pictures, and photographs,” possession of which were in violation of Ohio statute. She was arrested, tried, and convicted. No warrant was produced at trial. She appealed. Ohio courts affirmed conviction. She appealed to the Supreme Court. And then we discuss the issue raised by the Court majority and summarize the opinions. What do we miss when we use this rather typical method of describing the path of the law to our students?

That question is what may entice us to require students to read a case study, whether it be Westin (1958) or Craig (1988) in Constitutional Law, Lewis (1964) or Pohlenberg (1987) for Civil Liberties, or a variety of other well documented case studies. We do this to show students what they would otherwise miss and to develop a personalized reference point for students and for ourselves. Our bland review of cases, like the one above, inescapably and sometimes mistakenly omits a vital component in case law. When we ever so briefly indicate who the parties to a case were, we miss the opportunity to truly know not only the immediate parties to the case but other background that would allow us to understand the case in its entirely.

In MAPP, the most intriguing character to Priscilla Zotti is the police investigator, Carl Delau. The author spends almost an entire chapter, overwriting perhaps, officer Delau’s life story. The relevance of officer Delau I will describe shortly. However, to me the most intriguing character is neither officer Delau nor Dolleee Mapp, to [*383] whom the author pays some but not as much attention. Don King, yes, the now famous or infamous (depending on your attention to sports) boxing promoter to me is the surprise character in this case drama. Whenever I talk about this case, I mention Don King (note: the author refers to him most often as Donald King; no one knows Donald King; but just about everybody in class knows who Don King is; their visual image is typically “the hair”).

I applaud Zotti for describing in detail how these characters, and others were involved in either running or investigating the “numbers racket” in 1950s Cleveland. This is what fewer of us know (I did not, until I read the book). The “numbers racket” leaders were feuding. Don King was among those who were trying to wedge themselves into the “game.” His house was bombed. Police believed that Mapp, who ran numbers, had either evidence of the bombing or was hiding a person in her home who knew about, or maybe committed, the act.

Now we are getting somewhere. While some of us know that police may have been searching for such evidence in Mapp’s home, few might know the details about how the numbers racket worked in Cleveland of the 1950s, brought out in this book. Some readers might be curious enough to acquire and read the book for themselves. I found this part of the book to be fascinating. There is more.

For instance, few of us might be aware that the focus of Mapp’s trial and appeals were not the “warrantless” search. Most of the arguments and briefs concentrated on the vagueness of the Ohio porn possession statute. Still fewer might know that warrantless searches were the typical way that police engaged in investigations, given the outcome in WOLF v. COLORADO (1949). Zotti writes: “The actions of the police on May 23rd appear to be standard and no more aggressive or invasive than the commonly accepted practice” (p.77). “All took it for granted that the paper brought to the scene by Lieutenant White was an official search warrant to conduct a search of Dollree Mapp’s home for a material witness in the King bombing and for potential possession of gambling paraphernalia” (p.22). So we find that in Cleveland in the late 1950s, a warrant may or may not be among the typical police procedures. We find that there may or may not have been a true warrant at all. The police were proceeding as they always would proceed in the 1950s, given WOLF. Professor Zotti’s documentation not only includes newspaper accounts, trial and appeal documents, but also personal interviews with Officer Delau and Ms. Mapp, among others. Readers get the message that Officer Delau was trying to solve the bombing crime and perhaps obtain evidence about the numbers racket. That officers found alleged porn had nothing to do with either.

Zotti walks us through several rather short chapters on the trial, Ohio appeals, and Supreme Court oral argument. Best is the chapter on the opinion writing, where Zotti documents from collected papers, docket books, memos, and rough draft opinions. This chapter provides readers/students with a great example of how the Court really works: the coalition building, the ideological dispositions of the justices, the give and take of draft opinions. The draft [*384] opinions are not reproduced, as they are so seldom, leaving this reviewer to wonder if the book would have been better if an editor or publisher made the commitment to the additional pages.

Another chapter of note is Zotti’s history of the Fourth Amendment. Again, nicely researched, this discussion is a great example of the historical approach to constitutional understanding. She begins with Cicero and takes readers to a place I had never been. My reading of the chapter suggests that the Fourth as drafted and amended by Congressman Benson was actually voted down: “it appears, Benson reinstated his version which had previously been voted down by the Committee of Eleven” (footnote and emphasis omitted, p.57). No one noticed. The key word to a complete understanding (or misunderstanding) of the Fourth Amendment is the word and, as in “and no warrants shall issue.” Though written like a part of a dissertation, and located after the search and personal history of Officer Delau and Ms. Mapp and before the trial discussion, I nevertheless liked this chapter and learned a lot.

Some case study books briefly consider the case and explore the aftermath in great detail. Some do the opposite. Professor Zotti made a good choice to focus on the people and the case and leave most of the aftermath discussion to case law books on criminal procedure, where we all know that courts have been tweaking MAPP v. OHIO ever since its announcement. She devotes a little more time on the people and where they are now, even spending a paragraph or two on Don King. A footnote is interesting to quote: “Delau knew Officer Marty McFadden, the police officer involved in another famous Cleveland search and seizure case, TERRY VS. OHIO (1968). The two had discussed their fame or infamy, and both agreed that what occurred in Washington, while significant, felt remote at the time of the decision. Neither was ‘watching’ the Court in anticipation of a decision” (p.156, fn.2). Mapp, who was at the Court for oral argument, was eventually arrested, tried, and convicted for possession of heroin and served nine years. The author also wrote about the immediate press reactions to MAPP, which I had never seen before. Though the book has a 2005 copyright, there is no reference at all, even in passing, on my last thought that reading this book provokes.

We all know the outcome of MAPP, and how the Supreme Court’s ruling changed everything for police investigators and in fact for judges, who now as a matter of routine sign (or not) search warrants. Unless we start thinking about the USA Patriot Act. Should the threat of terrorism permit searches where warrants have been held in abeyance, under Section 213? Is the mandated Congressional oversight of such searches taking place? Should we fear that the content of our e-mails, lists of books that we have purchased, and phone calls that we have made to, hypothetically or not, relatives that we might have in the Middle East, are being examined under the auspices of the Patriot Act without a warrant, as Section 215 seems to suggest? Is that what we want?

REFERENCES:

Craig, Barbara Hinkson. 1988. CHADHA: THE STORY OF AN EPIC CONSTITUTIONAL STRUGGLE. Berkeley, CA: University of California Press. [*385]

Lewis, Anthony. 1964. GIDEON’S TRUMPET. New York: Vintage Press.

Polenberg, Richard. 1987. FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH. New York: Penguin Books.

Westin, Alan F. 1958. THE ANATOMY OF A CONSTITUTIONAL LAW CASE: YOUNGSTOWN SHEET & TUBE CO. V. SAWYER: THE STEEL SEIZURE DECISION. New York: Macmillan.

CASE REFERENCES:

MAPP v. OHIO 367 U.S. 643 (1961).

TERRY v. OHIO 392 U.S. 1 (1968).

WOLF v. COLORADO 338 U.S. 25 (1949).



© Copyright 2005 by the author, David S. Mann.

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THOUGH THE HEAVENS MAY FALL: THE LANDMARK TRIAL THAT LED TO THE END OF HUMAN SLAVERY

by Steven M. Wise. Cambridge, MA: Da Capo Press, 2005. 282pp. Hardcover. US$25.00/CDN$34.95. ISBN 0738206954.

Reviewed by James C. Foster, Department of Political Science, Oregon State University—Cascades. Email: James.foster@osucascades.edu

pp.460-464

Among the challenges historians face in pursuing their craft is choosing from the multiple, interrelated experiential strands arrayed across time, where to pick up the particular story chosen from among stories and, perhaps most importantly, what to make of the specific tale told. By plucking an episode (or string of episodes) out of the durée that is lived experience—the flowing river of life invoked so compellingly by Henri Bergson (1859-1941)—the historian at once defines and defiles. When done well, the trade-off is amply worthwhile: adroit historians illuminate as they inevitably displace. But “thinking backwards” (Moore) is fraught with peril. Steven Wise’s book exemplifies both the accomplishments and pitfalls of doing history. One the one hand, he has written a captivating account of SOMERSET v. STEUART—one “landmark” trial in the multifarious, ongoing struggle against slavery. On the other, his book is akin to what Benjamin R. Twiss, in 1942, referred to as “lawyers’ history” in its tendency to abstract, as it celebrates.

First, the good news.

Steven Wise brings alive the story of the contest that resulted in James Somerset “she[dding] his legal thinghood and [becoming] legally visible” (p.ix). SOMERSET v. STEUART was a monumental trial in 1772. It remains a monumental story today. Wise does it justice. His account reminds us of the acute inhumanity of slavery, quoting Shakespeare to good effect in The Merchant of Venice (act IV, scene I):

You have among you many a purchas’d slave,

Which, like your asses, and your dogs, and mules,

You use in abject and slavish parts,

Because you bought them.

He richly contextualizes his SOMERSET story by tracing the arc of enslavement in England through three “wave[s] of English unfree” (p.13), from early Anglo-Saxon times, through villeinage until the end of the sixteenth century, and the introduction of black slavery in the 1560s. The third wave saw a twenty-year-old black African being brought to England from America by his owner Charles Steuart in November, 1769. The young man’s past is invisible:

We don’t know his African name, his mother’s name, or his father’s, or whether he had siblings. We don’t know where he was kidnapped or how. If he was like many of the 10 or 11 million Africans who would be forced across the Atlantic, he spoke Bantu, and he was small. . . . [H]e survived a Middle Passage so harrowing that sharks, waiting for bodies to be pitched over the sides, often trailed Guineamen [British slave ships] across the Atlantic, and were rarely disappointed (p.1). [*461]

James Somerset ran away from his owner in October, 1771. He was at liberty for fifty-six days until the slave-catchers Charles Steuart hired to track Somerset down found him, shackled him, and threw him on the ship Ann and Mary. The Ann and Mary was scheduled to sail for Jamaica where Steuart had ordered John Knowles, the ship’s captain, to sell Somerset into labor in the notoriously hellish, and for slaves deadly, British West Indies’ sugar plantations. Here James Somerset’s story takes a decisive turn. (About whether the same can be said of human slavery per se, more below.)

James Somerset was spared likely death as a cane field worker because three largely anonymous Londoners—Elizabet Cade, John Marlow, and Thomas Walkin (Wise identifies them as Somerset’s “godparents”)—applied to Murray William, Lord Mansfield for a writ of habeas corpus ordering Captain Knowles to surrender Somerset to the jurisdiction of the Court of King’s Bench. Knowles’ compliance with this writ set the stage for a series of legal “tests” (Chaps.5, 6, 8 & 9) culminating in Lord Mansfield’s SOMERSET decision. “At the turn of the eighteenth century,” Wise observes, “the English law of black chattel slavery was in chaos” (p.27). By the same token, “the constant practice of the Court of King’s Bench under Lord Mansfield [was to persist] strenuously . . . in delivering up all runaway slaves to their master” (p.30). Still, “[t]he Chief Justice . . . possessed an independent mind, and he was no one’s servant” (p.80).

Absorbing yarns, conventionally told, need heroes. Such tales also require villains. The hero of Wise’s account is Granville Sharp. Sharp was an abolitionist. He was possessed, like Wise himself, with an abiding belief in law; in Sharp’s case, moral law. He was “inclined to make the law what perhaps it should be” (p.33 quoting lawyer Daines Barrington on Sharp). A “religious bigot” (p.34), a pacifist, accomplished musician, and autodidact, Sharp was convinced that “[i]f the most prominent lawyers and judges of England accepted the legality of human bondage, they would have to change their depraved opinions and he would show them why” (p.33). And, indeed, he did. He did so in the face of opposition by two reputedly most distinguished attorneys in the Realm (John Dunning and James Wallace) and despite the “deep-pocket” financing of West Indies sugar plantation interests who backed Charles Steuart—the villains. For example, Dunning, without a trace of shame or irony, argued to the three puisne (associate) judges and Lord Mansfield that Somerset’s enslavement was punishment for property crimes he committed (when he was eight!), and “compared the relationship of master and slave to that of husband and wife” (pp.167-168). To these and other arguments on Steuart’s behalf, a unanimous Court of King’s Bench replied, on June 22, 1772, that slavery “is so odious that nothing can be suffered to support it but positive law [and because it cannot be said] this case is allowed or approved by the law of England[,] . . . therefore the black must be discharged” (p.182). Lord Mansfield had telegraphed this decision a month earlier when, after taking the case under advisement due to the parties insistence that the Court decide the matter, he had said to a reporter “if the parties will have [*462] judgment, ‘fiat justitia, ruat cœlum (let justice be done though the heavens may fall)” (p.173).

Engaging storytelling does not necessarily good history make.

Above, I quoted Wise in his Preface: “James Somerset shed his legal thinghood and became legally visible . . . (p.ix). Wise finishes that sentence: “. . . and that was the beginning of the end of slavery” (p.ix). Would that Wise were right. The history of ending human “slavery” is neither as simple, nor as legalistic nor, for that matter, as conclusive as Wise’s version suggests. In mid-May of this year, for example, an article in THE NEW YORK TIMES reported that in Britain “300 . . . black boys 4 to 7 years of age were missing or were unaccounted for,” a disclosure that “may have cast a rare spotlight into a secretive world of child trafficking that the authorities seem unable to control or prevent” (Cowell 2005; cf. Kristof 2004).

Wise appears to want to tell his story both ways: making more of SOMERSET than the subsequent brutal reality of slavery supports, while seeming to understand the decision’s limited scope. Of Lord Mansfield, Wise writes: he “had long been torn by the odiousness and plain immorality of English slavery and the obvious fact that the slave trade enormously benefited British merchants and planters as well as the Crown” (p.210). Nevertheless, Wise closes his book proclaiming that SOMERSET “proved just the opening salvo in a legal barrage that, within a century, splintered all of human slavery’s bulwarks” (emphasis added) (p.225). Only a lawyer-historian could make that statement. SOMERSET did not even begin to end slavery in the British West Indies. A century after Lord Mansfield expressed his fear that “the heavens may fall” that particular Hell continued to prosper, copiously consuming the lives of black slave laborers. Although SOMERSET v. STEUART figures as part of the ongoing struggles against human slavery, it no more unraveled that “system in which human beings were regularly sold, bred, and distributed like beasts” (p.223, quoting John T. Noonan) than John Brown “killed” (Reynolds 2005) slavery in the United States.

While reading Wise’s book, I kept thinking about Derrick A. Bell’s interpretations of BROWN v. BOARD OF EDUCATION. In stark contrast to Wise’s recourse to a neo-Carlylian “Great Man Theory of History,” and his tendency to conflate declaring law with social justice, Bell’s take on BROWN is structural and shorn of illusions (Bell, 1976, 1980). Contrast Wise’s quaint take on Lord Mansfield’s opinion as “a wallop to the [slave] system from which it never recovered” (p.223) to Bell’s explanation of why he would have dissented in BROWN:

We need a new policy compass, one that recognizes and incorporates the fact that many whites are all too ready to sacrifice their economic and political interests in causes they view as protecting their entitlement to what so many assume is a vested property right in whiteness (Balkin 2002, at 206; cf. Bell 1992).

If LPBR readers are looking for an entertaining read, pick up Wise’s book. For more expansive insight into the social realities of law and black African slavery—especially in the American [*463] context—look elsewhere (for starters: Donnan 1930-1935; DuBois 1965; Franklin and Moss 2000; Hurd 1858-1862; Morrison 2004; Phillips 1918).

REFERENCES:

Balkin, Jack M. 2002. WHAT BROWN v. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERETS REWRITE AMERICA’S LANDMARK CIVIL RIGHTS DECISION. New York, NY: New York University press.

Bell, Derrick A. 1976. “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation.” 85 YALE L.J. 470.

Bell, Derrick A. 1980. Comment, “Brown v. Board of Education and the Interest-Convergence Dilemma,” 93 HARVARD L. REV. 518.

Bell, Derrick A. 1992. FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM. New York, NY: Basic Books.

Bergson, Henri. 2001. TIME AND FREE WILL: AN ESSAY ON THE IMMEDIATE DATA OF CONSCIOUSNESS. New York: NY: Dover.

Cowell, Alan. May 15, 2005. “300 Missing Boys in Britain Fuel Child-Trafficking Fear.” http://www.nytimes.com/2005/05/15/international/europe/15missing.html.

Donnan, Elizabeth (ed). 1930-1935. DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF THE SLAVE TRADE TO AMERICA (4 vols). Washington, D.C.: Carnegie Institution of Washington.

Du Bois, W.E.B. 1965. THE SUPRESSION OF THE AFRICAN SLAVE-TRADE TO THE UNITED STATES OF AMERICA, 1638-1870. New York, NY: Russell & Russell.

Franklin, John Hope and Alfred A. Moss, Jr. 2000. FROM SLAVERY TO FREEDOM: A HISTORY OF AFRICAN AMERICANS. New York, NY: Knopf.

Hurd, John C. 1858-1862. THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES (2 vols). Boston, MA: Little, Brown.

Kristof, Nicholas D. January 21, 2004. “Bargaining for Freedom.” THE NEW YORK TIMES. Section A, p. 27, column 6.

Kristof, Nicholas D. January 28, 2004. “Loss of Innocence.” THE NEW YORK TIMES. Section A, p. 25, column 5.

Kristof, Nicholas D. January 31, 2004. “Stopping the Traffickers.” THE NEW YORK TIMES. Section A. p. 17, column 1.

Kristof, Nicholas D. January 15, 2005. “Cambodia, Where Sex Traffickers Are King.” THE NEW YORK TIMES. Section A, p. 15, column 1.

Kristof, Nicholas D. January 19, 2005. “Leaving The Brothel Behind.” THE NEW YORK TIMES. Section A, p. 19, column 6. [*464]

Kristof, Nicholas D. January 26, 2005. “After The Brothel.” THE NEW YORK TIMES. Section A, p. 17, column 5.

Kristof, Nicholas D. January 29, 2005. “Sex Slaves? Lock up The Pimps.” THE NEW YORK TIMES. Section A, p. 19, column 1.

Moore, F.C.T. 1996. BERGSON: THINKING BACKWARDS. Cambridge, England: Cambridge University Press.

Morrison, Toni. 2004. BELOVED. New York: NY: Vintage.

Phillips, Ulrich Bonnell. 1918. AMERICAN NEGRO SLAVERY: A SURVEY OF THE SUPPLY, EMPLOYMENT AND CONTROL OF NEGRO LABOR AS DETERMINED BY THE PANTATIN REGIME. New York, NY: D. Appleton.

Reynolds, David S. 2005. JOHN BOWN, ABOLITIONIST: THE MAN WHO KILLED SLAVERY, SPARKED THE CIVIL WAR, AND SEEDED CIVIVL RIGHTS. New York, NY: Knopf.

Twiss, Benjamin R. 1942. LAWYERS AND THE CONSTITUTION: HOW LAISSEZ FAIRE CAME TO THE SUPREME COURT. Princeton, NJ: Princeton University Press.

CASE REFERENCES:

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

SOMERSET v. STEUART, 20 Howells State Trials 2 (1772); also reported as SOMERSET against STEUART, 98 Eng. Rep.499 (K.B. 1772).



© Copyright 2005 by the author, James C. Foster.

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THE LOGIC OF CONSENT: THE DIVERSITY AND DECEPTIVENESS OF CONSENT AS A DEFENSE TO CRIMINAL CONDUCT

by Peter Westen. Burlington, VT: Ashgate Publishing, 2004. 392pp. Hardback. $119.95 / £62.50. ISBN: 0-7462407-2.

Reviewed by Marc-Georges Pufong, Department of Political Science, Valdosta State University, Valdosta, Georgia. Email: mpufong@valdosta.edu .

pp.370-375

With emphasis on the contingent nature and relation to justice and power, THE LOGIC OF CONSENT is both substantively and stylistically a welcome addition to the collection of Law, Justice and Power series edited by Austin Sarat of Amherst College. The intent and purpose of the book is to displace the unstated assumption all too common that people readily understand what consent means in common parlance, or at the very least, they understand its implications in criminal law situations where its matters most.

In tackling consent, Peter Westen provides proof of its importance as a concept in Anglo-American legal jurisprudence. He sees the concept of consent as all too often assumed to be obviously understood, and thus argues that the notion that there is a shared assumption of its meaning is indeed, seriously misplaced. The book therefore is an exercise of conceptual analysis in an effort to clarify the meaning of consent, and most notably, its meaning in the criminal law context (p.1). In doing so, Westen seeks to locate and identify the many forms of consent and the diverse consequences that its differing meaning, forms and use entails.

A cursory examination of Anglo-American statutory law reveals an impressive index of consent laws, none of which states with any precision what consent really means. The obvious fallacy therefore is that the courts can, and must determine whether consent has occurred in a given set of facts even if there is little agreement to what consent is all about. To explicate the complexity of consent as a legal concept, Westen engages the reader in a thorough and careful analysis of the various meanings of consent in criminal law. He frames subtle but important issues within logical contexts to explain what he sees as confusion of consent.

Westen considers a wealth of real world consent case examples to flesh out his narrative and assessment. Add to that, the fact that all 50 states in the US have enacted some form of general or specific consent statute makes Westen’s effort a unique undertaking. In an often employs first-person narrative style, he dissects the concept of consent into three intricate parts—the factual, the legal, and the consequence of conceptual complexity. In all, the book contains three main parts that include eight chapters, a conclusion, a bibliography, a general index, and an index of cases.

In Part I, “Factual Consent,” Westen presents two chapters that draw attention to how “consent” is conceptualized with a notable focus on the actual problem of factual acquiescence in a given context [*371] (pp.1-103). He begins his narrative with analysis of various arguments commonly advanced to grapple with the concept of “consent” in the criminal law context. For starts, Westen sees the confusion regarding consent as endemic. He points to the failure of legislatures to understand the very unique nature of “consent” when drafting consent laws. Moreover, he sees judges who interpret those laws, and scholars and commentators who hold passionate positions on consent, as contributing to further misunderstandings.

The failure to have a conceptual handle on consent, he argues, accounts for significant difficulties, especially within the context of criminal law. For example, the inability to distinguish or disentangle the diverse and often mutually exclusive strands of consent in-lieu of single event views is often a key problem in consent issue. Thus, Westen sees consent as having three types of reference that supply different events used in law. They include factual versus the legal, the attitudinal versus the expressive, and the prescriptive versus the imputed, all of which Westen intimates, form the basis of their normative confusions (p.50).

To illuminate the normative confusion, Westen points to the frequent disagreements among advocates of rape reform about the relationship between “consent” on one hand, and “force” on the other, signified by the differences in perspective of those who argue for enhancing the autonomy of women through rape reform versus those who reject consent, arguing that the focus should be on prohibition of force. Susan Estrich and Catherine Mackinnon are notable advocates representing the two positions. To Westen, the very real differences between the two are their distinct conceptions of consent and force. If any difference exists at all, then it is because of poor understanding of the nature of interpersonal relationships. In essence, poor understanding is enough reason to create the false impression of normative disagreement as well as false impression of normative consensus. Thus, Westen argues for a conceptualization that effectively clarifies how we think and converse about the normative view of consent than to advocate change in people’s normative views. Through this conception, Westen sees consent as co-existing in two forms, single and “generic.”

In its generic stand, Westen sees consent as including all instances in which a person is deemed to acquiesce to or choose for themselves what other persons do to them. But he sees consent as also capable of being reduced to an understanding of choice that entails discrete notions of what it is to acquiesce to something. In either case, he argues that boundary and configuration problems exist. Thus, Westenian consent derives its conceptual power from its relationship between its generic and specific forms. First, Westen sees the generic consent as having scope and range. The range encompasses every instance in which a person acquiesces, whether in actual fact, hypothetically, or constructively. Second, the specific conception of consent gives it particularity, thereby identifying subsets of acquiescence. However, since the interplay between consent’s generic and specific forms also creates confusion, Westen cautions that the key to thinking [*372] clearly about consent lies ultimately in understanding its various conceptions.

Westen also sees consent as consisting of a core conception from which other notions of consent derive. He argues further that those derivatives also incorporate the core conception in the way that nesting dolls include smaller inner-dolls as well. So while some derivative conceptions simply make necessary reference to the core without actually incorporating it, others constitute fictions of the core conception. It follows that, while each differs from the others, together they constitute the totality of what, in fact, it means to consent in criminal law.

Westen sees the core conception of consent as consisting of a factual state of mind of acquiescence. This includes the subjective feeling that one experiences internally (on a first person basis) as opposed to something manifested externally (in the third person). In effect, consent in the latter sense is a state of mind of acquiescence or willingness to agree with – or best yet, to choose what another person seeks or proposes. In practice, this would be the equivalent of an implicit consent or approval that may be translated as “a welcoming state of consent” rather than an “explicit expression” of factual consent or overt declaration of acceptance.

Regarding the latter expression of factual consent and unlike the mental state of mind or the subjective attitude counterpart, Westen is referring to objective words and conduct, one that expresses a choice. Here an expressive consent is said to be a conceptual derivative of the attitudinal consent since it makes reference to the latter. Put differently, expressive consent, according to Westen’s articulation is the subjective attitude of acquiescence. In practice, this means that a person can express a mental state that does not correspond to her subjective feeling, and vise versa. Accordingly, other corresponding strands of consent include legal consent, prescriptive consent, and imputed consent, all of which incorporate factual elements of consent as well.

Having examined the factual aspects of consent from a conceptual level and laying a logical ground work for conceptualizing consent in Part I, Part II, consisting of five chapters focuses on “Legal Consent.” This portion of the book addresses varieties of “consent conceptions” by subject matter relative to a “subject’s” conduct that constitutes a criminal defense. The chapters include legal consent as a state of mind, legal consent as an expression of a mental state, prospective and retrospective forms of each, and the fictions of each. Most American jurisdictions define legal consent as a mental state, but it is not clear that our ordinary language of consent can be reduced to a mental state. While Westen takes no position on justice or injustice that may ensue from any particular definition and use of legal consent, he assesses the common elements that contested judgments of legal consent possess. For example, in Chapter 3 he draws attention primarily from law of rape to illustrate features that are common to prescriptive and imputed consent (pp.111-138).

In Chapter 4, Westen examines whether the normative force of prescriptive consent can be predicated on a subjective attitude or an objective [*373] expression on either of them, or on both. The examination is a functional assessment of the purposes served by defining prescriptive consent as a mental state or as an expression of mental state of acquiescence. But again, consent is both a noun and an intransitive verb and most obviously a communicative act in which a subject communicates permission for or agreement to a course of action. Assuming that consent exists as a communicative act, only then can we inquire further as to its legal and moral effect.

Focusing on prescriptive attitudinal consent, Chapter 5 discusses what indeed may be required beyond what Westen calls “factual attitudinal acquiescence” to transform acquiescence into a defense in criminal law situations (pp.177-245). With sixty-eight pages, Chapter 5 is by far the longest and most detailed section of the book. In Chapter 6 Westen addresses non-contemporaneous prescriptive consent. This involves discussion of cases where persons (subjects) did not prescriptively consent to an act at the time the act occurred but are subsequently understood as having prescriptively consented to it by acquiescing either prospectively or retrospectively (pp.247-267). Finally, in Chapter 7 Westen focuses on “imputed consent,” especially where “consent to a conduct” is made prospectively or retrospectively. These consent types consist mainly of making inferences and include constructive consent, informed consent, and hypothetical consent. However, Westen observes that criminal law recognizes prospective factual consent as a valid defense despite the absence of contemporaneous prescriptive consent (pp.369-304).

Part III of the book, titled “The Consequences of Conceptual Complexity,” has one chapter and a conclusion. Besides serving as a summation, it broadens the framework on the logic of consent adopted in the book beyond the basic conceptions discussed in earlier chapters. Specifically the focus of Chapter 8 is on the various ways in which confusion about the conceptual apparatus of consent can lead to normative confusion, especially in sexual assault cases. It explores the legal confusion that often arises when lawmakers only dimly comprehend the conceptual structures of consent. To accomplish this, Westen offers three broad categories of confusion, illustrating with cases that involve (a) rulings that are legally problematic, (b) rulings that are framed in terms of consent, and (c) the actual languages of consent invoked by lawmakers that in themselves create legal confusion (pp.308-35).

To provide a sense of what he means under each type of confusion, Westen outlines the common mistakes. First is the mistake of confusing consent under one circumstance with consent under other situations. An example would be responding to questions about prescriptive consent with answers about factual consent. Because of the lowest incidence of this kind of confusion in tainting the outcome of trials, Westen considers this category of confusion to be the most prevalent type of mistake in criminal law. Accordingly, this cannot occur when the decision-maker is responding to a judge’s question whether the subject factually consent because (factually) consent is a necessary component of prescriptive consent. Second, the mistake of confusing [*374] consent as a prescriptive choice – prescriptive attitudinal consent – with consent as “prescriptive expression” of such a choice – prescriptive expressive consent. Accordingly, the second category of mistake occurs simply by unwittingly confounding distinctions of consent as well as the distinct function they serve. For example, the practice of defining the defense of consent of rape in some jurisdictions consists as neither “prescriptive attitudinal acquiescence” or as “prescriptive expressive acquiescence” but rather as an amalgam of the two (pp.318-19).

Third, Westen points to the mistake of confusing legal consent as an actual choice of an activity (i.e., prescriptive consent) with a legal fiction of such a choice (in this case an imputed consent). Finally, as noted here, Westen draws upon real world cases with common features to illustrate how confusions may emerge on the part of decision-makers under any of these assumptions of consent. Conceptual confusion can also arise in cases in which, as Westen asserts, everyone understands that consent is being used prescriptively to refer to whether a “subject” voluntarily acquiesced to an “act.” More importantly, confusion can occur because of human error; that is, people mistakenly associate features that are characteristic of one of the two elements that constitute prescriptive concern with features of the other element (p.327).

While the conclusion of the book provides an appraisal of the preceding Chapters 1-8, it does so in a rather unique fashion. Westen uses the case of a Commission established by the English Parliament in 1965 to propose revisions in English consent law to illustrate the pervasive ambiguities that accompany most discussions of consent. To that end he shows how the ensuing ambiguities that resulted from the Commission’s report are all too common in legislative provisions and other thoughtful writings on consent. Rape statutes in several states in the United States, as Westen so well points out, use consent prescriptively but fail to specify whether the underlying acquiescence of a subject consists of a mental state on the subject’s part or an expression thereof which leaves these statutes contradictory in their consent provisions. Thus, in the final analysis, confusions regarding consent result, not only in conflating one conception with another, but also from confounding the basic elements that constitute all conceptions of legal consent (pp.339-50).

Finally, my assessment of the book on the important issue of “consent” is generally positive. The strongest attribute of the book, besides its passion for the issue of consent, is that it is substantively driven, quite conceptual, but it makes for difficult reading regardless of level of use – graduate, law or professional. My qualms regarding difficult reading aside, the effort made here is to be commended. By unraveling the various aspects consent, Westen makes a valiant effort and a compelling case for consent as an ambiguous concept that is fraught with legal and factual confusion, especially within the context of criminal law cases. He also does more. He locates the core problem of confusion in legislative hallways where not only lawmakers are the obvious culprit in creating ambiguous consent laws, but he also extends similar indictments to scholars and commentators who most likely [*375] propagate more confusion in their articulation of consent laws and events.

In the end, Westen locates and identifies the many forms of consent and the diverse consequences that flow from them. Confusion results from conflating one conception of consent with another, as well as from confounding the basic elements that constitute all conceptions of legal consent. For example, Westen notes that the view of consent as a single kind of event is indeed false, since in reality, it refers to diverse and sometimes mutually exclusive kinds of events. The ability to distinguish clear cases of consent and its absence is not sufficient for understanding. While consent may be seem obvious when someone says “I consent” and really means it, to conclude that consent is absent when someone says, “I object” and really means it may be rather confusing, we are told. While taking no position on whether the substance of existing defense of consent in criminal law ought to be enlarged or reduced in scope, Westen’s examination of the contrasting events of consent and his analysis of the normative confusions they produce are painstaking.

Finally, Westen’s consideration of the full range of issues related to consent will certainly appeal to a wide readership in political philosophy, law, and the social sciences. As indicated, post-graduate students in law, society, and gender studies, as well as law professors and practitioners, will find in THE LOGIC OF CONSENT an excellent source for discussion.

REFERENCES:

Estrich, Susan. 1994. “Rape: A Question of Fear.” USA Today, 11 August 1994, p.13A.

Estrich, Susan. 1987. REAL RAPE. Cambridge, MA: Harvard University Press.

MacKinnon, Catherine. 2001. SEX EQUALITY: RAPE LAW. New York, NY: Foundation Press.

MacKinnon, Catherine. 1988. TOWARD A FEMINIST THEORY OF THE STATE. Cambridge, MA: Harvard University Press.

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© Copyright 2005 by the author, Marc-Georges Pufong.

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COUNSEL IN THE CAUCASUS: PROFESSIONALIZATION AND LAW IN GEORGIA

by Christopher P.M. Waters. Leiden: Martinus Nijhoff Publishers, 2004. 192pp. Cloth. €85.00/$122.00. ISBN: 9004139478.

Reviewed by Francis Regan, Department of Legal Studies, Flinders University, Adelaide, Australia. Email: francis.regan@flinders.edu.au .

pp.457-459

Grand explanatory theories always make me nervous. I wonder what has been left out or ignored in order to make the theory robust. In general we probably need a combination of grand theories as well as consistent attention to the hard cases that do not fit the theory. Together these perspectives are likely to offer a much richer and more accurate description and explanation of complex social or legal phenomena. This thin but nevertheless substantial book is an example of a study that focuses on a hard case that does not fit the theory. Christopher Waters’ book examines the legal profession in Georgia, as well as the Caucasus. Scholars who are curious about less well-known parts of the world and who are wary of grand explanatory theories will be delighted to read it. The book makes a valuable theoretical and empirical addition to the literature examining what we refer to optimistically and perhaps naively as “the legal profession.” It makes the contribution by confronting contemporary theory head-on and finding it wanting when applied to the case of Georgia and the Caucus. As I explain below, Waters also implies, but does not explicitly articulate, a deeper reservation about “grand legal profession theory.”

A short introduction sets the scene for the book. The Georgian “legal profession” is, according to Waters, worthy of examination because it is post-Soviet. That is to say, it is important to try to understand what has happened to this part of the world in the years since the collapse of the USSR. It is important to do this for many reasons, including the light shed on the development of the legal system and protection of human rights in Georgia. The Georgian “legal profession” is also important to understand theoretically in terms of whether the features of the post-Soviet “legal profession” in Georgia and the Caucus are, or are becoming, similar to those in many western, rich and industrialised societies.

In the first substantive chapter, Waters reviews the relevant legal profession literature and finds it of limited utility for understanding the case of Georgia. After briefly reviewing the literature, Waters states that he finds Abel’s theory of the “legal profession’s project” overall a “convincing” theory. Nevertheless, Waters argues that some features, particularly the “fixation upon monopoly does not fit the empirical evidence from Georgia and its neighbours” (p.9). In addition, he suggests that it might be more helpful to [*458] focus on the dynamic in history between the two poles of professionalization and de-professionalization, instead of assuming a singular and inevitable model of “legal profession project.” Finally, Waters points to the need to focus on what lawyers actually do, rather than focus solely on grand explanatory theories. While grand theory is sometimes uninterested in the nature of legal work, it is sensible to take account of multiple perspectives on lawyers if we wish to develop an accurate and more comprehensive analysis. The multiple perspectives could include not only grand abstract theories about organization, training and recruitment, but also at the other extreme careful research about the nature of the legal work undertaken by lawyers. This more nuanced picture might not lend wholehearted support to the grand theories, but the picture might well be a more accurate representation of the diversity of lawyers around the globe.

In other words, the book can be read as an argument that the grand legal profession theory proposed by Abel is not only inadequate to explain the case of Georgia. By implication it is also inadequate to explain lawyers in many other non-rich, non-industrialized societies. Although the so-called modern legal professions might be present in many rich industrialized civil and common law societies, this does not consider the large number of societies where most of the world’s population lives and where many lawyers work. In particular, it does not accurately describe the reality or necessarily the future of lawyers in much of Africa, Latin America, and China, where a ‘profession’ is emerging very rapidly. Legal professions in rich industrialised societies’ are quite simply very different from those in post-socialist Georgia.

The following chapters unpack Waters’ empirical evidence and theoretical arguments. Chapter Two examines the history of the Georgian legal system, including the role of different legal workers and the influence of the USSR upon the Georgian legal system. Chapter Three examines the contemporary legal environment within which legal work is undertaken in Georgia, including a useful distinction between formal and non-state law. The form and content of legal education in Georgia is considered in detail in Chapter Four, with some focus on both the legal education of lawyers and the public. The conflicting calls for regulation and self-regulation of legal workers, as well as the tensions between different strata of lawyers are considered in Chapter Five. The penultimate chapter compares Georgia with Armenia and Azerbijan, where Waters successfully mounts the argument that there is much in common between the history and current situation of lawyers in the three Caucasian societies.

The concluding chapter is a refreshing reiteration of main points, in addition to pointing the way forward. That is, Waters not only reflects on the main conclusions but also considers future research directions and desirable policy reforms of lawyers in Georgia. These are valuable additions to an already fascinating book.

There is much to like about this book, but I also have some minor quibbles. First, as an interested reader, I would have preferred the book to be longer. There are quite a number of points that prompted me to ask “But why?” or “What exactly does that mean?” or “Is there more detail on that issue?” This is not a criticism of the content, but rather a statement about what appears to be overzealous editing. It seems the [*459] book has been slimmed down too much from its original doctoral thesis format. It could have easily and usefully been about one-third longer. Second, there are some editing glitches including missing full stops. Third, the index is thin and not especially useful. Finally, there are some inconsistent points of style. In particular, some of the chapters end with a whimper rather than a summing-up statement. It is mildly irritating when the text simply finishes at the end of some chapters, while others highlight and reflect upon key points raised within.

Overall COUNSEL IN THE CAUCUS is well worth reading for those interested in analysing and comparing lawyers and legal work around the globe. It is a fine example of a rich combination of empirical and theoretical research.

REFERENCE:

Abel, Richard L., and Philip S.C. Lewis (eds). 1988-89. LAWYERS IN SOCIETY: AN OVERVIEW. Berkeley: University of California Press.



© Copyright 2005 by the author, Francis Regan.

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THE CASE FOR PALESTINE: AN INTERNATIONAL LAW PERSPECTIVE

by John Quigley. Durham and London: Duke University Press, 2005. 360pp. Cloth. $79.95. ISBN: 0-8223-3527-1. Paperback. $22.95. ISBN: 0-8223-3539-5.

Reviewed by Antony T. Sullivan, Senior Fellow for Mediterranean and Near East Programs, The Fund for American Studies, Washington, D.C. Email: atsullivan4321@comcast.net .

pp.366-369

As perhaps suggested by the title, this book is in fact two volumes in one. On the one hand, THE CASE FOR PALESTINE constitutes one of the best book-length summaries currently available of the historical case for the establishment of an independent and viable Palestinian state. As a primer on what Palestinians understand the historical reality over the past century to have been, there is today no better guide than John Quigley’s updated and revised version of his first edition, published in 1990. The appearance of this new edition could not be timelier, given the near total ignorance of Americans concerning the Palestinian experience. On the other hand, the “international law perspective” touted in the book’s subtitle plays a considerably less prominent role than a reader might expect. In fact, discussion of matters of international law and legitimacy are in general subsumed within the historical narrative of the Israeli-Palestinian conflict. This is not a book (for example) for someone interested in a comprehensive listing or exposition of all U.N. Security Council or General Assembly resolutions relating to the Israeli-Palestinian dispute. Nevertheless, Quigley deftly weaves into his historical narrative the numerous instances where international law has been applicable to the Israeli-Palestinian conflict, especially since 1947. And on that there hangs a depressing tale.

International law, in the sense of having any substantial impact on the actions of great powers or developments on the ground in the Israeli-Palestinian theater, has for decades proven almost totally irrelevant. Foreign powers, and local and regional actors alike, have consistently ignored, resisted, violated or condemned international legitimacy. Quigley is fully cognizant of this, and candidly admits that “most writers on the Israeli-Palestinian conflict find an emphasis on legal entitlement to be unrealistic, even counterproductive” (p.xii). Nevertheless, he asserts that he remains convinced that a peace “not based on justice may turn out to be no peace at all” (p.xii). Precisely so. But in this Age of Terror, with an American administration apparently unimpressed by international legitimacy and evidently committed to an almost endless war against al Qaa’ida, can Professor Quigley realistically expect even a modicum of deference to the prescriptions of international law? The fact that international legitimacy overwhelmingly supports the Palestinian rather than the Israeli case makes any application or enforcement of it difficult to imagine.

A distinguished professor of criminal, comparative and international law at Ohio State University, Quigley has studied the Israeli-Palestinian conflict [*367] throughout his career and has written and lectured widely on the subject. His mastery of the topic and command of the literature published in or translated into English is on full display in the volume at hand. Arab (Christian and Muslim), Jewish and other sources are exploited in a balanced fashion. Names such as Sami Hadawi, Rashid Khalidi, Abraham Granovsky, Raphael Patai, Abdullah Schliefer, Ahad Ha’am, Rosemary Sayegh, Simha Flapan, Neville Mandel, Muhammad Muslih, and Alan R. Taylor march through this book. Quigley also draws on some of the work of this reviewer. Whatever may, or may not, happen as far as resolution of the Israeli-Palestinian issue is concerned, all should be grateful for his having put so much on the record in such a compact and readable fashion.

But make no mistake. This volume will probably be dismissed in many quarters as irredeemably pro-Palestinian and pro-Arab. Given the lamentable state of public discourse on the Israeli-Palestinian conflict, and the animus displayed by influential American media toward the Palestinian cause, this is to be expected. Nevertheless, dismissal of this book would be unfortunate since it is in fact a dispassionate analysis of the long and tragic voyage of Jews and Palestinians to their rendezvous with destiny in our own time. Especially given the atmosphere in the United States today, congratulations are due to Duke University Press for having the courage to publish this second edition.

The first seven chapters (of 33) in THE CASE FOR PALESTINE treat the history of the Zionist-Arab conflict from the late 19th century through the 1948 Arab-Israeli war and the establishment of Israel. Nineteen Forty Eight is the hinge on which past and future turn, and Quigley appropriately devotes detailed attention to the legitimacy of Israeli and Zionist claims to the territory of Palestine, to the dispossession of Palestinians during the 1948 war, and to what happened to both Palestinian towns and land in and after that fateful year. Quigley analyzes Israeli national institutions and ethnic distinctions in the law of Israel, and thereby provides important information not easily available (say) in back issues of The Washington Post or The New York Times. It is a sad fact of life that when such information does surface in the United States it is often dismissed as “anti-Semitic,” even while it is a subject of regular and vigorous debate in the Israeli press. THE CASE FOR PALESTINE may provoke outrage at Fox News, but it is likely to elicit only a yawn in Tel Aviv.

Discussion of the 1967 Arab-Israeli war and its consequences takes up a full six chapters. Professor Quigley inquires whether Israel was in “mortal danger” (p.161) in June 1967 (the short answer: “no”), summarizes the realities that Palestinians have experienced under Israeli occupation, and describes how the years since 1967 have constituted a reprise and completion of what Zionism achieved in 1948. He devotes special attention to the validity of the Palestinians’ claim of a “right” (p.181) to resist occupation, and retraces the long and winding road whereby the Palestine Liberation Organization came to recognize Israel in 1989. Finally, Quigley suggests how Jerusalem, Israeli settlements in the West Bank, and the Palestinian refugee problem might be adjudicated in any Israeli-Palestinian [*368] settlement. He states that “If applicable international norms inform the negotiations between Israel and the PLO, the parties might achieve a negotiated solution that could stand the test of time” (p.238). But one senses that even Quigley does not believe that any such norms will be applied, and may indeed believe that any breakthrough to Israeli-Palestinian peace remains a chimera.

Such are the depressing historical narrative and the bleak outlook. But readers will surely be interested in knowing more about the international norms and questions of legal entitlement that Quigley discusses at relevant junctures of his book.

One such juncture occurs in chapters four and especially six, “A Portrait by Picasso: The UN Recommendation of Partition” and “Whose Land to Give? The UN Power over Palestine.” Here, there is discussion of the debate over and drafting of UN General Assembly Resolution 181 authorizing the partition of Palestine, and analysis of the prerogatives of the United Nations General Assembly, especially as related to Articles 10, 11, and 14 of the UN Charter. In reference to Resolution 181, Quigley observes that “even if the Assembly had intended to impose partition, it is not clear that it had the legal authority to do so” (p.47). He notes that Hans Kelsen, Clyde Eagleton, Leland Goodrich, and Edward Hambro all agreed that UN General Assembly resolutions “have no obligatory character” (p.47). On the other hand, Quigley points out that a number of scholars have argued that even if the General Assembly has no power over territory generally, it does possess decision-making power over territory that was under a League of Nations mandate. For example, Emile Gerard, a former legal officer of both the League of Nations and United Nations, stated that the UN succeeded to the League’s power over mandate territory. The General Assembly, Allan Gerson argued, possesses an “adjudicative role” to terminate a mandate that is “beyond its normal recommendatory role” (p.48). Interestingly, Quigley analyzes the discussion in 1971 by the International Court of Justice of the legal significance of General Assembly Resolution 2145 which affirmed the right to independence of the people of Namibia. In advisory opinions, the Court decided that South Africa’s mandate over Namibia was terminated, and endorsed the legality of resolution 2145, stating that “To deny to a political organ of the United Nations which is a successor to the League . . . the right to act . . . would not only be inconsistent but would amount to a complete denial of the remedies available against fundamental breaches of an international undertaking” (p.49). The ICJ made clear that this power derives from Article 10 of the UN Charter “which authorizes the General Assembly to discuss any question or any matters within the scope of the Charter and to make recommendations on these questions or matters to the Members of the United nations” (p.49).

In its advisory opinions on Namibia, the ICJ did not decide, Quigley makes clear, whether the General Assembly “has the power to decide on the future status of a mandate territory against the wishes of the inhabitants, which is the issue if it is asserted that Resolution 181 is a binding decision” (pp.51-52). In 1947, two-thirds of the population of Palestine [*369] remained Arab, and the Palestinian majority was overwhelmingly opposed to the idea of partition. In Quigley’s words, the Namibia advisory opinions “do not suggest the [General] Assembly has the power to adopt a territorial solution against the wishes of the inhabitants” (p.52). But in 1947 the General Assembly did adopt just such a solution, in clear contravention of the wishes of the then majority of the population of Palestine. Like so many later UN resolutions, 181 was never implemented in accordance with all of the terms adopted in 1947.

Elsewhere, Quigley discusses international legitimacy as it applies to Jerusalem, the Palestinian refugee problem, and the legal status of Arabs within Israel and that of Israeli settlers in the West Bank and Gaza Strip. He recounts the process by which the United Nations came to recognize Palestinian demands for self-determination and the establishment of an independent state adjacent to Israel. Concerning Jerusalem, Quigley observes that Palestinians, not Israelis, have the “stronger legal claim to the city, in its entirety,” but have nevertheless proposed an “east-west division . . . or shared sovereignty over the entire city” (p.226). He adds that both the Security Council and the General Assembly have recognized East Jerusalem as occupied territory that must be returned to the Palestinians. None of this will please many readers of this book.

This volume should be included on all academic reading lists dealing with the Israeli-Palestinian question, alongside materials expressing the pro-Israeli views of such scholars as Bernard Lewis (1996; 2001) and Martin Kramer (2001). Especially now, THE CASE FOR PALESTINE is worth the attention of US government officials engaged in the Israeli-Palestinian peace process. Quigley is to be commended for having compressed the work of a lifetime into this short, accessible, and copiously documented book.

REFERENCES:

Kramer, Martin. 2001. IVORY TOWERS ON SAND: THE FAILURE OF MIDDLE EASTERN STUDIES IN AMERICA. Washington, DC: Washington Institute for Near East Policy.

Lewis, Bernard. 1996. THE MIDDLE EAST. New York: Scribner.

Lewis, Bernard. 2001. WHAT WENT WRONG: WESTERN IMPACT AND MIDDLE EASTERN RESPONSE. Oxford: Oxford University Press.



© Copyright 2005 by the author, Antony T. Sullivan.

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DEMOCRACY THROUGH LAW: SELECTED SPEECHES AND JUDGMENTS

by Johan Steyn. Aldershot, UK and Burlington, VT: Ashgate, 2004. 334pp. Hardback. $114.95 / £60.00. ISBN: 0754624048.

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

pp.411-414

This is a collection of essays and case excerpts from Lord Steyn, one of the judges of the United Kingdom’s highest court, the House of Lords. Traditionally the judicial House of Lords has been a committee of the Upper House of the UK Parliament (also called the House of Lords), though the current government plans to establish a separate Supreme Court. Lord Steyn also sits on the judicial House of Lords’ alter ego, the Privy Council, which hears appeals from several Commonwealth countries.

Lord Steyn is a South African born judge and his experiences of legalized tyranny in that country under Apartheid left an “indelible” impression on him (p.xiii). His legal practice in England largely concerned commercial practice, but especially since becoming a member of the House of Lords in 1995 he has produced many thoughtful analyses of constitutional law and human rights. Lord Steyn offers insights into the constitutional reforms on-going in the United Kingdom, the principles of the 1950 European Convention on Human Rights (ECHR) and more generally into the role of a judge in today’s global rights conscious community. This is not merely a learned collection, but one marked by honesty, humour and considerable forthrightness. He admits to getting things wrong (p.131). He suggests that his elevation to the Bench was a result of mistaken identity (p.xiii). He leaves us in no doubt that US military tribunals planned for Guantanamo Bay detainees are reminiscent of kangaroo courts (p.207).

Lord Steyn’s collection discusses the ongoing reforms in UK legal practice. The very existence of this volume and its contents indicate some of the great changes underway in the UK legal culture. In the past thirty years senior judges have dropped much of the aura of judicial mystique which lead one comparativist to title a work the ORACLES OF THE LAW (Dawson 1968). UK judges have increasingly entered the public eye and explained some of the workings of their craft. Lord Steyn’s outspokenness is one of the most recent examples of this; writings by himself and other prominent judges such as Lord Bingham, Lord Justices Laws and Sedley, have contributed greatly to our understanding of the judicial role. Few judges though have been so forthright in their public pronouncements, as is evident from Lord Steyn’s comments on Guantanamo Bay (p.207).

Lord Steyn neatly summarises some of the changes in UK public law (for more extensive discussion please see Oliver 2003, Jowell 2004). Traditionally the UK constitution was a purely procedural or political one, where formally the will of Parliament was supreme and the [*412] constitutional workings were shrouded in the mysticism of monarchy; and practically the Executive government was the most powerful actor in the state.

Lord Steyn notes that current reforms tend to create a constitutional state: judges now refer to “citizens” and not “subjects of the Crown;” the “state” has become a recognised legal concept and now judges can issue injunctions against Executive ministers (p.140). Judges have developed the concept of the rule of law and have invoked the phrase “constitutional rights” to say that Parliament can only violate fundamental principles by explicit legislation (pp.xix, 55-6, 63-4. An example of this is in the ANUFRIJEVA case excerpted in this volume (p.143)). Constitutionalism is enhanced by diffusing authority so that all power is not centralized in the Executive. This has been promoted, with devolution to the different regions of the UK being the most dramatic example. These constitutional developments are reinforced by European influences such as the 1950 European Convention on Human Rights and European Union law (pp.141, 160). Importantly the ECHR has become part of domestic law thanks to the 1998 Human Rights Act. There are further changes necessary to promote constitutionalism: Lord Steyn describes how the judges of the House of Lords now rarely debate in the Parliamentary House of Lords and that there is a need for a proper separate Supreme Court which has now been “ineptly” announced by the Blair government (pp.xx, 125).

Yet Lord Steyn’s writings offer us much more than an introduction into changes in the UK legal culture. There are many points in this collection which are relevant to the role of the judge in today’s global legal community.

Lord Steyn largely rejects formalistic approaches to legal reasoning (pp.xviii, 77). Judges must be open about all factors, including moral and ethical principles, that influence their judgments and acknowledge that different judicial answers are always possible (pp.24-6). He acknowledges that judging is not an exact science and that judges, including himself, may make mistakes (pp.36-9, 131).

The formalist pursuit of mere consistency is sometimes not sufficient at the appellate level, though, in a nod to Dworkin, judges must respect law’s “integrity” (p.14). Interpretation is never merely a question of looking for the ordinary meaning of discrete words, nor is interpretation limited to cases where a text is ambiguous (p.60). Statutes should be purposively interpreted as if they are speaking in the “present tense” or are “always speaking,” rather than being limited to the historical context in which they first appeared (p.62-3). These principles apply even more so in the case of constitutional texts (citing Cardozo J. and Chief Justice Dickson of Canada, p.65) when ethical values are important in interpretation (p.173). In articulating their interpretation of the constitution, judges are not acting undemocratically but rather promoting respect for human rights, one of the pillars of democracy (p.130). With candor, Lord Steyn says that the “fallible judges with imperfect insights” have the “duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law” (p.130). [*413]

This judicial duty is no longer one to be undertaken by national judiciaries in isolation. We can see the extent to which judging is now an international business. While reference to foreign and international law in US cases may still be somewhat rare and controversial (LAWRENCE v. TEXAS (2003); ROPER v. SIMMONS (2005)), Lord Steyn throws himself into the network of “transjudicial communication” (McCrudden 2000, Slaughter 2003). He makes public speeches in Britain, in addition to India, New Zealand and Canada, refers approvingly to Barak J. of the Israel (p.162). He draws on case law from the European Court of Human Rights and Inter American Court of Human Rights (p.xvii), and connects constitutional reform in the UK to the constitutional “renaissance” throughout the Commonwealth (p.159).

This internationalism expresses itself, not just in the use of comparative law in judicial cases (p.142), but also in a strong commitment to certain universal values, most notably human rights. Lord Steyn outlines the evolution of international human rights in “Human Rights: The Legacy of Mrs. Roosevelt” (pp.151ff). Human rights express both a moral claim and a necessary condition for democracy—democracy requires majority rule and human rights (pp.59, 152). This universalism appears in Lord Steyn’s judicial work. When Spain sought the extradition of General Pinochet for murder and torture, Lord Steyn offered a clear ruling that the former Chilean dictator was not entitled to any immunity for such acts (pp.163-70).

Lord Steyn’s commitment to universal values produces a stark paradox in death penalty cases. The United Kingdom has abandoned the judicial death sentence, and signed on to a Council of Europe protocol banning it. However the Privy Council hears appeals from countries which still have the death penalty. In the 1998 FISHER case, Lord Steyn tried to use the principle that the death sentence must not be inflicted following “exceptional and abnormal” delays to prevent an execution, but this was a dissenting opinion. The execution went ahead (p.93).

Lord Steyn has played a considerable role in explaining the implications of European human rights law in the United Kingdom. Importantly the values of European human rights law differ from some traditional principles in the application of constitutional rights in the United States (p.65). Lord Steyn outlined some of the European principles in a case where a person accused of drunk driving claimed that her right against self-incrimination had been violated—she had been obliged to identify herself as the driver of a car. Lord Steyn emphasised the sophistication of the European Convention: the drafters were aware that rights could collide and that “single minded concentration on the pursuit” of individual rights could harm the public good and even undermine “tolerant European liberal democracies” (p.178). The fact of living in a community requires limits on rights (Lord Steyn traces this to Article 29 of the 1948 Universal Declaration of Human Rights). These rights must satisfy the test of proportionality; rights may be limited only when narrowly tailored and necessary to protect an important public interest (pp.180-1). [*414]

The European Convention on Human Rights is thus critical in developing a “culture of justification” suitable for a modern democracy (p.66), though Lord Steyn believes that ultimate decision-making should still lie with Parliament and not with a final court of appeal (pp.98, 101, 135). Whilst rejecting some of the hysterical media reports about the impact of human rights law (p.174), Lord Steyn is not blind to the defects of the European Convention. He criticises the absence of a right to information (p.176) as a serious flaw in a democracy, and he is critical of the ECHR’s weak equality right (p.137).

Overall this collection offers considerable insight into the role of the modern judge. Being a compilation of essays on related topics, it sometimes suffers from inevitable repetition, and occasionally I would have appreciated more extended treatment of issues like the relationship between rights and democracy. I would also have liked more clarification on the role of legislation; although Lord Steyn speaks of the respect that is owed to Parliament (p.48), he also seems to have a low opinion of much of Parliament’s output (pp.50, 58). Certainly one can only agree with Lord Steyn that universities need to divert more attention to the role of legislation, a project promoted by Jeremy Waldron as well (Waldron 1999). And Lord Steyn’s repeated call for judges to stand for human rights even in a time of a “war on terrorism” is one which can hardly be repeated too much (p.xxii).

REFERENCES:

Dawson, John P. 1968. THE ORACLES OF THE LAW. Ann Arbor, MI: University of Michigan Press.

Jowell, Jeffrey, and Dawn Oliver. 2004. THE CHANGING CONSTITUTION. Oxford: Oxford University Press.

McCrudden, Christopher. 2000. “A Common Law of Human Rights?: Transnational Judicial Conversations Constitutional Rights.” 20 OXFORD JOURNAL OF LEGAL STUDIES 499-532.

Oliver, Dawn. 2003. CONSTITUTIONAL REFORM IN THE UK. Oxford: Oxford University Press.

Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” 44 HARVARD INTERNATIONAL LAW JOURNAL 191-220.

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

CASE REFERENCES:

FISHER v. MINISTER OF PUBLIC SAFETY AND IMMIGRATION & ORS (No 2) [1998] ICHRL 134.

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT AND ANOTHER EX PARTE ANUFRIJEVA, [2003] UKHL 36.

ROPER v. SIMMONS, 125 S.Ct. 1183 (2005).



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

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HOW LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS

by Jean Stefancic and Richard Delgado. Durham: Duke University Press, 2005. 152pp. Cloth. $69.95. ISBN: 0-8223-3454-2. Paper. $19.95. ISBN: 0-8223-3563-8.

Reviewed by Patrick Schmidt, Department of Political Science, Southern Methodist University, Email: pdschmid@mail.smu.edu .

pp.425-428

A standard formula when advocating change is to jump three hurdles: demonstrating a problem, isolating the cause, and offering a feasible solution. Mainstream accounts of the practice of law clear the first hurdle in Olympian fashion, only to pause ponderously at the second and usually struggle mightily with the third. Jean Stefancic and Richard Delgado attempt to break that mold with HOW LAWYERS LOSE THEIR WAY, a short and suggestive run at the problems faced by the legal profession. Is there a problem with the conditions of lawyering today? Most observers can be easily persuaded, and Stefancic and Delgado roll out myriad data about the dissatisfaction and unhappiness of lawyers. It is in the second step of identifying the cause that the authors make their biggest contribution, and even if you are persuaded by their diagnosis, you may be excused for feeling unsatisfied by their solution.

This is a book in two parts. Part I makes an original and engaging move, a dual biography about the interwoven lives of Archibald MacLeish (1892 – 1982) and Ezra Pound (1885 – 1972). MacLeish is a flawed protagonist in this tale, a Babbitt of an elite lawyer, desiring to break out of the patrician lawyer’s life by pursuing his love of poetry. His legal career (relieved ultimately by public service) trapped him in a formalist’s world, with its limited vision. His poetry also spoke with the stilted voice of the Victorians, but for him Pound was an heroic figure who broke boundaries and found freedom. For decades, Pound, the great and eccentric poet, was aware of, but broadly dismissive of, the admiring MacLeish. Unlike many elite lawyers, MacLeish actually acted on his Mittyesque dreams, leaving behind a Boston partnership to pursue the life of an exile in Paris in the 1920s. Though he and his wife returned to the United States, having failed to win complete acceptance in intellectual circles—a “bad bohemian,” he would later say of himself—Stefancic and Delgado portray his aesthetic sensibility as a smoldering fire, burning like the goodness in Darth Vader, that the dark side of formalism failed to stamp out.

The crucial engagement between Pound and MacLeish occurred in the mid-1950s. Pound’s anti-American activities in Italy during World War II resulted in charges of treason and commitment to an American asylum. After ten years’ custody, the story finds MacLeish mobilizing support for Pound, who was eventually released in 1958 to live out his life in Italy. Here is the biographical question most in need of an answer: why did MacLeish go to lengths to help this embattled, eccentric, even repellant man, [*426] admirable for his poetry but seemingly little else? The answer, say Stefancic and Delgado, lay in how Pound embodied that flame that MacLeish wished to nurture. Pound provided a model of critical engagement that a pre-Realism man like MacLeish struggled to emulate. By helping Pound, MacLeish found closure on his own contradictions as a poet trapped in a lawyer’s brain, a man whose noble and great ambitions had been snuffed out early in life by formalist legal training. Therein is the key to this book.

This is spare biography, told in fewer than thirty pages across two chapters, leaving many relevant questions about MacLeish’s psychology and motivations. The reader has to retrieve much of the biographic color and depth from the footnotes. What, then, is the role of this biographical turn? It is not biography for biography’s sake, to be sure. It is also clearly intended as more than an historical metaphor (though Stefancic and Delgado use it as metaphor, p.84), because the authors identify the era of MacLeish’s education and early career as a turning point for the legal profession as a whole. Using the device of formalism to explain MacLeish’s alienation from the law is plausible, though readers might wonder whether MacLeish is just Generation X ahead of his time, or whether alternative explanations might not better explain his psyche. Can we go even further, assuming the accuracy of the biographical account, to generalize from MacLeish’s experience a link between formalist legal education/thinking and the unhappy lives of lawyers?

That is the focus of Part II, which is their leap across the second hurdle. Stefancic and Delgado lay the blame for unhappy lawyers with formalism in law schools and legal practice. This argument complements and competes with recent works (e.g., Glendon 1994; Rhode 2000) that blame, variously, the loss of ethics, the pursuit of wealth and power, or the loss of respect for the rule of law. MacLeish suffered from excessive regimentation and specialization in his work, both of which have been magnified many times by both large and small law firms, added to which are increasing economic pressures such as billable hours. The result, they say, has been system-wide misery, such as high rates of alcoholism, drug abuse, burnout, and suicide. A five-page chapter suggests that formalism is behind similar levels of dissatisfaction among medical professionals as well. Stefancic and Delgado are wise to set the expectations low for this sketch of a theory, with the exculpatory caveat that “we paint here with a broad brush, seeking no perfect proof but rather a story or narrative that will resonate with the reader” (p.33). As someone who has spent time as a legal assistant and watched attorneys work, this account indeed resonates well, and it is a wonderfully global account of the modern condition of professional work, which numerous studies tend to support.

But even the choir likes to hear a persuasive sermon to support the admonitions, and this broad brush leaves much uncovered. The authors obviously recognize that the challenge is to connect the condition of formalism—defined simply as “a conception of legal reasoning that emphasizes internal rather than external factors in generating legal decisions” (p.34)—to the conditions of modern legal practice. In Chapter Seven’s conclusion to the book, [*427] MacLeish’s experience remains the best evidence to support that link, which is otherwise established by fiat, that “if you allow yourself to think of what you do in crabbed terms, you are apt to find yourself working in a crabbed workplace as well” (p.77). Having set out a broad range of problems, stretching even to the medical profession, it is hard to take on faith that formalism is the sole, primary, or necessary cause. Is specialization inherent to formalism or an independent condition of modern legal practice? Does the decline in pro bono legal work have more to do with the limitations of the formalist world-view or the nature of the marketplace? Perhaps some readers will lay the blame with an economic system far beyond the mere tool of formalism, one that commodifies values and increases the demands on employees, whether blue collar assembly-line laborers or “autonomous” professionals. (Stretching their vision beyond what most people will regard as formalism, the authors even throw in a few solutions to the monotony of factory work; see p.81).

Whatever your speculations, uncertainty about the global relationship of formalism to lawyers’ unhappiness undermines the possibility of clearing the third hurdle: proposing a solution. The first step for law schools, the authors argue, is to “cast aside” formalism and the Socratic method that prevents young lawyers from engaging the wider considerations inherent in legal situations. Then law practice must abandon “unnecessary formalism” (p.84). What does this mean? Literally and figuratively borrowing a page from MacLeish’s notebooks, “many lawyers might well be happier if their lives contained more poetry—if they could slow down and read, or even write, a poem sometimes,” Stefancic and Delgado write. Even more fundamentally, “thousands more would benefit if their lives contained more leisure, more contemplation, more time to think seriously about what they do, and even, enjoy it” (p.84)—which is to say, they ask for more balance, wrought by “anti-formalism and critical analysis” as a counterweight to formalism. Perhaps their difficulty reaching anything more concrete and specific than this stems from issues far more complex—economically and historically, as well as philosophically—than this morsel of a book allows. Most readers, like my students who are all too willing to pursue the promise of a legal career, will not be satisfied by a thin prescription amounting only to a combination of relaxation and introspection (or, Bobby McFerrin’s “Don’t Worry Be Happy” meets Zen and the Art of Lawyering).

More pragmatically, I would not be surprised to find this book in many undergraduate and law school courses. For a course on legal practice its value is easy. For an undergraduate judicial process course, it has the advantages of brevity, affordability, and a human interest. If you teach “black letter” formalism as a competing theory to behavioral and institutional models of judicial decision-making, and if you also include a unit on the legal profession in your course, this book neatly bridges those topics in intriguing ways. The problems of lawyers are laid out in depressing detail, and this critical perspective will generate much thought. Like Martha Derthick’s UP IN SMOKE (2005), a plausible-but-problematic argument can stimulate students’ [*428] analysis and discussion better than an authoritative and complete opus.

REFERENCES:

Derthick, Martha A. 2005. UP IN SMOKE: FROM LEGISLATION TO LITIGATION IN TOBACCO POLITICS (2nd ed). Washington, D.C.: CQ Press.

Glendon, Mary Ann. 1994. A NATION UNDER LAWYERS: HOW THE CRISIS IN LEGAL EDUCATION IS TRANSFORMING AMERICAN SOCIETY. New York: Farrar, Straus and Giroux.

Rhode, Deborah. 2000. IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION. New York: Oxford University Press.



© Copyright 2005 by the author, Patrick Schmidt.

For more information about this book, go to Duke University Press

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SPEAKING OF CRIME: THE LANGUAGE OF CRIMINAL JUSTICE

by Lawrence M. Solan and Peter M. Tiersma. Chicago: University of Chicago Press, 2004. 264 pp. Paper $22.00. ISBN: 0226767930. Cloth. $55.00. ISBN: 0226767922.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University. matwell@radford.edu .

pp.453-456

Lawrence Solan and Peter Tiersma bring expertise in both law and linguistics to their appealing study of how language—especially spoken language—influences the application of the criminal law. The book’s title originally led me to think it was another examination of how the media’s use of language frames debates about crime. And, although that is also a fascinating topic, this work explores newer ground and offers some explicit suggestions about how scholarship can influence the workings of the justice system. The basic argument is that scientific research in linguistics, and to a lesser extent in cognitive psychology, can assist law enforcement, attorneys, judges, and juries in arriving at more reliable determinations of guilt and innocence. If criminal justice professionals are better informed about how people use and understand language, they will be better able to sort actual guilt from innocence. Solan and Tiersma take a positive tone. They assume that people of good will want the system to work fairly and that some of its failures may be attributed to misunderstanding rather than to ill will, bias, or self-interest. They also argue that, with the proper information in hand, states and individual agencies can address many of those failures.

The organization of the book is logical. It begins with an overview of the study of language, follows with particular problem areas for law enforcement, especially consent searches and MIRANDA warnings. The authors then look at linguistic evidence in courts, and end with an examination of “crimes of language,” such as threats and perjury. They include a balanced, linguistic rather than political, analysis of whether President Bill Clinton actually perjured himself as his opponents charged in their effort to impeach him.

Without bogging the lay reader down with too much esoteric linguistic science, Solan and Tiersma offer some basic concepts useful to their analysis. For example, words have both their definitional meaning and their prototypical meaning. The latter involves a mental model that speakers envision based on their experience with a term. They also discuss the concept of pragmatics, the notion that situation as well as verbal context provides meaning to a word or phrase, and performatives, words like “promise” that perform the act they identify. They argue that those who analyze language in making legal judgments should be mindful of theories of conversation, such as the Cooperative Principle which holds that a contribution to a conversation should be consistent with the direction and purpose of the dialogue. It should be informative and relevant. Someone trying to get to the heart of a legal matter might ask, “What [*454] meaning of this phrase is consistent with the Cooperative Principle?”

Courts, however, have seldom made use of linguists’ expertise, instead employing them chiefly to testify to the likelihood of confusion in trademark cases or to evaluate the proficiency of non-English speakers. Clearly the authors believe that the discipline of linguistics is underutilized by the justice system and that criminal processing could benefit considerably by greater use of discourse analysis. On the other hand, they also argue against the use of “junk” linguistics, including voice recognition and much handwriting analysis. They support the test of scientific evidence set by the Supreme Court in DAUBERT v. MERRELL DOW PHARMACEUTICALS (1993). These evidentiary standards include testing, peer review and publication, the known rate of error, and general acceptance in the scientific community. Linguistic research that meets these criteria should be admissible.

Applications of linguistic analysis to the workings of the criminal justice system provide the essential focus of this book. Solan and Tiersma argue persuasively that the Supreme Court has upheld a double standard of directness in communication in their rulings on consent searches compared with those on suspects’ requests for attorneys. The Court has interpreted the most indirect comments from law enforcement officers such as “Does the trunk open?” as a request for consent to conduct a warrantless search. On the other hand, they have ruled that when a suspect undergoing custodial interrogation asks for a lawyer, he must ask explicitly or his request for counsel need not be acknowledged. The authors contend that a contextual approach to language will reveal that indirect speech is influenced by the power relationships among the speakers. A police officer’s “request” may carry a great deal of weight. A suspect in custody may be overly polite to his interrogators for fear of making his situation worse. In that situation, he is more likely to speak indirectly by saying “Perhaps I should have a lawyer?” Awareness of such principles of communication would allow for a more consistent respect for the rights of the accused.

As everyone knows, the MIRANDA decision provides that before a custodial interrogation begins, a suspect must be advised regarding the right to remain silent, the prospect that his statements may be used against him, and the right to an attorney. The ruling was intended to protect against use of coercion in obtaining confessions, especially as confessions are particularly powerful pieces of evidence. If a suspect waives the MIRANDA rights and signs a waiver, courts generally accept the confession as voluntary. But, Solan and Tiersma ask, is it that simple? Granted one may assume that no reasonable person would voluntarily waive his rights and freely admit to a crime he did not commit. But what about those who are not the typical “reasonable person”? What about persons who are mentally retarded or of low intelligence? Deaf defendants? Juveniles? Non-English speakers? Research has found such persons often show a low level of comprehension of the more abstract concepts included in the MIRANDA rights. A signed waiver could be based on little or no understanding. Without independent verification, how can it be [*455] certain that the subsequent confession is valid? As many other observers have suggested, Solan and Tiersma advocate videotaping interrogations. The cost is minimal and the procedure would provide a valuable protection against taking advantage of the language deficiencies of vulnerable populations.

The authors express healthy skepticism on the subject of some linguistic evidence in the courtroom. How is it possible to know whether a witness can remember the exact words spoken by a suspect? Repeated experiments indicate that memory of words, like eyewitness testimony, may well be unreliable. Yet courts often seem willing to accept that police officers and even jailhouse snitches can recollect not only the text but the intonation of a statement. The same caveats apply when considering crimes, such as threats or solicitation, where the words themselves are the illegal act. Non-expert witnesses are even less successful at recognizing a person’s identity based only on his or her voice, and voiceprint technology has none of the reliability of fingerprint or DNA matching. Solan and Tiersma argue that if voice recognition is an element in a case, the jury should at least be informed of the rate of error in its application.

The examination of written documents for author identification purposes raises similar issues. Although handwriting and content analysis are both used as evidence, jurors seldom know what can properly be inferred from the information. Without expert testimony, they are unlikely to be aware of what percentage of the population uses a particular misspelling, for example. If it is a common error, it is virtually useless in identifying a specific suspect.

Solan and Tiersma mention several times the conviction of Bruno Richard Hauptmann for the kidnapping and murder of the Lindbergh baby. Whether Hauptmann was innocent or guilty, it is incontrovertible that two very questionable pieces of evidence counted heavily against him. Charles Lindbergh testified that after a period of twenty-nine months, he could positively identify Hauptmann as the man whom he had heard, from a distance of 100 feet, say the words, “Hey doctor. Over here.” Likewise, handwriting “experts” offered testimony that they could match Hauptmann’s script to the ransom notes. Neither form of identification was reliable; certainly neither would withstand scientific challenge. Hauptmann might still be convicted today, but Solan and Tiersma would not let such evidence stand without serious scrutiny.

By far the most interesting part of the section, entitled “Crimes of Language,” was the analysis of the perjury charges against President Clinton. The authors begin by explaining the false statement requirement as defined by the Court in BRONSTON v. US (1973). If a witness’ response is literally true, but equivocal or evasive, he has not committed perjury. It is the lawyer’s job to ask the follow-up questions that will clarify the matter and reveal more information. Bill Clinton, in the authors’ view, used the BRONSTON approach. He intentionally misled the grand jury about his relationship with Monica Lewinsky but did not make false statements. The federal prosecutors mischaracterized his statements as [*456] “completely false” and insinuated that the President had committed a crime when he failed to correct his lawyer’s remarks. The general public also differed in their responses to Clinton’s comments. Some believed his intent to mislead was the same as lying. Others did not. Some believed he lied but that the lying was immaterial. Solan and Teirsma bring linguistic theory to bear and argue for a critical distinction between lying in ordinary conversation and the “rules of the game” during formal questioning. In the latter situation, an opposing attorney has the responsibility to press the issue if necessary. Courtroom questioning is tightly structured and under the supervision of a judge. A literally true but misleading response is within the legal parameters of the discourse.

Finally Solan and Tiersma offer specific suggestions to use knowledge gained from the study of linguistics to assist in improving the fairness and accuracy of the justice system. They propose that police encounters with suspects be routinely videotaped, that law enforcement agencies develop special protections when questioning the young, the mentally retarded, non-English speakers and other special populations, that they reduce the use of consensual searches, and that they develop appropriate procedures for voice lineups. Assuming that the U.S. Supreme Court is not likely at present to be overly concerned with the rights of the accused, they suggest that states, through their courts and/or constitutions, can clarify how a suspect should request assistance of counsel. In addition, courts can help with the reliability of confessions by refusing to accept those that cannot be corroborated, preferably with a video. Attorneys should familiarize themselves with the reliability of evidence, from voice identification to confessions by vulnerable witnesses, and be ethical enough not to use it improperly. Finally, they argue that linguistic experts must follow professional ethics and not overstate the strength of their contributions.

The authors’ recommendations are generally modest, involving incremental change. Reading this book is a good place for students and professionals to begin thinking about how a deeper understanding of the science of language can improve the performance of the criminal justice system.

CASE REFERENCES:

BRONSTON v. UNITED STATES, 490 US 352 (1973).

DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC., 509 US 597 (1993).

MIRANDA v. ARIZONA, 483 US 436 (1966).



© Copyright 2005 by the author, Mary W. Atwell.

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ICARUS IN THE BOARDROOM: THE FUNDAMENTAL FLAWS IN CORPORATE AMERICA AND WHERE THEY CAME FROM

by David Skeel. Oxford University Press, 2005. 272pp. Hardback. $25.00 / £15.50. ISBN 0-19-517471-2.

Reviewed by David T. Johnson, Department of Sociology, University of Hawaii. Email: davidjoh@hawaii.edu .

pp.415-419

In the year 2000, Fortune magazine chose Enron as America’s best-managed and most innovative corporation. In March 2001, Enron announced that its 2000 revenues had doubled, to $100 billion. In October of that year, Enron paid its normal quarterly dividend and said earnings were up 26 percent and the company was “on track” to meet its year-end target. Six weeks later Enron filed for bankruptcy. Soon it was revealed that almost all of the $100 billion in “revenue” had been the result of fraud and deception. When Enron collapsed, tens of thousands of employees lost their jobs. Many were so invested in company stock that their retirement savings also evaporated (Eichenwald 2005).

David Skeel’s lucidly written book aims to explain why corporations crash and what can be done to prevent them from failing. His core causal claim is that three factors – excessive risk-taking, competition, and the increasing size and complexity of corporations – interact to produce the “devastating crises that have punctuated American corporate and financial life for the past hundred and fifty years” (p.6). Corporate breakdowns that fit this pattern are called “Icarus Effect failures” (p.7).

The first cause – excessive risk-taking – also appears in the book’s title. As Skeel summarizes, in ancient Greek mythology, Icarus was given wings in order to escape a labyrinth that housed a ferocious monster. The feathers of the wings were attached to its frame by wax. Ignoring warnings to be careful, Icarus “thought less and less about risk, and more and more about the majesty of his powers” (p.4). When he flew too close to the sun, the wax melted, the feathers gave way, and he crashed into the ocean. The lesson? Corporate executives who take intemperate risks jeopardize themselves and the financial well-being of employees, investors, and suppliers.

According to Skeel, the second causal factor, competition, increases the odds of major corporate failure because in a competitive marketplace, success attracts competitors, who eventually cut into profits. Some innovators respond by taking inappropriately large risks in an effort to replicate their early successes.

The final factor – the growing size and complexity of the corporation – not only increases the risk-taking stakes, it multiplies opportunities for mischief. Complicated corporate structures can be used (as they were at Enron) to obscure financial problems. When investors learn of the “false doors and hidden rooms” that have obscured the corporation’s true condition, the results can be catastrophic. [*416]

Skeel illustrates this model with several case studies: the nineteenth century collapse of Jay Cooke’s Northern Pacific Railroad (Chapter 1); the crisis of competition that occurred in the Gilded Age when business titans such as John D. Rockefeller tried to “rationalize” American business by taming competition among small and medium-sized corporations (Chapter 2); the 1932 crash of Samuel Insull’s Chicago-based utilities empire (Chapter 3); the takeover boom and bust pioneered by Michael Milken’s junk-bond operation in the 1980s (Chapter 4); and the Enron and WorldCom collapses in 2001-02 (Chapter 5). Although these cases do suggest that the Icaran factors are important, it is impossible to assess the theory’s general validity because of the seemingly ad hoc way in which the cases were selected.

Still, Skeel is a fine storyteller, and his historical analysis reveals that recent corporate scandals share at least two things in common with their predecessors from previous decades. First, failing to control the Icaran factors raises the risk of corporate collapse. Second, by galvanizing public opinion in favor of reform, Icarus Effect failures frequently generate regulation aimed at controlling corporate misconduct.

Reform and regulation are the subjects of Skeel’s final two chapters. Chapter 6 examines the Sarbanes-Oxley Act that was passed after Enron fell to earth. Though some analysts have called the Act “the most sweeping changes to the securities law in a generation” (p.177), Skeel is less sanguine. While acknowledging the new law’s benefits, especially the “cognitive disruption” it caused among corporate executives who were forced to rethink their standard operating procedures (p.182), Skeel stresses its defects. Stock options still are not treated as an expense in financial statements. Corporations do not need to rotate their auditors on a regular basis, and the company itself gets to decide who the watcher will be. As Skeel observes, when auditors consider a company their client, they are significantly more likely to find that it has complied with the law – even when it has not (p.188).

Because the Sarbanes-Oxley Act leaves the Icaran tendencies largely untouched, “nearly all of the conditions” that produced the recent scandals remain in place today (p.202). What is more, for the first time in history, more than half of all Americans now own stock, much of which represent retirement and other savings, not money intentionally put at risk (p.209). The next corporate crashes may therefore be devastating for ordinary Americans. Though the risk to investors has increased, their passion for reform has waned (Glater 2005).

In the concluding chapter, Skeel asks what else can be done to control Icaran excesses. He argues that the “shareholder democracy” movement has limited potential to rein in risk-taking because “most shareholders are concerned solely about the corporation’s bottom line” (p.203). Thus, instead of stressing more shareholder activism, as many reformers have done, Skeel insists that each of the Icaran problems be addressed directly.

The first task, cooling off risk-taking in the executive suite, is “most difficult” because taking risks is not only imperative in a system of capitalist [*417] competition, it is “central to the American imagination” (p.205). However, Skeel believes that risk-taking might be tamed by curbing executive compensation and by rethinking the function of new financial instruments such as derivatives. Second, the problems of competition may be mitigated by more consistent antitrust enforcement and by using “funding mandates” to assess the effects of deregulation and, where appropriate, to finance new regulatory efforts. These reforms are “obvious but devilishly difficult to implement” (p.207). Third, the misuse of corporate size and complexity through the multiplication of special purpose entities (SPEs) can be discouraged if “SPEs that are not truly separate from the overall company are denied separate treatment for accounting purposes” (p.208). Finally, Skeel believes that “the extraordinary risk of the new Icaran tendencies for ordinary [stockholding] Americans” can be countered in two additional ways: by ensuring that Americans’ pension investments are properly diversified, and by instituting a system of investor insurance analogous to the federal deposit insurance that New Deal reformers enacted 70 years ago (p.212).

On the penultimate page, Skeel asks if there is “any hope for genuine reform” of the nation’s corporate and financial landscape. Although he acknowledges that “it is hard to be optimistic,” he does see “a hint of hope for change” in the possibility that “Americans will seriously rethink the way that corporations are now regulated and demand a more complete response to the developments that have transformed the Icaran tendencies in American corporate and financial life” (p.215). A hint of hope it is. Considering Skeel’s concerns about the feasibility of his own proposals, one gets the impression that more Icarus Effect failures are all but inevitable. In this respect, Skeel joins a growing army of analysts who emphasize how hard it is to make corporations and their agents act responsibly (Bearle and Means 1932; Clinard and Yeager 1980; Mokhiber 1988; Yeager 1991; Beatty 2001; Korten 2001; Mitchell 2001; Beatty 2001; Braithwaite 2002; Bakan 2004). Thirty years ago Christopher Stone (1975: xiii) observed that corporations are “society’s most troublesome participant.” Three decades of corporate growth and legal lethargy have not made the job of controlling the world’s dominant institution any easier.

This fine book has at least four faults. First, it promises to expose “the fundamental flaws in corporate America and where they came from,” but in both of these regards – description and explanation – Skeel’s analysis is less “fundamental” than other works that have taken on similar tasks. For example, Joel Bakan (2004) and Lawrence Mitchell (2001) both root the problem of corporate irresponsibility in a legal structure that compels executives to maximize stockholder profit. They argue that the legal mandate of the American corporation is to pursue relentlessly its own short-term economic interest. By compelling executives to prioritize the short-term interests of their companies and shareholders, the law “forbids them from being socially responsible – at least genuinely so” (Bakan 2004: 35). Skeel elides the importance of the corporation’s legal mandate and its cultural underpinnings. As a result, his claims about the causes [*418] and prevention of corporate malfunction are less fundamental than it first appears.

The second problem is that in explaining why corporate scandals occur, this book fails to recognize that behavior is not scandalous until it is labeled as such. “Deviance” is not a quality of the acts a company commits; it is a consequence of the application by others of rules and sanctions to the corporate “offender” (Becker 1963). By neglecting the legal, media, and public responses to corporate action, Skeel obscures the fact that corporate scandals are constructed and mediated through the reactions of other actors (Thompson 2000). Those reactions – and the “labelers” who have power to define acts and actors as “deviant” – are too often marginalized in this account (Ermann and Lundman 2002).

Third, the Icaran theory of corporate breakdown has comparative implications that do not seem to be realized in the real world. Skeel recognizes that “corporate scandals are not unique to America” (p.9). He believes, however, that “the scandals in other countries have tended to take different forms”(p.9). According to Skeel, scandals in Japan typically involve misconduct by mid-level insiders, while in America “spectacular failures usually start at the top” (p.9). The contrast is dubious. More fundamentally, the Icaran factors may not explain corporate breakdowns in other societies. As mentioned above, excessive risk-taking in America is rooted in the short-termism of corporate law and culture (Mitchell 2001). In Japan and Korea, by contrast, corporations tend to take a longer view, yet scandals and breakdowns have been plentiful.

Finally, this book ignores studies that suggest corporate misconduct can be tamed through control efforts that combine the principles of restorative justice with the strategies of responsive regulation (Braithwaite 2002). It is an important omission.

The “fundamental flaws in corporate America” will be fixed if, and only if, there is concerted social action to challenge the corporations that now govern our lives – an imperative Skeel acknowledges obliquely in the book’s final pages (Tsuk 2005; Yeager 2004; Perkins 2004; Braithwaite 2002; Coleman 2002; Korten 2001). In the bulk of the text, however, the author’s preference for incremental reform limits the power of his proposals to change the things that matter most (Bakan 2004). My own hunch is that even if all of Skeel’s recommendations were enacted, controlling the corporation would remain our most formidable challenge.

Notwithstanding these problems, this good book does much to illuminate the causes of corporate collapse and the challenge of controlling corporations’ behavior in a world where they influence every aspect of our lives. It deserves a wide readership – and it is an excellent read.

REFERENCES:

Bakan, Joel. 2004. THE CORPORATION: THE PATHOLOGICAL PURSUIT OF PROFIT AND POWER. New York: Free Press.

Bearle, Adolf A., Jr., and Gardiner C. Means. 1932. THE MODERN CORPORATION AND PRIVATE PROPERTY. New York: Macmillan. [*419]

Beatty, Jack (ed). 2001. COLOSSUS: HOW THE CORPORATION CHANGED AMERICA. New York: Broadway Books.

Becker, Howard. 1963. OUTSIDERS: STUDIES IN THE SOCIOLOGY OF DEVIANCE. New York: Free Press.

Braithwaite, John. 2002. RESTORATIVE JUSTICE AND RESPONSIVE REGULATION. New York: Oxford University Press.

Clinard, Marshall B., and Peter C. Yeager. 1980. CORPORATE CRIME. New York: Free Press.

Coleman, James William. 2002. THE CRIMINAL ELITE: UNDERSTANDING WHITE-COLLAR CRIME. New York: Worth Publishers.

Eichenwald, Kurt. 2005. CONSPIRACY OF FOOLS: A TRUE STORY. New York: Broadway Books.

Ermann, M. David, and Richard J. Lundman (eds). 2002. CORPORATE AND GOVERNMENTAL DEVIANCE: PROBLEMS OF ORGANIZATIONAL BEHAVIOR IN CONTEMPORARY SOCIETY (6th ed). New York: Oxford University Press.

Glater, Jonathan D. 2005. “Here It Comes: The Sarbanes-Oxley Backlash.” THE NEW YORK TIMES. April 17.

Korten, David C. 2001. WHEN CORPORATIONS RULE THE WORLD. San Francisco: Berrett-Koehler Publishers, Inc.

Mitchell, Lawrence E. 2001. CORPORATE IRRESPONSIBILITY: AMERICA’S NEWEST EXPORT. New Haven: Yale University Press.

Mokhiber, Russell. 1988. CORPORATE CRIME AND VIOLENCE: BIG BUSINESS POWER AND THE ABUSE OF THE PUBLIC TRUST. San Francisco: Sierra Club Books.

Perkins, John. 2004. CONFESSIONS OF AN ECONOMIC HITMAN. San Francisco: Berrett-Koehler Publishers, Inc.

Stone, Christopher D. 1975. WHERE THE LAW ENDS: THE SOCIAL CONTROL OF CORPORATE BEHAVIOR. Prospect Heights, IL: Waveland Press.

Thompson, John B. 2000. POLITICAL SCANDAL: POWER AND VISIBILITY IN THE MEDIA AGE. Cambridge: Polity Press.

Tsuk, Dalia. 2005. “From Pluralism to Individualism: Berle and Means and 20th-Century American Legal Thought.” 30 LAW & SOCIAL INQUIRY 179-225.

Yeager, Peter Cleary. 2004. “Law versus Justice: From Adversarialism to Communitarianism.” 29 LAW & SOCIAL INQUIRY 891-915.



© Copyright 2005 by the author, David T. Johnson.

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A NEW PROGRESSIVE AGENDA FOR PUBLIC HEALTH AND THE ENVIRONMENT

by Christopher H. Schroeder and Rene Steinzor (eds). Durham, NC: Carolina Academic Press, 2005. 228pp. Paperback. $22.00. ISBN: 1-59460-082-1.

Reviewed by Michele Morrone, Environmental Health Science, Ohio University. Email: morrone@ohio.edu .

pp.449-452

You only have to look as far as the title of this book to realize that the authors have an agenda. If you are a critic of the way in which the Bush Administration is managing environmental issues, reading this book will strengthen and focus your arguments. On the other hand, if you are a supporter of Bush environmental policy, this book will help you understand the positions of your adversaries. The authors, who are legal scholars from various academic institutions across the country, systematically summarize issues and shortcomings with environmental regulations, specifically during George W. Bush’s Administration, and present a plan based on progressive principles to address these shortcomings.

One of the major philosophical shifts that we have made since the inaugural 1970 Earth Day is that environmental laws were originally enacted to protect public health from harms caused by pollution. When the U.S. government first started writing and implementing environmental and public health laws and regulations, there was very little scientific information about what the priorities should be. However, no one doubted that rivers catching on fire and needing headlights in the middle of the day were probably bad signals for the environment and human health. In this short 35-year time span, science has evolved at a fantastic rate, and this evolution may have actually contributed to inadequate environmental protection. One major emphasis of this book is the misuse of science in environmental decision-making, because conservative policymakers have exploited uncertainties in science for political reasons.

The book opens with an extremely brief summary of some of the successes in environmental policymaking before launching into an in-depth discussion of the “unfinished agenda” in environmental protection. Items on the unfinished agenda include: air pollution issues of global warming, mercury, and old power plants; nonpoint source water pollution; workplace safety issues such as accidents and asbestos; and natural resource extraction activities including overfishing. After summarizing the unfinished agenda, the authors argue that the Bush Administration’s environmental approaches have not only failed to address unfinished issues, but have systematically instituted policies that lead to backsliding on successes of the past 35 years. This first chapter of the book leaves not doubt in the reader’s mind that the Center for Progressive Regulation is a liberal organization, and to say that it is “critical” of Bush would be a true understatement.

To address the current problems that are creating an unsafe environment, the [*450] book’s main purpose and is to present ten progressive principles to get decision-making back on track to protect environmental and public health. Each principle is explained in a separate chapter that describes the problems with current environmental decision-making, defines the principle, and presents suggestions to implement each principle.

The first principle is based on the Bush Administration’s approach to “shifting the blame.” The authors argue that we have now come to a point in U.S. history of environmental regulation in which the approach has shifted from protecting the public to blaming the public. It is becoming increasingly common for environmental regulations to focus on providing information so that people can protect themselves from pollution rather than requiring polluters to clean up their acts. One clear example of this is the ozone alerts that encourage people who are sensitive to ozone to stay inside on poor air quality days; this type of regulation places the onus on the public and “shifts the blame” according to the authors. To address this situation, the progressive agenda requires a cultural and ideological shift back to the one that makes the “polluter pay,” the basis for many environmental regulations.

The “best efforts” approach, which is the second progressive principle, is identified as a precautionary way in which to protect the environment. The basis of this principle is that environmental regulations should be technology-forcing. That is, industry should be required to use the best technology available to reduce pollution, rather than addressing pollution by monitoring the environment and minimizing emissions to merely maintain environmental quality. The focus on technology rather than risk is the foundation of some existing environmental statutes, including portions of the Clean Air Act; however, progressives argue that this approach must be extended to all entities that pollute the land, air, water, and even the food supply.

Progressives agree with conservatives in how science is used in environmental decision-making—up to a point. The third progressive principle argues that environmental decision-makers must accept uncertainties in science, and conservatives agree with this concept. The major difference between progressives and conservatives is that progressives believe that decisions should be made in the face of this uncertainty, while conservatives generally call for more “sound science” to minimize the uncertainty. The authors argue that the Bush Administration has taken the science debate further by implementing such laws as the Information Quality Act, which invites challenges in the science used to make environmental decisions. The chapter on “rescuing science from politics” introduces the term “clean science,” which is not influenced by the government or corporations. Finding clean science has become increasingly difficult, with increased scrutiny from government and enhanced corporate funding of research projects. The solutions presented to this dilemma include understanding and valuing peer review, increasing public funding to scientists, and ensuring that the public has access to research studies.

Cost-benefit analysis and mandating sound science in developing [*451] environmental regulations has undermined the progressive principle of putting “safety first.” This fourth principle advocates for policies that focus on worst-case scenarios to ensure that decisions will be made that optimize environmental and public health protection. By requiring agencies to complete significant analyses to justify regulatory decisions, progressives argue that too many people have been exposed to dangerous substances such as asbestos, lead, radiation, and benzene. One solution presented here is to require the polluters to justify the need for the pollution, rather than placing the burden of proof on the regulatory agency or the stakeholders.

Environmental justice is discussed in the context of the progressive principle of fairness. This principle requires that all people have access to the decision-making process and that health-based standards are adjusted to reflect diversity. Additionally, removing the burden of proving discriminatory intent as part of environmental justice is a critical element of the progressive approach.

Additional progressive principles include ensuring that public resources are protected from private interests, including developers. The Bush Administration’s position on the Arctic National Wildlife Refuge and the Healthy Forest Initiative are presented as examples that go against the progressive approach of prioritizing and funding public land preservation. While the principle to preserve public resources is a domestic issue, global issues are also a component of the progressive agenda. The authors argue for the U.S. to cooperate more fully with international efforts to reduce environmental problems (e.g., Global Warming), to apply U.S. environmental laws to activities in which the government is involved overseas (e.g., defense activities), and to abandon the unilateral decision-making that has defined the Bush White House. [*452]

Throughout the book, the authors argue for federal environmental policy that embraces citizen participation. The progressive principles of a transparent decision-making process that truly empowers citizens to participate are critical to this participation. The Bush Administration has a history of making important environmental decisions behind closed doors and including mainly corporate interests in the process. This has led to an accountability problem in which the federal government does not believe it needs to answer to public criticism.

One of the best sections of the book presents tools that the policymakers can use in regulating the environment. In this section, the authors find technology-based standards and substance bans to be “useful” tools. Instruments such as the Toxic Release Inventory, which requires industry to disclose information and emissions trading approaches to air pollution control, are labeled “neutral” tools. The approaches that are most harmful to the environment are currently being used by the administration. These include spending an excessive amount of time analyzing and gathering additional information before decisions are made and so-called “voluntary” programs. The progressive agenda calls for strategies to eliminate tools such as cost-benefit analysis in lieu of making precautionary decisions.

Throughout the book, industry is portrayed as conservative evildoers who are in collusion with the Bush Administration to increase profits at the expense of the environment and public health. Phrases such as “regulated industries and their conservative political allies” (which appears on more than one occasion in this book) and “conservative judges favoring industry outcomes more often than liberal judges” explicitly identify the political orientation of the book’s authors. While this tone may be inflammatory to some, the authors make no apologies for their emphatic appeal to refocus government priorities on environmental policies that they believe truly protect the environment.



© Copyright 2005 by the author, Michele Morrone.

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NUCLEAR WASTE: LAW, POLICY AND PRAGMATISM

by Peter Riley. Burlington, VT: Ashgate Publishing, 2004. 324pp. $99.95/£55.00. Hardback. ISBN: 0-7546-2318-1.

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

pp.406-410

Until the recent and for many the alarming and very painful rise in the price of oil, most of what remained of the enthusiasm for nuclear power that used to be prevalent in the industry and among policy makers has been succored by technology changes. Somewhere in the not too distant future, perhaps, is the prospect of nuclear power stations that are smaller, safer, and smarter than those now in use. The improvements might even extend to waste production, perhaps by minimizing waste outputs and releases or by feeding back into the fuel cycle whatever waste is inevitably produced as a by-product of electricity generation.

Within the last year, however, as the price of a barrel of crude oil has climbed towards and sometimes beyond fifty dollars, nuclear power has regained some credibility on economic grounds, too. It is far from clear just how credible nuclear power now is as an energy policy alternative (Portney 2005). The nuclear option is creeping back into energy policy scenarios, however, including those of the Bush Administration, even though the last nuclear power plant to open in the United States started generating electricity in 1996 and no new plant has been commissioned by electric utilities or brought into the licensing and construction process in America since 1973.

The time may have come, then, to blow the dust off the multitude of books, articles, and reports about nuclear power that have accumulated in the last three or four decades, during the period since American domestic politics took the bloom off the nuclear rose, and take fresh stock of where we stand. This is certainly the context in which this new book about nuclear waste law and policy by Peter Riley might have value and relevance.

Much can be learned about nuclear waste law and policy in an international and comparative context. Although nuclear has for all intents and purposes been stymied as viable option in the United States for the last several decades, other countries have pushed ahead with civilian nuclear power programs. And still others would like to move in this direction, if they can navigate their way through the treaties that now seek to prevent accidents, manage wastes, and keep a lid on weapons proliferation. Indeed, some nations now take the view that they have a right to the peaceful uses of atomic energy in the context of an argument that few other energy sources have a comparable capacity to contribute to sustainable development.

Writing a book about nuclear waste affords an almost golden opportunity, then, to weave together and make sense [*407] of some of the major themes in domestic and international politics over the last thirty or forty years. It is also a chance to ask some tough questions about whether and how one of the most complex and sophisticated of modern technologies can be made compatible with the notion of sustainable development.

On the face of it, Riley is well-placed to capitalize on these opportunities. He worked for a time, so he tells us in his Preface (p.vi), in the nuclear construction industry. More recently, he has taught a postgraduate course in environmental law at DeMontfort University in Leicester, England. Moving through the various chapters of NUCLEAR WASTE, it becomes clear that Riley brings from these experiences a strong grounding in the scientific and technical aspects of nuclear power, which he takes up in the first two chapters of his book.

American readers will also be impressed with the breadth of the descriptive detail Riley provides in this book about law and policy. Standard treatments of the law of nuclear power do not come anywhere close to the richness of detail Riley offers about international nuclear law, European law, and the relevant statutory and case law at the national level in the United States, Britain, France, Finland, and Korea.

In the fourth and current edition of a classic work on environmental law in the United States, for example, nuclear power receives four and one-half pages (Schoenbaum, Rosenberg, and Doremus 2002). In the most widely respected treatment of international environmental law written by American authors (Hunter, Salzman, and Zaelke 2002) nuclear power is relegated to one small section of a larger chapter (Ch. 12) on hazardous wastes and materials. And in the international environmental law book most sensitive to developments in Europe (Sands 2003) nuclear power gets scattered and limited treatment in three chapters (Chs. 12, 13, and 18) out of twenty-one.

By contrast, Riley details case law from Britain, the United States, and other jurisdictions (pp.vii-viii). He presents tables of international and European instruments (pp.ix-x). And he identifies the primary and secondary national legislation relevant to the development and regulation of nuclear power in Britain, the United States, Finland, France, and Korea (pp.xi-xiv). Much of the book is then taken up with fleshing out the details of these legal materials, and mixed in with this there is some sporadic commentary on how the law works and what difference it makes in various contexts.

Riley considers national and international policy (Ch. 3), the attitudes and influences of various nuclear power stakeholders and how these are shaped by policy (Ch. 4), the different sources of law relating to nuclear waste and how these interrelate (Ch. 5), and national nuclear laws and the regulatory regimes they have spawned in his four case study countries (Ch. 6). The country case studies are not well-balanced, however. Much more attention is paid to Britain and the United States than to France, Finland, and Korea.

All in all, this is a substantial diet and there is a lot to digest after reading this book. Given its astonishing price, [*408] however, it is impossible to imagine than many individuals will buy the book, and it surely has no future whatever as a student text. It will probably find its way into some libraries, where scholars looking for a quick factual overview of the law and policy pertaining to nuclear waste might find the book a useful starting point and reference.

Riley has not made a lasting and significant contribution with NUCLEAR WASTE, however, partly because the rich descriptive detail he presents will quickly become dated, but chiefly because the book lacks a clear and consistent critical stance. One senses early on, for example, that Riley thinks the world needs more nuclear power plants. He is a technological optimist, a strong believer in the ability of well-meaning scientists and technicians to solve or minimize any problem that the further development and expansion of nuclear power might bring to light. He is sensitive to and very self-consciously patient with the legal and policy constraints imposed on the nuclear industry, around the world and at every level of government, in the last three or four decades. In the end, however, although Riley seems willing to tolerate some semblance of public and stakeholder participation in nuclear decision making, his real message, which he never quite summons the courage to state as boldly and explicitly as he should, is that policy makers and the public should put themselves in the hands of those who know the science and technology of nuclear power, and do what they say is feasible.

This is a very old and by now very shopworn refrain from technocrats who are caught up in the politics of energy and environmental issues: “We know what we’re doing. We are the only ones who really know what we’re doing. Trust us.” The single most astonishing and disappointing feature of NUCLEAR WASTE, therefore, is that Riley never once pauses to question this claim.

He never asks how and why it was that civilian nuclear power was sold (most would now say oversold) as an energy policy panacea after World War II. He never asks how and why the mighty nuclear power industry in the United States was stopped in its tracks in the early and mid-1970s by what in the beginning, certainly, was a rag-tag-and-bobtail collection of public interest scientists and litigators. There has to be a fascinating and important story there, but Riley does not tell it. And most astonishingly of all, given that this is a book about the law and policy of nuclear waste, Riley never explains the absolutely critical role that the high-level nuclear waste disposal problem played in forcing a fundamental public, regulatory, and legislative reappraisal of the promise of nuclear power. The critical waste disposal problem is still with us, and it is still far from being resolved, despite legislation Congress passed to try to address the issue in 1982.

This avoidance of history could conceivably be excused on the grounds that Riley did not want to make the writing of this book an occasion to revisit and stir up again conflicts and controversies that have been expensive and painful over several decades for everyone involved. But by avoiding history Riley leaves his readers adrift without knowing how he would answer some very basic questions. [*409]

Towards the end of the book, for example, in a section where Riley seems to want (finally) to explain his own point of view, he writes about the prudence of building more nuclear plants. He sees this, certainly in the British context, as a strategy that will help make the transition from reliance on non-renewable energy sources, like coal and oil, to renewables. “To ensure that new nuclear plants can be installed without valid opposition,” he writes, “and to meet justification requirements two problems remain to be resolved: the first is the question of economics and the second is the management of radioactive waste” (p.257).

This is a disconcerting sentence, coming as it does at the end of a three hundred page treatise. Where at this very late stage in the book did the concept of valid opposition come from? Was any of the opposition previously expressed to nuclear power valid? Was it valid to put an effective moratorium on new nuclear plant construction in the United States in the early 1970s? Or was that a grievous error? Other obvious questions occur, too, although plainly at this stage too late for them to be satisfactorily addressed. What, for example, is the difference between valid and invalid opposition to nuclear power? And who is qualified and on what basis to express valid opposition?

The other troubling aspect of the sentence I have quoted is that, notwithstanding everything Riley has said in six earlier chapters about nuclear waste management – that it is moving forward slowly but basically on the right track in the United States (p.186), for example, and that it is an impressive success story in Finland (p.205) – the final verdict actually seems to be that it is a problem still awaiting resolution. So, which is it? And in a book this long (and expensive) and written by someone whose perspective presumably is valid, are we not entitled to know how to answer that question, or to be able to read, at least, the author’s best judgment about whether we have a good, firm handle on the nuclear waste management problem?

What I think Riley really values in law and policy is clarity and certainty. He wants law makers and regulators to create a context for nuclear waste management in which scientific and technical experts can calculate parameters for risk, exposure, safety, and liability without being forced back to first principles to ask what any of these terms mean, or what consequences ensue for various affected populations if the parameter estimates are off the mark. History shows that such a scenario is highly improbable. But, as I said earlier, history is not one of Riley’s strong suits.

REFERENCES:

Hunter, David, James Salzman, and Durward Zaelke. 2002. INTERNATIONAL ENVIRONMENTAL LAW AND POLICY (2d ed). New York: Foundation Press.

Portney, Paul R. 2005. “Nuclear Power: Clean, Costly, and Controversial.” 156 RESOURCES 28-30.

Sands, Philippe. 2003. PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2d ed). New York: Cambridge University Press. [*410]

Schoenbaum, Thomas, Ronald Rosenberg, and Holly Doremus. 2002. ENVIRONMENTAL POLICY LAW (4th ed). New York: Foundation Press.



© Copyright 2005 by the author, Geoffrey Wandesforde-Smith

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ACCESS TO JUSTICE

by Deborah L. Rhode. New York: Oxford University Press, 2004. 265pp. Hardback. £18.50 / $29.95. ISBN: 0-19-514347-7.

Reviewed by John Michael Eden, Duke University School of Law, Email: john.eden@law.duke.edu and John Paul Ryan, The Education, Public Policy, and Marketing Group, Inc. Email: johnpryan@ameritech.net .

pp.432-438

Legal reform has been in the news since the 2004 presidential campaign. Republicans inside Congress and out bash attorneys, in part for stirring up too much litigation. Emboldened by their recent success in enacting jurisdiction legislation designed to discourage large awards in class action lawsuits, the critics seek new laws to limit the size of monetary awards to plaintiffs in medical malpractice cases. But this is not the kind of legal reform that Stanford University legal scholar, Deborah Rhode, has in mind in her latest book, ACCESS TO JUSTICE.

Rhode’s interests and critique of the legal system hark back to the early days of “law and society” research in the 1960s, with its focus on poverty law. Her central argument is that the distribution of legal services is severely skewed toward the powerful and wealthy. In Rhode’s view, our nation’s rhetorical commitment to equal justice seems to be a mere façade for the everyday subversion of this principle. She argues that “millions of Americans, including those of moderate income, suffer untold misery because legal protections that are available in principle are inaccessible in practice” (pp.4-5), citing domestic violence victims, elderly medical patients, disabled children, and defrauded consumers in particular. She also contextualizes this problem cross-nationally, by frequently comparing and documenting the much greater expenditures by Britain and other European governments on legal assistance for the poor.

Public perceptions and beliefs about equal justice, in part shaped by the mass media, account for some of the disconnect between the rhetoric and reality of “equal justice,” Rhode argues. Thus, she begins Chapter 2 on “Litigation and its Discontents” with a half dozen examples of apparently “frivolous” lawsuits in the public mind (typically involving individuals or consumers). In her view, this is “argument by anecdote” – a few individual cases and, indeed, ones that her own law students can not agree upon the merits of. She states that the key problems in this area are under-compensated victims, the high costs of litigation (including lawyers’ fees), and an over-reliance on courts fostered by the failures and inactions of legislative and regulatory bodies, rather than too much litigation.

Rhode reserves her sharpest critique for the legal profession itself, the primary audience to which this book is directed. Most of ACCESS TO JUSTICE focuses on the failures of the legal profession to [*433] provide legal assistance for low-income people in civil cases, the inadequacies of indigent criminal defense representation, and the insufficient practice of pro bono work in law schools and the legal workplace.

Legal assistance for the poor is a complicated story, which Rhode ably documents and places in historical context. She points out, for example, that the first legal aid organizations established in the United States in the late 19th century came not from the organized bar but from private (charitable) immigrant and women’s groups in New York and Chicago that were a part of the early Progressive movement. Indeed, she laments that “as late as 1950, only about 9 percent of legal aid funding came from the profession; the majority was from local charities, supplemented by private contributions” (p.60). The ever-changing political and legal challenges facing the Legal Services Corporation, established by Congress in 1974, are examined closely in a chapter on “Locked in and Locked Out: The Legal Needs of Low-Income Communities.” Rhode argues that low funding and case restrictions have greatly limited the effectiveness and impact of federal legal aid. The key underlying controversy that has led to these restrictions centers on whether legal aid should provide help for individual poor people or address the root causes of poverty, a dispute that Rhode analyzes through the lenses of both the political right and left. She recommends increased funding for legal aid from among a variety of options (e.g., increases in court filing fees or bar association dues, required pro bono service, and so on), eliminating restrictions on class action suits, amending legal aid eligibility to include the “near poor,” and encouraging collaboration and coordination between legal aid lawyers and other community service providers to address holistically the needs facing homeless people, battered women, and the unemployed.

Some of Rhode’s most critical analysis focuses upon the current state of representation for the poor in criminal cases. She is critical on three levels: funding and staffing, the quality of representation, and the review by appellate courts. Public defender systems suffer from high caseloads, inadequate budgets for investigators and experts, and pressures not to go to trial. But other systems utilizing court-appointed lawyers or contract bidding systems for indigent defense are much worse, in Rhode’s view. In these systems, it is much more likely that the defense lawyer will lack the background or expertise in criminal matters, or in capital cases in particular, required to prepare an adequate defense, or the financial motivation to do so. As a result, abuses seem commonplace in court-appointed systems, leading Rhode to excoriate the appellate courts that “have upheld convictions where lawyers have failed to do any investigation, cross-examine any witnesses, consult any experts, present any evidence, or even remain awake and sober during the proceedings” (pp.122-123). She also briefly discusses but finds few solutions to the challenges to zealous advocacy arising when criminal defense lawyers of all kinds represent highly unpopular causes or individuals.

Rhode provides an authoritative discussion of pro bono work in law firms and law schools, drawing upon [*434] both secondary sources and her own empirical study of attorneys. To draw a composite picture of the possibilities and realities of pro bono work in legal settings, she surveyed three groups – (1) lawyers who graduated from six law schools having different levels of commitment to pro bono service in the curriculum; (2) individual or law firm recipients of recent ABA awards for pro bono service; and (3) law firms listed by American Lawyer among the top 100 firms in gross revenue and for which data on pro bono service were publicly available. The response rate (28%, or 844 questionnaires) suggests the limits of mail surveys and perhaps the generally low interest in pro bono work. Her survey revealed highly motivated individuals who enjoyed and benefited from pro bono service – particularly, prison suits, death row appeals, political asylum cases, and the like. More frequently though, Rhode found lawyers who either had no desire to do this “extra” work, or who faced significant obstacles in their workplace policies and culture – notably, the “choice to make profits preeminent” (p.170) amidst a climate of escalating attorney salaries and accompanying pressures to achieve the expected level of billable hours. She also examined the pro bono experiences that lawyers reported from law school, finding that required pro bono service in the curriculum did not necessarily lead to positive outcomes in student satisfaction, career aspirations, or a willingness to contribute time later on. Rhode concludes the discussion with an exhaustive list of “best practices,” which law firms and law schools could adopt to close the gap between the promise and the reality of pro bono work.

In her short concluding chapter, “A Roadmap for Reform,” Rhode offers several clusters of approaches to increase equal access to justice. The first approach requires allocating considerably more resources than we currently do to open up the doors of justice to the poor and underserved segments of society. This would include increased federal and state government funding for civil and criminal legal assistance, as well as an expansion of pro bono work by law firms and law schools – most notably, through changes in the rewards and recognition for pro bono programs. Contrary to popular sentiment, Rhode does not believe that increased funding would be cost-prohibitive. She suggests that the required revenues could be raised by imposing new surcharges on lawyers’ gross revenues or new taxes on court filing fees.

The second approach includes an expansion of alternative dispute resolution mechanisms and the delivery of selected, routine legal services by non-lawyers, none of which has been much embraced by the organized bar. Of the innovations that Rhode considers essential, three seem particularly worthy of mention: (1) collaborative problem-solving tribunals that partner with other social service providers; (2) evening hours and community sites for hearings and legal assistance; and (3) personalized multilingual help for pro se litigants. In multilingual states like California, Texas and Florida, these latter reform proposals would surely have a positive impact on minority pro se defendants, since it is these populations that often face difficulties using English-only forms and clearly [*435] communicating the nature of their legal needs to monolingual attorneys.

The third approach would increase the accountability of the legal profession and the legal process, through more rigorous standards for effective representation, more sanctions for frivolous lawsuits, excess fees and ineffective representation, and better judicial and legislative oversight of legal services for the poor. In addition, Rhode also implores the legal academy to spend more time and resources inculcating a sense of justice and fairness in its graduates, an especially pressing concern given that “only 1 percent of surveyed lawyers recall any coverage of pro bono issues in [the courses they took] on professional responsibility [in law school]” (p.192). Although lawyers are not the only source of the problem, Rhode insists that “[e]ven lawyers are often ill-informed about the unmet legal needs of middle and low-income Americans and the strategies necessary to address them” (p.192).

Rhode’s political sensibilities drive the main arguments, recommendations and conclusions of ACCESS TO JUSTICE. She is a political “liberal” who advocates increased government spending on the poor and surcharges on legal services used predominantly by the wealthy. She also supports the eliminating or relaxing of restrictions on the kinds of cases that legal services lawyers can take. Yet she occasionally offers limited support for reforms that “conservative” critics of the legal profession advocate, including reducing excess lawyers’ fees and sanctioning “frivolous” lawsuits. Most of her arguments and calls for reform, however, are directed to the legal profession, including the organized bar, law schools, practicing lawyers, and the courts. In her view the legal profession can take many steps, large and small, to reduce the current gap between the rhetoric and reality of “equal access to justice,” recommendations that she intersperses throughout her analysis.

Political scientists will probably be less comfortable than legal scholars with the style of the book, particularly the relationship between arguments and data/documentation. ACCESS TO JUSTICE is a brief in search of data – albeit, certainly a well-argued brief supported by extensive endnotes. Rhode provides plenty of support for her arguments, but this is not an empirical study. To her credit, she draws upon a wide range of literature, including legal scholarship, bar association studies, government reports, law and society research, and some political science/public law work. But her endnotes – with the diversity of works cited and her commentary – are at times more trenchant and perceptive than the text, where she occasionally lapses into simple rhetoric. Nowhere is this more evident than in Rhode’s discussion of indigent representation in criminal cases. Here, she makes little use of the extensive empirical findings about the system from the political science or criminal justice literatures, instead relying upon anecdotal evidence of individual abuses, mostly in southern states and drawn from newspaper accounts. By contrast, her analysis of pro bono service avoids these pitfalls.

That said, while it would be unfair to characterize Rhode’s central argument as fractured or incomplete, ACCESS TO JUSTICE is unlikely to convince those who remain skeptical that anything [*436] needs to be done to provide the resources to indigent and needy citizens that wealthy citizens already enjoy. This may seem an unfair criticism of a book that is designed to stimulate—not settle—a debate about disparate levels of access to the justice system. This criticism may seem especially unfair from the perspective of the careful reader of Rhode, who could point out that she remains ever cognizant that her suggestions for reform fall short as ready-made, serious policy proposals. To be sure, ACCESS TO JUSTICE is not a set of detailed, one-size-fits-all policy proposals. And it need not be to provide a systematic and compelling treatment of the challenges that indigent and low-income individuals face in the civil and criminal justice systems. However, Rhode’s book is not organized or written in a way that will convince hard-nosed skeptics that our criminal and civil courts ought to be more responsive to the needs of indigent and low-income litigants.

Political theorists and theoretically-oriented law professors will also wonder why Rhode avoided tackling the most direct challenge to the main drift of ACCESS TO JUSTICE – i.e., the one posed by the Chicago School of Law and Economics. If restricted access to the resources necessary to mount an effective defense has had the effect of preventing defendants who are “guilty of something” from being released on “legal technicalities,” why not artificially inflate the costs of legal services (in the criminal context) for everyone—since by hypothesis, wealth is really what allows defendants to end-run the legal system and purchase “justice.” In other words, if there really is an inverse relationship between money and substantive justice, then perhaps expenditures on legal services should be restricted for all defendants, wealthy and poor alike. From this perspective, the constitutional protections inscribed in the Sixth Amendment need not be respected if by ignoring them we can achieve higher conviction rates for guilty criminals.

Rhode does offer some arguments that obliquely bear on this challenge. First, she claims that we already do embrace “equal justice as a social ideal,” despite our practical indifference to the violations this ideal sustains in the real world every day (p.19). Second, in the course of endorsing the idea that strong due process rights are essential to our form of government, Rhode contends that lawyers have a special normative obligation to protect all those who are accused of a serious crime because lawyers have a monopoly over the provision of legal services. Third, on a number of occasions she reaffirms the legitimacy of the Sixth Amendment and its continued importance for the fair and just administration of the law. Each of these claims is suggestive, but unfortunately she never melds them into one cohesive argument. Given that the rights Rhode supports are grounded in the Sixth Amendment, one would think that the critique of the current regime would be accompanied by a more systematic argument predicated on the authoritative text of the Constitution. In our view, Rhode could have more carefully revealed just how hostile the Chicago School is to the guarantees inscribed in the Sixth Amendment.

Finally, we think Rhode has missed an opportunity to influence public discourse about this important topic. While [*437] the book is written in highly academic prose, most of the concerns that serious scholarly critics might have of her proposal go unaddressed. The book’s loose organization and casual sequencing of topics do not lead to the telling of a compelling story. Moreover, ACCESS TO JUSTICE carries with it no subtitle to convey Rhode’s key message about lack of access, and the book’s cover photo (an empty jury box) bears little relationship to the main themes. Criticizing Rhode on these grounds may initially seem trivial, but the book’s very importance for the larger questions of distributive justice and democratic progress, and the sheer difficulty of effecting positive social change in this connection, make the details of Rhode’s case—including matters like organization, tone, and presentation—important enough to deserve scrutiny.

On balance, Rhode has written an important, thoughtful, and well-argued book. For some of the reasons noted above, however, ACCESS TO JUSTICE may not have a significant impact on the normative debate about the availability of adequate legal services for the poor and other underserved groups. This is unfortunate, particularly in light of how clearly Rhode understands the conservative and left critiques of increasing access to legal services. It is also difficult to predict precisely what impact ACCESS TO JUSTICE will have on the development of effective public policy or reforms of the legal profession. On the other hand, Rhode notes that many law schools have considered implementing more aggressive pro bono programs to encourage students to take a more active role in providing legal services for those who most need them. She believes, and rightfully so, that the ABA could encourage the implementation of such programs by requiring law schools to report statistics concerning the public service contributions of their respective student bodies.

One might also recognize the plausibility and appeal of measures to increase accountability among members of the legal profession. However, given the current hostility within the legal academy to traditional forms of normative reasoning about matters of policy, a hostility nurtured in large part by the Chicago School, critics will find it all too easy to contend that monitoring legal-service providers has transaction costs that may indeed outweigh the benefits of providing equal representation for indigent and low-income defendants. As Richard Posner of the 7th Circuit Court of Appeals opines, “If [the lawyers who represent indigent criminal defendants] were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for defense of indigent criminal defendants may be optimal” (Posner 1999, at pp.163-164).

Rhode calls Judge Posner’s complacency a “due process disaster” (p.125). And she is absolutely right. It is easy to stand with Rhode in condemning attitudes such as these, sentiments that present resignation and smug complicity as if they were the best possible pragmatic reactions to the facts of life in the modern courtroom. Nevertheless, it is also important to realize that Rhode has not adequately challenged – or offered alternatives to – the very complacency that makes our current regime possible. [*438]

REFERENCE:

Posner, Richard A. 1999. THE PROBLEMATICS OF MORAL AND LEGAL THEORY. Cambridge, Mass.: Harvard University Press.



© Copyright 2005 by the authors, John Michael Eden and John Paul Ryan.

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CATASTROPHE: RISK AND RESPONSE

by Richard A. Posner. New York; Oxford University Press, 2004. 336pp. Hardback. £16.99/$28.00. ISBN: 0-19-517813-0.

Reviewed by Stephen Meinhold, Department of Political Science, University of North Carolina Wilmington. Email: meinholds@uncw.edu .

pp.429-431

After reading the first sentence of federal judge Richard Posner’s CATASTROPHE, I was reminded of the way a weather service professional friend of mine once described what would happen if a category five hurricane made a direct hit on our community: “we’re all going to die” he said. Posner’s book examines hazards that are apocalyptic in scale—major asteroid collisions, bioterrorism, lab accidents and abrupt global warming. This is scary stuff—no less than the extinction of the human race! Posner’s trademark style is evident throughout, a careful author and analyst he presents cogent arguments supported by firm evidence. But by the last sentence, which is a call to action, I was left more confused than certain about what to do about these hazards. The hazards are real, that is for sure, but whether the strategies he proposes for protecting us from them are reasonable deserves much more debate. So much of the book is about the hazard events and how to calculate the risk presented by them that I am going to make a rather unorthodox suggestion to readers who are mainly interested in the “law” part of the Law and Politics Book Review—read only Chapter 4. I will briefly discuss the contents of Chapters 1-3 and then focus the bulk of my review on the chapter most closely connected to the law.

Chapter One introduces the reader to a variety of catastrophic risks, including pandemics, asteroids, stranglet disasters, omnivorous nanomachines, genetically modified crops, artificial intelligence, global warming, exhaustion of natural resources, loss of biodiversity, population growth, nuclear winter, bioterrorism, and cybertorrism. Each of these hazards is examined in a serious yet brief way that should be accessible to a wide audience. One can quibble with the degree of attention given one hazard over another—nuclear winter gets four pages while stranglet disasters get five—but the overall treatment is readable and makes the point about the great potential for catastrophes. Wondering what a stranglet disaster is? It is described as the accidental production of “strange” quarks from the collision of atomic particles. A stranglet, once created might “keep growing until all matter was converted to strange matter” (p.31)). A serious catastrophe! Despite my preference for greater attention to the more likely (as I see them) hazards, focusing on such worst case scenarios (or highly improbable hazard events) can be beneficial (Clark 2005). But in the end little of Chapter One is directly related to the law.

Chapter Two addresses the reasons why we do not much care about the realities of or the expected results of these catastrophic risks. Posner examines cultural (scientific illiteracy—especially of lawyers and judges, science worship, science fiction, scientific doomsters, [*430] optimists, and limited time horizons), psychological (false positives, attention span, and temperament) and economic factors (economics of innovation, global decentralization, and public choice) that limit efforts to deal with these hazards. This chapter is a call for greater scientific literacy more than anything else. A theme that Posner will return to in the more law related content of Chapter Four. The logic of his presentation suggests that greater scientific literacy would offset the strong limiting forces of psychological and economic factors, which get considerably less attention. The evidence presented for a scientifically illiterate population is convincing, but the conclusion that leaps in scientific understanding would make people care more about these highly improbable events is more a testable hypothesis than it is accepted fact.

Chapter Three advocates the application of cost-benefit analysis to the evaluation of catastrophic risks. Cost-benefit analysis is creatively applied to several of the doomsday scenarios that Posner describes in Chapter One. This chapter could prove useful in modules or classes on cost-benefit analysis, public policy, or hazards and disasters. His conclusion that the benefits of mitigating (or eliminating altogether) the effects of such catastrophes as stranglet disasters, global warming, and bioterrorism outweigh the costs of action will not go unchallenged, but they do present a unique and creative attempt to address the problems faced by advocates of immediate action on these vexing hazards.

For the law and courts inclined, it is Chapter Four that raises the issues of greatest interest. The Chapter title is “How to Reduce the Catastrophic Risks,” and not surprisingly, Posner blames the law and lawyers for not doing more to reduce the likelihood of catastrophic events. Specifically he makes two points. First, the legal profession (and judges) is mostly scientifically illiterate. Second, and more importantly, he argues that lawyers may be hindering attempts to reduce the likelihood of terrorist events because of their overly enthusiastic (and unwarranted in his view) protection of civil liberties. In particular he makes an argument for greater “police” and “extreme police” measures in combating such catastrophes as bioterrorism and computer hackers—for whom he singles out particularly harsh treatment. I address both of these chapter topics in greater detail below.

For prelaw students and others engaged in thinking about the quality and content of legal education, Posner’s arguments in favor of a scientifically literate legal profession are sure to stimulate debate. He makes the clearest articulation I have seen in some time of the divide between science—in which “propositions are accepted only if they survive confrontation with experimental data” and law—where “the idea of subjecting a legal proposition to a decisive experiment—an experiment that might refute it—horrifies the lawyer” (p.201). Posner offers several ways to fill the void of scientifically trained lawyers—including requiring law students to show proficiency in math and science, or expecting that law school applicants would have more than a trivial amount of undergraduate math and science. He even goes so far as to suggest a new subfield, the catastrophic-risk lawyer. I [*431] teach at a University (UNCW) where a substantial number of students enroll as science majors (mostly marine science) but end up interested in something else—sometimes the law. As a prelaw advisor I often find myself trying to persuade these science-oriented students to stick with their science major and then apply to law school, even though they often want to bail out and choose a non-science degree program. This section of Posner’s book is going to become required reading for these students!

The second, and much more controversial, section of this Chapter deals with a variety of different police measures that Posner argues could successfully be employed to reduce catastrophic risk. He argues that the threat of post-disaster sanctions is inadequate to deter terrorist behavior and thus greater emphasis should be placed on “prophylactic measures, possibly including some curtailment of the civil liberties to which Americans have grown accustomed” (p.226). In a very fine fashion Posner sets up and then confronts a series of arguments by civil libertarians against the curtailment of rights. He suggests that civil rights lawyers make two general mistakes. First, they overstate the constitutional importance of the recent expansion of civil rights, such as the fourth amendment. Here he argues that searches related to national security are more reasonable than unreasonable because the threat posed by those who threaten our national security is so much greater than that posed by common criminals. The second point is that civil libertarians do not understand the magnitude of the risk from catastrophes—because they are scientifically ignorant—and therefore they mistakenly reject any restriction or reductions to civil liberties. Posner also includes a fairly lengthy discussion of torture as a police measure which may provide some benefit to authorities charged with protecting the national interest. This section will be particularly useful to scholars and students grappling with the merits and drawbacks of using torture to extract information from suspects.

It is a rather unconventional recommendation to suggest picking up a book for just one chapter, but I think it is fair to suggest that law and courts scholars and students will find most of Posner’s CATASTROPHE unrelated to their work. But Chapter Four provides important and useful material for the study and teaching of law and courts, and even better, it stands alone and can be read without studying the earlier material. Once again, judge Posner has added to our cultural dialogue in a useful and interesting way.

REFERENCE:

Clark, Lee. 2005. WORST CASES: TERROR AND CATASTROPHE IN THE POPULAR IMAGINATION. Chicago: University of Chicago Press.



© Copyright 2005 by the author, Stephen Meinhold.

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DIGITAL CROSSROADS: AMERICAN TELECOMMUNICATIONS POLICY IN THE INTERNET AGE

by Jonathan E. Nuechterlein and Philip J. Weiser. Cambridge, MA: The MIT Press, 2005. 672pp. Cloth. $40.00 / £25.95. ISBN 0-262-14091-8.

Reviewed by Ann Bartow, University of South Carolina School of Law, University of South Carolina. E-mail: Bartow@law.sc.edu

pp.362-365

Jonathan Nuechterlein and Philip Weiser open the Preface of this book by stating that they set out to write a book that both explains “telecommunications competition policy in the Internet era” clearly, and makes “substantive contributions to the major policy debates within the field.” By expostulating the shape and history of the telecommunications industry with substantial detail and precision, they have achieved their first goal, and are likely to attain the second as well. Their contribution to multilayered understandings of the economic complexities of specific sectors of the telecommunications industry is likely to be considerable. Whether or not the book facilitates adoption of actual policy recommendations, at least readers will have a good sense of which dominos are likely to fall when policy changes are engineered.

Chapter 1, entitled “The Big Picture,” lays out economic characteristics of the telecommunications industry, and then explains the changes to it wrought by “convergence,” which the authors define as “the competitive offering of familiar telecommunications services though unconventional technologies” (p.3). The chapter explains and illustrates concepts such as “network effects,” “creative destruction,” and “scale economies,” which are often invoked in telecommunications literature, and not always consistently. Throughout the book the authors continue this practice, highlighting and defining the inordinate number of buzzwords, catch phrases and acronyms that seem to colonize the telecommunications discourse.

The chapter also explicates the reasons that telephone companies are regulated differently than cable companies, even though they may provide the same services to consumers. Evidencing an overarching cynicism about regulation, and parallel optimistic about the virtues of competition, the chapter closes with an assertion that “the ultimate aspiration of telecommunications policy” is a world in which there are multiple “facilities based platforms” for each telecommunications-related service. This theme is returned to, and elaborated upon, throughout the book.

Chapter 2 provides an “Introduction to Wireline Telecommunications,” Chapter 3 discusses “the current rules governing competition among wireline carriers” under the Telecommunications Act of 1996, and Chapters 4-10 describe “issues raised by competition between wireline telecommunications carriers and their non-wireline rivals, such as cable companies and wireless carriers” (pp.31-31) [emphasis in original]. Chapter 11 shifts from “platforms that deliver voice [*363] and data traffic” from point to point, to “video distribution platforms,” local broadcasting, cable, and satellite dissemination of television programming. Chapter 12 discusses telecommunications standards, and uses digital television as a “case study.” All of these chapters contain enormous amounts of descriptive information. While virtually every paragraph, indeed almost sentence, is studiously clear and eminently comprehensible, the number of complex and important ideas in each chapter accumulates rapidly into a somewhat dense and Byzantine thicket of concepts. Luckily, the authors fairly regularly provide clear and straightforward summaries and conclusions. With a little patience, the reader comes away with a good grasp of the interconnected nature of the telecommunications industry, and the general lack of governing principles in the area that cohere across technologies.

A paragraph a few pages into Chapter 3 illuminates the importance of the wording and interpretation of statutory authority in the telecommunications context, by explaining:

The rules we are about to describe are default rules only. In theory, incumbents and competitors are free to negotiate whatever arrangements they like, so long as they do not discriminate against third parties. But, given the inability of incumbents and competitors to agree on very much, in part because no company has any incentive to agree to outcomes less favorable than what it could receive from regulators, these default rules end up governing the most important aspects of local competition. (p.79)

Thus the reader begins to understand that the government regulates relationships not only between private telecommunications companies and consumers, but between the companies themselves, and even within the companies themselves, to a very high degree, making the content and application of these regulations of critical importance. Property-like rights in telecommunications markets and infrastructures are extensively state defined and state allocated, and any changes in market conditions, or in the rules that govern them, can dramatically affect the opportunity sets of other actors.

The book does an excellent job of laying out, in seemingly exhaustive fashion, the economic and social policy considerations that underpin a wide variety of telecommunications laws, rules, court opinions and customs. The authors then identify inequities and inefficiencies that are inherent in certain regulatory regimes, or that emerge or are exacerbated as commercial circumstances or technologies change. Chapter 13, the final chapter, lays out what the authors term “four values for managing competition policy.” Those values include determinacy (development of rules that can be readily ascertained and predictably applied), expertise (decision-making institutions understand the technologies and the industry), neutrality (maintaining a primary focus on maximizing consumer welfare) and humility (an inclination to “respect the market’s ability to enhance consumer welfare” and “to give due regard to the unpredictable course of technological and economic change”). The authors do not, in this chapter, advance any grand normative recommendations about the proper distribution of wealth and power, nor any overarching affirmative theory about [*364] the role of telecommunications in a democracy. Instead, the authors sketch out pragmatic suggestions around which future policy decisions could be oriented, echoing the approach taken in the previous chapters.

The book’s descriptions and illustrations have a marked antiregulatory, pro-competition slant, despite the authors’ stated goal of “remaining objective and nonpartisan” (p.xvi). In fairness, there is so much to criticize about specific past and current regulatory regimes that perhaps even a dedicated Socialist would find cause for pessimism about the government’s ability to incentivize effectively private investment and innovation in communication technologies and protect the interests of consumers simultaneously. The authors certainly do not appear to advocate for the position of any particular telecommunications industry sector or player, and unquestionably achieve a tone of neutrality in that sense. Still, they may underestimate the desire and ability of many companies to dominate markets and avoid or suppress competition by any means available. They do not appear either to favor or expect increased government investment in, and ownership of, actual telecommunications infrastructure.

Given that one underlying premise of the book is that the telecommunications industry is unique, the clarity of the descriptions might have been improved with fewer analogies to non-telecommunication issues. Comparing telecommunications conflicts to antitrust disputes, for example, does little to simplify the underlying concepts to the reader. However, many of the historical anecdotes, such as those referencing Alexander Graham Bell (pp.115-116), Albert Einstein (p.227), or the personal experiences of the authors themselves, were interesting and often charming, and provided some much needed relief from the occasionally black hole-like density of the material.

The substantive text of the book runs for 429 pages. Appendix A, immediately following the text, explains in fairly detailed fashion the FCC’s pricing methodology in determining the price a competitive local exchange carrier must pay an incumbent local exchange carrier to lease its network elements. Appendix B briefly recounts the FCC’s enforcement mechanisms. This is followed by a “Statutory Addendum” that provides excerpts of the Communications Act of 1934 as amended by the Telecommunications Act of 1996 reprinted in a rather small font; a lengthy List of Notable Commentaries; a Table of Authorities, Notes (a.k.a end notes) chronologically by chapter; an Index, and finally, a Glossary of Acronyms.

A few mundane editorial comments: Too many words and phrases are italicized for no apparent reason (often there are several in a single page), and clichéd phrases like “to be sure” are, to be sure, somewhat overused. The “List of Notable Commentaries” at pages 491-512 would be more useful if the page numbers referencing these works were included, so that the reader could see the impact that each “notable” book or article mentioned had upon the text. The Index at pages 644-665 does not provide this function because, although some scholars’ names appear, many of the authors of the “Notable Commentaries,” (for example, Ed Baker, Jim Chen, John [*365] Duffy, Michael Froomkin, Mark Lemley, Neil Netanel, Howard Shelanski, Jim Speta and Jonathan Weinberg, to name just a few) are not referenced in the Index at all, so the reader has no way of knowing what impact, if any, said “Notable Commentaries” had upon the authors’ thinking, unless she is prepared to undertake an exhaustive search of the Notes section at the end of the tome.

Overall, this is an impressive work that will be useful to anyone desiring an advanced understanding of telecommunications laws and policies, particularly a highly motivated reader with an intense interest in this subject area. Given the reasonably detailed index and the impressive breadth of subject areas covered, it would also serve as a useful reference work for anyone desiring brief but sophisticated accounts of individual telecommunications issues. It serves as a practical “nuts and bolts” counterpoint to more deeply theoretical works of recent vintage, such as the excellent MEDIA, MARKETS AND DEMOCRACY by C. Edwin Baker.

REFERENCE:

Baker, C. Edwin. 2002. MEDIA, MARKETS AND DEMOCRACY. New York, NY: Cambridge University Press.



© Copyright 2005 by the author, Ann Bartow.

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PEACE TREATIES AND INTERNATIONAL LAW IN EUROPEAN HISTORY: FROM THE LATE MIDDLE AGES TO WORLD WAR ONE

by Randall Lesaffer (ed). NY: Cambridge University Press, 2004. 504pp. Hardback. $130.00/£75.00. ISBN: 0-52-182724-8.

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

pp.471-474

An historical treatment along two dimensions, of the international legal development in western Europe (although the book’s title employs the colloquially regional reference to the entire continent) from the late 15th century to the end of World War One and the diplomatic effort that ended that armed conflict, the Treaty of Versailles (1919) and, according to editor, Randall Lesaffer, “a history of European peace treaty practice” (p.3). While periodization is, of course, the methodological stock and trade of historians and hence political scientists might quibble with the rationale for either end of the temporal spectrum employed, but it does set out a particular context.

The book results from the collection of papers presented at a vaguely referenced project carried out by the Department of Jurisprudence and Legal History and the Schoodijk Institute of the Tilburg Law Faculty, at Tilburg University, The Netherlands, in March 2001 as a conference on “Peace Treaties and International Law in History.” Nineteen essays are offered by 16 contributors (for what it is worth, 4 German history professors, 3 German law professors, 2 emeriti German law professors, 2 Dutch history professors, 1 Dutch research fellow, 1 Belgian history professor, 1 Belgian research fellow, 1 French history professor, and 1 Scot law professor) in four parts. The stated purpose of the collection is to invigorate the interest in the history of international law, which today admits to only one journal and a dearth of recently published material. The coverage is generally dense with subject matter ranging from recondite to arcane, relying heavily upon ancient materials punctuated by numerous references to any number of treaties without sufficient background to digest their meaning adequately.

Part One provides an overview, presented in chronological order, beginning with the Peace of Lodi (1454) and proceeding to the Treaties of Paris (1919/20). We learn from Roman law that the concept of peace, pax, is at best imprecise leaving the conclusion to scholarly examination of ancient texts and an etymological examination combined with a required understanding of related grammar. Roman law evolved into the canon law of the Roman Church and clearly had an impact on western civilization well into the medieval period. Peace treaties, or at least mutually agreed arrangements among rulers, then later among designated negotiators, show efforts were ratified by rulers. From the 12th century onward, diplomatic negotiations, it is noted, are enhanced by individuals who had formal [*472] education which by this time had become a professional enterprise. One interesting chapter focuses on the role of body language in the negotiating process, centering in part on an esoteric examination of the role of the kiss (probably the origin of the mafia’s bacio della morte).

Part Two sets out the political foundations of modern international law by searching for the roots in antiquity of political practice in the Middle Ages and the scholastic underpinnings of the traditions of the time. Included here, because of the pervasiveness of Christianity and its role in European political development, is a close examination of canon law. Part Three is far more engaging when contributors write about German international lawyers and the creation of the Hague Conference system and the contributions of Lassa Oppenhem to the current academic study of international law. We also learn about the 18th and 19th century understanding of the concept of “peace,” particularly as those changes in understanding relate to the evolution of the state system and the growing importance of international organizations.

The penultimate part then looks at what most today date as the beginning of the modern nation-state system, the Peace of Westphalia, and the nexus between Christian Europe and the Muslim East with treaty relationships established by various states in Europe and the Ottoman Empire. It is in this section that we find some essays that have a more practical, political science disciplinary use than others. “Westpahia and Roman Law” by Laurens Winkel, for example, is one where more contemporary politically relevant matters of ius gentium and uti possidetis are described. The notion that the sovereign state miraculously emerged from Westphalia is dismissed, noting that treaties between princes were nothing more than contractual agreements between leaders, not political entities. Indeed, prior to the Thirty Years War, what we, today, consider as a peace treaty, were essentially princes attempting to follow the notions set out by Saint Augustine, who for Christians began a treatment for the justification for Christians to shed the blood of fellow Christians. Hence, a peace treaty was to restore the Augustinian quality of peace in the larger Christian community. Ius commune is the resulting confluence of Roman and canon legal traditions. In the early 16th century, the medieval legal order collapsed in Europe, primarily because of the Reformation, leaving some kind of a vacuum, ultimately filled by state sovereignty. At this point, we see the movement from agreements to congresses and third party participation which amounted to a guarantee of adherence to negotiated settlements. A discussion is provided on the relationship of peace treaties and constitutional practice and how important it was to restore commercial relations in a post-conflict period. Perhaps the most cogent statement is to be found in the essay by Heinhard Steiger who deals with the modern period from the end of the Napoleonic wars to the conclusion of World War One. The former conflict consolidated a European concept of power establishment, while the latter sought to create a more global political order. It was in the 20th century, however, that non-European regions finally come into play. [*473]

A set of conclusions follow, offered by Lesaffer, all of which are instructive: 1) The form of a peace treaty after the establishment of the Westphalian state system was based on the practice of sovereigns in the late 15th, early 16th centuries; 2) the legal concept of ius commune ultimately led to ius gentium; 3) it was the Reformation that reduced the medieval equilibrium of the Latin West and brought about new problems that ius commune simply never addressed, thus losing its presumptive authority; the generally held notion that the Peace of Westphalia is the cornerstone of the nation-state system is challenged, though Lesaffer does not entirely trample on the idea, since it represented the beginning of an evolutionary process; 5) Westphalia, in effect, limited the authority of sovereigns; and 6) Westphalia was not a complete break from the past, although certainly an important milestone. The end of World War One brought about a new political world order and, arguendo, an emergent legal system and tradition. Completing the tome is an appendix, in Latin, of the RUBRICA DE PRINCIBUS by Martinus Garatus Laudensis, the famous 15th century Italian canon lawyer. This work, for those unfamiliar, is one of the key treatises on the law of treaties before the second half of the 17th century.

The focus of the bulk of the material is selected historical developments in those states whose heritage can be traced to Roman and further back to Germanic tribal law, which then becomes the basis of medieval civilization in Europe. What attention is afforded to non-Christian European sources is a facile concern with the Ottoman Empire whose expansion into Central Europe matched the cultural threat of the Moorish invasion and occupation of Spain and southern France. There is a problem here, I would argue, namely that as increasingly more pages appear to provide a greater understanding of international law based upon European sources, there is a tendency to glance away from non-European contributions, e.g., Asian, and diminishes the utility for a comparative legal perspective.

A peace treaty, in effect, is an agreement either to reduce those conditions that lend themselves to escalatory relations and increase the potential for armed conflict, or to remove those same conditions to remediate political harm that occurs because of military violence among states. While it is difficult to determine the exact nature of “peace,” or perhaps because it is so difficult to do so since lawyers are wont to claim definitio perculosa est, so it is similarly the case in the contemporary political world with regard to the nature of “war.” Hence, when does one condition end and the other begin? Recall, if you will, that the American involvement in the Vietnamese civil war ended with an Executive Agreement, and the Persian Gulf War (1990-91) concluded with a UN Security Council Resolution. What is the utility for the political scientist?

This is a book for the serious scholar of medieval and ancient history of law in general and international law in particular. The required familiarity and appreciation for western European history certainly may find a dismissive bent among many in the political science academy. Those who can most appreciate the efforts should have some familiarity with lingua latina as well as German. A further serious deficiency for [*474] a book of this type, i.e., an historical overview and evaluation, which should be acknowledged is the lack of a bibliography, especially given the commendable depth of coverage. The hefty scholarship presented, nevertheless, should garner proper attention, not only for the effort displayed, but also for the opportunity to better understand the contemporary international political environment.



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

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DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECHNOLOGY OF JUSTICE

by David Lazer (ed). Cambridge, MA: MIT Press, 2004. 424pp. Cloth. $67.00 / £43.95. ISBN: 0-262-12265-0. Paper. $27.00 / £17.95. ISBN: 0-262-62186-X.

Reviewed by Lawrence E. Rothstein, Department of Political Science, University of Rhode Island. Email: LER@URI.EDU

pp.359-361

This collection of essays, edited by David Lazer, focuses on the policy and ethical issues concerning the collection, use and banking of DNA samples and related information in the criminal legal system. The book stems from the DOJ’s National Commission on the Future of DNA and an important conference at the Kennedy School in 2000. The essays are written by many of the top experts in the field, including Justice Stephen Breyer, Frederick Bieber, George Annas, Troy Duster, Sheila Jasanoff, Michael Smith, and Barry Steinhardt. While all the authors accept, although some reluctantly, that the importance and collection of DNA profiles will grow, most of them recognize that the difference between DNA and either fingerprints or other medical information raises severe problems concerning inappropriate uses, erosion of rights, and discrimination.

One area of consensus is that DNA is different because of its effect on the meaning of time in the criminal legal process. As DNA may be validly analyzed long after it is deposited at a crime scene, it undercuts the rationale of statutes of limitations for prosecutions and time limits on the presentation of new evidence after conviction. DNA analysis is also seen as different because of its ability to turn up information other than the match of a source sample to a crime scene sample and to confirm the identity of a source. Family linkages, ethnicity and medical conditions may all be revealed by DNA analysis.

Other areas of agreement among the authors are that DNA has the most influence at the investigative and post-conviction stages of the criminal process rather than the trial phase. Post-conviction DNA testing, establishing innocence after long terms of imprisonment or sentences to death, has raised substantial concerns about the fairness and accuracy of the entire criminal legal process. The importance of the use of DNA evidence post-conviction, however, will eventually lessen as old cases are disposed of and DNA analysis becomes readily available in current cases. DNA collection and analysis is most important in the investigative stage where it can generate cold hits from offender and crime scene databases or narrow down suspect lists. The importance of DNA evidence at trial is less because exculpatory DNA evidence will often prevent a trial, eyewitness evidence may still be more persuasive for juries, questions about the adequacy of collection and analysis procedures may overshadow the results of the analysis and the reaction of juries to the statistical presentation of analytical results is uncertain.

There is also consensus that the creation and extent of DNA databases and the use [*360] of DNA evidence in the criminal legal process are based on policy decisions that have been heavily influenced by anecdotal evidence of the value of the evidence and databases in solving crimes, rather than data from rigorous studies of its actual crime-solving potential. This presumed value is also enhanced by the political value of promoting any procedures that arguably lead to the more effective apprehension and conviction of violent criminals. The putative value of DNA evidence is then weighed against the equally unmeasured dangers of privacy invasion and racial discrimination.

The book is not for those who have little or no knowledge of the techniques for analyzing DNA or the specifics of the use of DNA evidence in court. Only Frederick Bieber’s essay deals with the former, and none of the essays deal with the latter. Yet, knowledge of these aspects of DNA forensics is necessary to place the anthology in perspective. The essays do an excellent job of outlining the policy and ethical controversies surrounding DNA in the criminal legal system. The first part of the book, Chapters 1-4, lays the conceptual, historical and procedural groundwork for the use of DNA in the criminal legal system. Bieber provides the technical basis of DNA analysis; Simon Cole provides an historical comparison of identification technologies such as body measurements and fingerprinting, suggesting that all of these technologies have been imbued with greater probative value and links to criminal behavior than are warranted. Stephen Breyer, Edward Imwinkelreid, and Margaret Berger discuss the integration of DNA into investigatory, trial court and post-conviction procedures leading to the consensus that trial court use of DNA evidence has less revolutionary effect than the use of DNA in the investigation and post-conviction stages.

In the second part, Chapters 7-12 lay out and confront the ethical issues regarding collection of DNA and creation of DNA databases. George Annas’ essay does not deal specifically with criminal legal system collection and use of DNA, but rather outlines the arguments for legal protection of genetic privacy. The gist of his position is that only uncoerced informed consent prior to the collection of samples or data concerning DNA can protect a person’s privacy and autonomy interests in her or his “future diary.” Similarly, R. Alto Charo primarily considers research and clinical uses of DNA to build a case for the “Recommendations of the National Bioethics Advisory Commission on Research Involving Human Biological Materials.” Barry Steinhardt, of the Innocence Project, concludes that DNA databases must be as limited as possible and that no arrestees or suspects should be included in the databases. In contrast to Steinhardt, D. H. Kaye and Michael Smith make the case for universal inclusion in a DNA database to offset the already discriminatory effects of inclusion based on prior interactions with the criminal legal system. Amitai Etzioni and Viktor Mayer Schonberg agree that individual privacy and constitutional rights must be balanced against societal interests, while differing on the weight of each and on the policies that the balance implies.

In part three, entitled “The Coming Storm,” Garland Allen and Troy Duster deal with the dangers of using genetic databases for behavioral research [*361] because of the inherent bias in focus of the databases, directions of research and use of the results. In the concluding section, Sheila Jasanoff warns that the scientific advice of technical advisory commissions and reports is inextricably fused with the politics of the criminal legal system and that the best course is to acknowledge the politics fully and try to make decision making on the issues surrounding the use of DNA profiles as openly democratic as possible. Finally, David Lazer and Michelle Meyer summarize and clarify the areas of consensus and disagreement among the book’s authors.

This collection of essays gives an excellent overview of the state of the legal and ethical issues concerning DNA profiling and criminal databases as of 2004. The level of the material makes it suitable for the knowledgeable layperson and upper level undergraduate or graduate courses. What is missing is the analysis of the political juggernaut that will inevitably extend the databases to arrestees and possibly further without much concern either for privacy or the elimination of the inequities already present in the criminal legal system. At present, the only thing that seems to be slowing this expansion in most states is the backlog in sample retrieval and analysis and the cost of extending DNA sample collection to new classes of people. Unfortunately, this makes already existing collections of fluids and tissue (such as Newborn Screening Guthrie cards and military DNA banks) even more attractive for adding to forensic databases.



© Copyright 2005 by the author, Lawrence E. Rothstein.

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THE SUPREME COURT: A CONCISE HISTORY

by Robert W. Langran. New York: Peter Lang, 2004. 149pp. Cloth. €56.00 / £40.00 / $55.95. ISBN: 0-8204-7109-7. Paper. €23.00 / £17.00 / $22.95. ISBN: 0-8204-6162-8

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff@desu.edu .

pp.420-424

Political Scientist Robert W. Langran has written his second book on the U.S. Supreme Court. In the present offering, he endeavors to “remedy the lack of knowledge and understanding” (Introduction, xi) about the Court by covering its history through a chronological approach. Accordingly, each chapter begins with the justices who served during a particular period in American history, then sequentially examines the most significant cases decided during that era, and ends with a short summary of the span. Three issues are deemed as important to address throughout the book, including the ideology of justices, the level of activism of the Court, and the debate over the Court’s status as a legal or political institution.

Chapter 1 reviews the Supreme Court’s origin and evolution, together with its contemporary structure and operation. Although most of the historical points mentioned are familiar, Langran reveals that “The Court did not even have its own building until 1935” (p.4), most likely a consequence of its perceived status as the least influential branch of American national government. The president’s approval rate in having nominated justices confirmed is about 80 percent. The back-to-back failures of nominees in the Richard Nixon and Ronald Reagan administrations are featured, as is the controversial Senate Judiciary Committee hearing which followed the nomination of Clarence Thomas by President George Bush.

Chapters 2 and 3 trace Supreme Court history up to the last year of the Civil War. Langran labels the period which began with the third Chief Justice, John Marshall, as the Marshall era (1801-1835). In the seminal MARBURY v. MADISON decision in 1803, the Court declared part of a federal law unconstitutional for the first time, thereby establishing the power of judicial review at the national level. Subsequently, a series of critical rulings on economic issues, such as contracts, commerce, and banks, were rendered during Marshall’s leadership. Langran confirms Marshall’s enormous impact on the Supreme Court by noting that “he and his colleagues found a body without power and prestige and left it as a force to be reckoned with by all” (p.20).

Marshall was succeeded as Chief Justice by Roger Taney in 1836. During the next twenty-eight years, the Taney Court adopted the doctrine of dual federalism, thus moderating the nationalist tint of the Marshall Court. However, on the issue of slavery the Taney Court took a states’ rights position, exhibited clearly in the infamous DRED SCOTT v. SANFORD ruling in 1857. That decision not only represented the second occasion where the Court had overruled a federal law, [*421] but also “acted as a catalyst for the Civil War” (p.26), according to the author.

Chapters 4 and 5 probe Supreme Court personnel and cases over the seven decades between 1864 and 1933. Following the Civil War, the Court dealt with controversies involving Reconstruction policy, economic issues, and the interpretation of the Fourteenth Amendment. Latter nineteenth century rulings possessed a conservative leaning both economically and politically. The Court’s decisions in the CIVIL RIGHTS CASES (1883) and PLESSY v. FERGUSON (1896) upheld states’ views of equal protection, thus perpetuating racial discrimination for another half-century.

During the first three decades of the twentieth century, the Court’s rulings displayed some tolerance for limited government regulation of business. Generally, however, justices continued a conservative orientation in the economic sphere. Similarly, due to the effect of World War I, the Court’s rulings on civil liberties were highly restrictive of individual rights. The exceptions were those instances where the Court incorporated two freedoms found in the Bill of Rights—the First Amendment freedom of speech, and the Fourth Amendment guarantee against unreasonable search and seizure—into the Fourteenth Amendment due process clause, thus expanding protection to encompass the state level.

Chapters 6 and 7 highlight the Supreme Court’s personalities and decisions over the twenty-year period from 1933 to 1953. The New Deal policies of President Franklin D. Roosevelt were initially designed to rescue the nation from the grip of the Great Depression. These policies introduced unprecedented government intervention and expansion of the public sector. During FDR’s first term, the Court’s rulings on New Deal controversies went decidedly against the White House. As a result of his frustration, FDR began his second term by seeking to add new judges to the federal court system based on the age of sitting judges. His plan called for a maximum of six additional Supreme Court justices. Though certainly legal, “most people saw it as court-packing and opposed it” (p.50). Still, justices began to uphold New Deal legislation soon thereafter.

As was the case with previous decisions issued during times of major foreign conflict involving the United States, the Supreme Court upheld restrictions on civil liberties during World War II. The two most noteworthy examples are the rulings in HIRABAYASHI v. U.S. (1943) and KOREMATSU v. U.S. (1944). In the former case, the Court unanimously upheld a curfew against those of Japanese, German, and Italian ancestry. In the latter, a majority supported a military order to relocate more than 120,000 persons of Japanese ancestry from four western states to detention camps. Though perceived as necessary at the time, the action was later discredited by an official apology by the federal government and payment of reparations to the families of those affected. During the Korean conflict in the early 1950’s the Court ruled against an order by President Harry Truman to seize steel mills within the United States to prevent work stoppages. The decision in YOUNGSTOWN SHEET AND TUBE v. SAWYER (1952) represented a rare rebuke of a president in wartime. [*422]

Chapters 8, 9, and 10 examine Supreme Court personnel and holdings during the half-century between 1953 and 2003, and they consider the roles of Chief Justices Earl Warren (1953-1969), Warren Burger (1969-1986), and William Rehnquist (1986-present), respectively.

Few would dispute the characterization of the Warren Court as the most activist and liberal in American history. Starting with BROWN v. BOARD OF EDUCATION (1954)—in which the Court unanimously overturned the separate but equal doctrine—the Warren Court tackled a plethora of issues, such as freedom of speech, press, religion, and assembly, as well as reapportionment, and rights of the accused. It is in the latter area where the Warren Court had its greatest impact, as evidenced by the MIRANDA v. ARIZONA ruling in 1966. Although subsequent decisions provided exceptions, the basic “MIRANDA rights” procedures which must be used by law enforcement officials when taking a person into custody are still largely in force.

At the outset, Chief Justice Warren Burger appeared to be following in the footsteps of his predecessor, despite having been selected for service by Republican President, Richard Nixon. Decisions upholding busing as a means of achieving racial integration in education (SWANN v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 1971), in prohibiting prior restraint of the Pentagon Papers—that outlined America’s involvement in the Vietnam War—(NEW YORK TIMES v. U.S., 1971), and in striking down a restrictive state law pertaining to abortion (ROE v. WADE, 1973), seemed to portend continuation of the Warren Court’s liberal bent. But later contradictory rulings on issues encompassing affirmative action, gender equity, and privacy make it difficult to classify the Burger Court ideologically.

In 1986, William Rehnquist became Chief Justice. Just as the Burger Court will always be identified with the U.S. v. NIXON ruling in 1974, so it is hard to imagine a more important holding than BUSH v. GORE, the December 2000 decision ordering a cessation of the recount in Florida following the disputed presidential election outcome. The Supreme Court under Rehnquist has certainly demonstrated a tendency to disagree, with a large number of 5-4 rulings. According to Langran, “[p]robably the best way to characterize this Court is to call it a moderate to conservative Court with a shifting middle, causing it to tender some decisions more moderate in tone than might have been expected” (p.114).

In the concluding chapter, Langran summarizes the ideological development of the Supreme Court and its justices and predicts future tendencies. These trends include maintenance of conservative rulings in cases dealing with rights of the accused and First Amendment issues, inconsistent decisions on equal protection matters, and a tilt toward states’ rights in federalism controversies. Langran observes that “[n]o matter what happens, the Court will generally be in step with the public mood, and it will continue in its role as the guardian of our liberties” (p.123).

A range of books have been published analyzing the dynamics of the Supreme [*423] Court from a process perspective, from the standpoint of justices, or by combining cases in a topical issue format. Few studies have utilized a sequential method for evaluating decisions; the ones available which have done so are usually accompanied by other material. Three texts are identified as having some similarity with the Langran work. In his 1966 study, Arthur North juxtaposes a discussion of the Court’s procedures with that of the development of the Bill of Rights. In his 1987 book, Supreme Court Chief Justice William Rehnquist devotes a significant section to reviewing the Court’s history from the perspective of individual justices and Court membership as a whole. Because he adopts both of these tactics, Sanford Levinson’s 2000 revision of Robert McCloskey’s book, THE AMERICAN SUPREME COURT, is closest to the Langran study, albeit more than 100 pages longer and containing a dateline of Supreme Court events and decisions not found in Langran.

The Langran book is well-structured for its intended market: undergraduate courses in political science generally, and American government in particular. The work contains helpful appendices depicting the federal court structure and identifying each Supreme Court Justice by time of service and by the nominating president. The concluding chapter’s forecast of the Court’s direction seems plausible. However, the book’s purposeful brevity is at once a benefit and bane. First, the author veers from the method of detailing the Court’s evolution by highlighting the justices who led it. Langran joins the vast majority of scholars who cite the “superstar” chief justices while ignoring the less well-known ones. Second, the tactic of covering the Court’s development from a chronological case approach produces instances of laundry list-type passages without an evaluation of case impact one the one hand, and subject categorization of cases without subsequent delineation of how certain decisions were reversed or revised on the other.

Still, Langran achieves his objective of revealing some of the roles of law and politics in the U.S. Supreme Court throughout its existence.

REFERENCES:

McCloskey, Robert G. and Sanford Levinson. 2000. THE AMERICAN SUPREME COURT. Chicago: University of Chicago Press.

North, Arthur A. 1966. THE SUPREME COURT: JUDICIAL PROCESS AND JUDICIAL POLITICS. NY: Meredith.

Rehnquist, William H. 1987. THE SUPREME COURT: HOW IT WAS, HOW IT IS. New York: William Morrow and Company.

CASE REFERENCES:

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

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

CIVIL RIGHTS CASES, 109 U.S. 3 (1883).

HIRABAYASHI v. U.S., 320 U.S. 81 (1943).

KOREMATSU v. U.S., 323 U.S. 214 (1944). [*424]

MARBURY v. MADISON, 1 Cranch 137 (1803).

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

NEW YORK TIMES v. U.S., 403 U.S. 713 (1971).

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

ROE v. WADE, 410 U.S. 113 (1973).

SCOTT v. SANFORD, 19 How. 393 (1857).

SWANN v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1 (1971).

U.S. v. NIXON, 418 U.S. 683 (1974).

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



© Copyright 2005 by the author, Samuel B. Hoff.

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CORPORATE GOVERNANCE: LAW, THEORY AND POLICY

by Thomas W. Joo (ed). Durham, NC: Carolina Academic Press, 2004. 520pp. Paper $50.00. ISBN: 0890895708.

Reviewed by Kenneth Holland, Department of Political Science, Kansas State University. Email: kholland@ksu.edu .

pp.444-448

The focus of this edited volume is the law of corporate governance, including state and federal legislation and its judicial interpretation. Rules promulgated by the federal Securities and Exchange Commission also fall within the volume’s scope. The editor is a law professor at the University of California, Davis. The book’s primary audience is law students and is designed to be used as a collection of supplementary readings in a course on corporate governance. The book consists of eleven chapters, each containing between three and six abridged law review articles. The volume is of interest to political scientists, however, because many of the readings, which appeared originally in law reviews, address the policy issues surrounding government involvement in how corporations are governed. The topic is timely because of the scandals, involving major corporations such as Enron and WorldCom, which led to passage by Congress of the Sarbanes-Oxley Act in 2002. As of 2005 criminal prosecutions and civil suits stemming from these scandals were in progress or pending. Most of the articles consist of standard legal analysis of judicial decisions, laws and regulations. Some, however, take the social science approach and rely heavily on empirical data and statistical analysis.

Until recently, the states have been the primary legislators for corporations. Corporate law traditionally is considered private law because it governs the relationship among the officers, the board of directors and the shareholders. Corporations exist because it is more efficient to organize production within a firm, where workers can specialize, than leaving it to autonomous individual producers. The four basic defining elements of a corporation are indefinite life, legal personhood, limited liability, and freely transferable shares. The basic dilemma presented by corporations is the inherent conflict of interest between the officers and shareholders due to the separation of ownership and control. The owners, or shareholders, are not the ones who manage the enterprise. Non-owner managers may be tempted to maximize their welfare at the expense of the corporation’s profits. Managers serve as agents of the owners, and when they put their self-aggrandizement first they impose “agency costs” on the shareholders. The betrayal of stockholders and employees by corporate officers is to be expected. The actions of Enron and WorldCom’s top executives that led to the loss of billions of dollars in shareholder equity and employee pension funds only differed in scale (not in kind) from previous examples of corporate wrongdoing. The explosion in the magnitude of executive compensation in recent years and the [*445] high turnover rate among CEOs only reinforce shareholder fear of managerial self-dealing.

A threshold question is whether law should play any role at all in regulating what is essentially a private relationship. Legal scholars tend to adopt either a “contractarian” or “public interest” approach to this question. Law professors who draw upon free market economic principles tend to see the corporation as a contract, a voluntary economic relationship between shareholders and management. Those who view the relationship among managers and shareholders as a contract see little need for government regulation other than the necessity of providing a judicial forum for civil suits alleging breach of contract. Building on common law, state legal codes find that officers owe a fiduciary duty to shareholders, a duty enforceable in civil court. In fact, state statutes are almost silent on the duties and liabilities of officers; they have much more to say about those of members of the board of directors, the independent oversight body that represents shareholders. Another school of legal scholars, impressed by the impact of large corporations on society, has little faith in market solutions and argues that government must force firms to behave in a manner that advances the public interest. Analysts who emphasize corporations’ obligations to society ask how corporate behavior affects multiple stakeholders, including customers, employees, creditors, the local community, and protectors of the environment.

The stock market crash of 1929 brought the federal government into the regulation of corporate governance for the first time. President Franklin Roosevelt believed that he had to restore public confidence in equities. His fear was that individual investors would shy away from stocks and, by doing so, reduce the pool of capital available to fuel economic growth in the private sector. Congress enacted the Securities Act in 1933, establishing the Securities and Exchange Commission (SEC). It requires registration with the SEC of securities offered for public sale, outlaws fraud in the sale of securities, and offers defrauded investors means of recovering their losses. The law is based on the assumption that issuers who are forced to disclose relevant information about a corporation will be less likely to commit fraud. The SEC can investigate and impose sanctions on violators. SEC enforcement is in addition to the rights of defrauded investors to sue wrongdoers in federal court. The Securities Exchange Act of 1934 regulates stock exchanges and requires corporate officers to report their trading in securities issued by their employer. The SEC can ask for court injunctions or request criminal prosecutions against offending exchanges or exchange members. The SEC’s reliance on disclosure as a prophylaxis against fraud stands in sharp contrast to the approach of the states, which regulate corporations through the incorporation laws. States have the power to revoke a corporate charter in cases of extreme malfeasance.

Roosevelt’s decision to place publicly traded corporations and stock exchanges under federal supervision begs the question whether it is wise public policy to encourage average citizens to entrust their savings to corporate managers. Should the law not steer members of the body politic toward placing their money [*446] in safe harbors such as bank savings accounts or treasury bonds? The temptation that managers have to maximize their welfare at the expense of shareholders makes stocks riskier than other forms of investment. Scholars who question the wisdom of middle-class investment in the stock market have much to say that is relevant to the current debate over President George W. Bush’s proposal to privatize social security, another FDR legacy. Both of Roosevelt’s program experiments have been wildly successful. Millions of Americans own shares of stock, primarily through their 401(k) retirement account investments in mutual funds. The value of these accounts varies according to the vagaries of the business cycle and global events. At the same time, millions of retired Americans rely on monthly checks issued by the Social Security Administration, which guarantees monthly benefits at a predetermined magnitude. Loss of investor confidence in the stock market due to corporate scandals and the aging of the population represent significant threats to these two pillars of the New Deal—protection of small investors and income security for the retired.

An established theme in political science is the phenomenon whereby an interest group gains control over the government agency established by Congress to regulate it. The contributors to Joo’s volume disagree over whether the stock exchanges have “captured” the SEC. Critics of the SEC point to its efforts to build investor trust in the exchanges by making the trading of stocks as transparent as possible. Others see the alliance between the agency and the exchanges as necessary to strengthen its influence over the issuance and trading of shares.

Major policy themes addressed by the contributors are the growth in federal regulation of corporations at the expense of the states and the federal criminalization of behavior by corporate officers that previously exposed them only to civil liability in state courts. One of the most interesting dimensions of the collection is the debate between those who take a contractual, as opposed to a public interest, approach to corporate governance. Libertarians, for example, point to the desire of corporate officers to maintain a good reputation as a deterrent to dishonest conduct. If they mismanage a firm, they may lose their jobs due to hostile takeovers or mergers. Another reason why government regulation is unnecessary, they argue, is because the board of directors acts as an internal control over errant managers. Enforcement is another major topic. The authors debate the relative merits of civil litigation brought by private parties, lawsuits filed by the SEC, criminal prosecution by the Department of Justice, and leaving sanctions to the market as means of protecting the public interest. Shareholders can always withdraw their investment from a dishonestly managed enterprise, conclude the advocates of a market approach.

As a result of the revelations of accounting and financial misconduct in the Enron and WorldCom scandals, Congress enacted the Accounting Reform and Investor Protection Act of 2002, or Sarbanes-Oxley Act. WorldCom lied about its earnings, and when the fabrications were exposed, the company went bankrupt, costing [*447] investors more than $200 billion. The legislation was based on the assumption underlying the Securities and Exchange Act that full disclosure will prevent fraud. It sought to ensure full disclosure of information in firms’ financial statements. Investors had relied on an accounting firm’s independent audit, which in fact overlooked adverse information. The law established an oversight board for accounting practices and augmented the SEC’s resources and expanded its supervisory responsibilities. The statute contains new threats of criminal prosecution against managers.

An interesting topic developed in the volume is of particular interest to political scientists who study judicial policymaking. Courts lead by exhortation as well as by fiat. Most of the major state court decisions involving corporate governance are issued by the Delaware Chancery Court, due to the large number of major corporations incorporated in Delaware. Attorneys for these corporations follow the Delaware court’s judgments carefully and communicate the judges’ holdings to their superiors, the corporate managers. The Delaware Chancery Court shapes the behavior of corporate officers through what are termed “corporate law sermons.” In the Twenty-First Century, federal securities law and enforcement by means of class action lawsuits filed in federal court by shareholders against managers, however, have supplanted state law as the most visible means of regulating corporations. The federalization of corporate governance law is perhaps best illustrated by the provision of the Sarbanes-Oxley law that bans corporate loans to directors and executive officers, a matter long dominated by state law. The shareholder class action, however, has produced its own social problem—a large increase in the number of frivolous lawsuits. Attorneys have a strong incentive to file these suits whenever a corporation’s share price drops significantly over a short period of time. The drop in price is prima facie evidence of wrongdoing, especially withholding of negative information from shareholders. Corporate defendants typically follow their insurance carrier’s advice and settle such suits out of court rather than face the uncertainty and cost of a trial. The lawyers for the plaintiffs receive substantial attorneys’ fees while the shareholders receive very little compensation. In the 1980s, the U. S. Supreme Court began to address this threat to corporate welfare through such measures as shortening the statute of limitations applicable to such claims and the imposition of other restraints. A hallmark of the Court associated with Chief Justice William Rehnquist is its restrictive approach to private securities claims. The greatest blow to class action corporate suits, however, was struck by the Ninth Circuit Court of Appeals in SILICON GRAPHICS (1999). In 1995 Congress also addressed the issue of frivolous class actions by enacting the Private Securities Litigation Reform Act (PSLRA). The Ninth Circuit interpreted the act in the way most likely to deter abusive suits by holding that the statute required plaintiffs to allege facts that would show that defendants were “deliberately reckless” in making representations to shareholders that gave rise to the charge of fraud. This case is an excellent example of judicial lawmaking by means of interpretation. [*448]

CASE REFERENCE:

IN RE SILICON GRAPHICS INC., 183 F. 3d 970 (9TH Cir. 1999).



© Copyright 2005 by the author, Kenneth Holland.

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HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT

by Simon Halliday and Patrick Schmidt (eds). Oxford: Hart, 2004. 292pp. Hardback. £30.00 / $60.00. ISBN: 1-84113-388-4

Reviewed by Christopher Waters, School of Law, University of Reading. Email: c.p.m.waters@reading.ac.uk

pp.403-405

The starting point of this book is that while human rights standards are often adopted by states through international instruments, these standards do not automatically protect individual rights domestically. The goal of this collection, edited by Simon Halliday and Patrick Schmidt, is to consider when and how international human rights standards can be internalized. To be clear, however, this is not the sort of internalization that is discussed in every undergraduate textbook of public international law (the monism versus dualism question of whether implementing legislation is needed to give effect to international obligations), but rather a socio-legal look at how formal adherence to human rights standards is or is not made effective on the ground. As such it is a welcome addition to the growing literature on the interplay between international and domestic human rights.

The book focuses on how the European Convention on Human Rights (ECHR) has been “brought home” in the United Kingdom and its western European neighbors (the use of UN human rights instruments is addressed superficially and no attention is paid to other regional rights regimes such as that of the Organization of American States). Indeed, the title of this book, HUMAN RIGHTS BROUGHT HOME, is a twist on the UK Labour Party’s announcement in the mid-1990s that it would “bring human rights home” by incorporating ECHR rights directly into domestic law (Labour Party 1996). A year after coming to power in 1997 the new Labour government fulfilled that pledge by passing the Human Rights Act (HRA) through Parliament. Among other things, the Act requires British courts to interpret legislation in line with the ECHR and allows them to declare legislation incompatible with ECHR rights. Several chapters of this book use empirical research to consider whether the first years of the HRA’s life brought about a sea change in the legal system, as was predicted prior to the Act’s coming into force in 2001. While admitting that it is still too early to gauge impact with accuracy, chapters on courts, local government and legal proceedings involving children conclude that some changes have taken place but that the effect has largely been muted. What is then required for what might be termed deep human rights implementation at the domestic level? Possibilities explored here include reliance on national human rights institutions (human rights commissions, ombudsmen), the adoption of successful litigation strategies by interest groups (a theme much more developed in the US than in the UK), and the elusive if important concept of human rights [*404] culture shifts among both legal actors and the public.

All ten chapters are strong, though I will single out two for their broad view of the interplay between international and national human rights law. In a chapter written by Denis Galligan and Deborah Sandler, and entitled simply “Implementing Human Rights,” the authors highlight the fact that international and domestic legal orders both occupy the field of human rights. There are, however, basic structural tensions between the international and national human rights regimes, since they each have different starting points, logic and even language. While the structural tension is not insurmountable, “an appreciation of the autopoetic character of the two orders, and of the consequential incompatibilities when brought together, is the first stage in understanding the implementation process” (p.28). The progressive development of rights owes much to the international legal order. It is on the international plane where key instruments – including the Universal Declaration of Human Rights – galvanized the post-war human rights movement. Classically speaking, however, international law is concerned with treaties and customs between states, not relations between states and individuals. How international legal norms are implemented domestically is generally not the concern of international law and, indeed, could not be given the vastly different arrangements – both within monist and dualist states – available for domestic reception. Although there are circumstances where the international community might intervene directly to enforce human rights norms (“humanitarian intervention” for example), indirect means such as encouragement (or shaming) are more common. To understand how international standards might be made to matter on the ground, we ultimately need to look to the domestic stage. Here, the extent of constitutionalism, the existence of strong but checked administrative bodies and the provision of remedies will determine whether rights are made to matter for ordinary citizens.

In Mikael Rask Madsen’s chapter, “France, the UK and the ‘Boomerang’ of the Internationalisation of Human Rights (1945-2000),” the interplay between the domestic and international spheres is further developed. Rather than only considering how international norms are implemented into the domestic sphere, Madsen looks at how the domestic legal system influences the international order as well. Considering the UK and French experiences, he notes that human rights had unintended consequences for those countries. From 1945 the two weakened powers projected themselves onto the world and European stages as the “true authors of the concept of human rights” (p.57). The Council of Europe was a forum in which to act free of cold war constraints and to showcase the ideals of the two states. The UK and France not only assumed that their national laws complied with the ECHR, they were confident that “the ECHR constituted merely a Europeanisation of their own particular national practices of civil rights and ‘libertés publiques’” (p.58). Following the post-war period of externalizing British and French thought, the “boomerang” effect began to take hold. Madsen suggests that, from around 1970, “the subsequent development of an increasingly [*405] autonomous European regime of human rights saw the UK and France become the two most regular customers before the Court and Commission in Strasbourg” (p.58). Madsen not only describes this phenomenon of ‘exteriorisation’ and then ‘homecoming’ but also explores the reasons for these changes. In doing so he canvasses broad political and social movements (decolonization and the welfare state), as well as strategies pursued by individuals, civil society and governments. Madsen’s ability to contrast the strategies – and even personalities – of jurists on the different sides of the Channel is a particularly appealing aspect of this chapter.

Empirical studies do exist to show that there is no automatic link between formal accession to a human rights treaty and the implementation of the treaty’s standards domestically (Hathaway 2002). Less obvious is when and how the international-domestic link can be made successfully. This book provides a fine regional case study of rights internalization.

REFERENCES:

Labour Party. 1996. BRINGING RIGHTS HOME: LABOUR’S PLANS TO INCORPORATE THE EUROPEAN CONVENTION ON HUMAN RIGHTS INTO UK LAW. London: Labour Party.

Hathaway, Oona A. 2002. “Do Human Rights Treaties Make a Difference?” 111 YALE LAW JOURNAL 1935-2042.



© Copyright 2005 by the author, Christopher Waters.

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THE POLICE POWER: PATRIARCHY AND THE FOUNDATIONS OF AMERICAN GOVERNMENT

by Markus Dirk Dubber. New York: Columbia University Press, 2005. 288pp. Cloth. $50.00. ISBN: 0-231-13206-9.

Reviewed by Jack E. Call, Department of Criminal Justice, Radford University. Email: jcall@radford.edu .

pp.439-443

This book, by Markus Dubber, delves at length into the historical foundations of THE POLICE POWER. The book’s purpose is to put the police power concept into historical perspective so that the reader can understand the effect it has had on contemporary American criminal law.

The book is divided into four parts: Part I – From Household Governance to Political Economy; Part II – American Police Power; Part III – Police, Law, Criminal Law; and Conclusion – Toward a Critical Analysis of Police and Punishment. Part I consists of an extensive look at various historical forms of what Dubber calls “households.” These households existed in both private and public forms. Private forms included the ancient Greek family, the Roman paterfamilias, the medieval German mund, and medieval religious orders (especially monasteries). In medieval times in England (and to some extent in colonial America), aspects of these private households began to acquire legal status. Micro households (the family, lord/villein, master/servant) became absorbed into the macro household of the king/subject.

The head of the household (the “householder”) enjoyed great discretion. His primary goal was to protect the interests of the household. The general approach taken to the role of the householder was that his precise powers could not be specified because the exact nature of the problem with which he would be confronted could not be anticipated. Consequently, the powers of the householder consisted of whatever was needed to solve the problems confronted by the household. This power came to be referred to as “police power.” The need for broad discretion in carrying out this power resulted in the general principle that if a challenged exercise of power was found to fall within the police power, the exercise of power was legal and proper.

Part I also explores the English variety of police power as expressed in Blackstone’s COMMENTARIES ON THE LAWS OF ENGLAND. Since Blackstone’s COMMENTARIES are generally accepted as the most authoritative source on early English law, Dubber finds it instructive to examine his approach to police power, or what Blackstone referred to as “police offenses.” There were nine such offenses—including three forms of vagrancy, “clandestine marriages” and bigamy, “nuisance offenses,” gambling, and violations of game laws. Perhaps the most significant point made in this discussion is that, although these offenses stand out because of their vagueness, from the perspective of the police power, this is their primary virtue. They are vague by design because the [*440] householder (now the state) cannot perform its functions without the broad discretion provided by these vague offenses.

As a law student, I can still recall reading for the first time the Supreme Court opinion in PAPACHRISTOU v. JACKSONVILLE (1972). I remember reading the Jacksonville ordinance against “[r]ogues and vagabonds . . . persons who use juggling or unlawful games or plays, common drunkards, common night walkers . . . lewd, wanton and lascivious persons . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children,” and wondering how anyone could have thought that it made sense to pass such an ordinance. While Dubber’s discussion of police power may not provide a convincing case for the existence of such statutes (something that was not his intent anyway), it does provide an historical explanation for their existence.

Part I also discusses some of the characteristics of the continental European approach to the police concept. After emergence of the police concept, a movement toward the development of criminal codes also took place. With this latter historical development came a need to differentiate between police offenses and crimes. The distinction was said to be based on the existence of police offenses as a mechanism for preventing harm, with crimes serving the different function of punishing those persons whose behavior needed remedying. Making the distinction is important because, as we have seen, determining that an exercise of authority is an exercise of the police power is tantamount to finding that the exercise of authority was lawful. Dubber asserts that exercises of the police power are nearly always upheld by the courts. The issue in these cases, he contends, is not whether the exercise of the police power is lawful but whether the power exercised is a police power.

On the other hand, criminal laws are subject to certain legal constraints. Unfortunately, no legal system has ever been very successful at spelling out in a meaningful way the difference between police offenses and crimes.

Part II examines American Police Power. It begins with a discussion of the basic tension posed by the police power in American society. The police power is paternalistic and anti-democratic. Its anti-democratic nature seems to make it inconsistent with a republican form of government grounded on the notion of self-government. And yet, the early American governments seemed to accept that the police power was a desirable, almost inevitable aspect of any government. The trick then was to control it.

One way to control it was through an educated citizenry. This appears to have been part of Jefferson’s interest in higher education. In an introduction to an education bill presented to the Virginia General Assembly by Governor [*441] Jefferson, he indicates that “experience hath shewn that . . . those entrusted with power have . . . perverted it into tyranny. . . [T]he most effectual means of preventing this would be, to illuminate . . . the minds of the people . . . that . . . they may . . . exert their natural powers to defeat its purposes” (p.92).

The courts were another logical source of control. However, in the 19th century, the courts were anything but a source of control on the exercise of police power. To the contrary, they were generally an instrument of its exercise. The courts facilitated use of the police power through two primary means: 1) their continued use of and support for the common law offense of nuisance, and 2) their creation of other common law misdemeanor police offenses.

Two aspects of these offenses are noteworthy. First, they included omissions, as well as commissions, within their purview. This led to the second noteworthy aspect of police offenses, their frequent inclusion of status as an offense. The reason for including omissions and statuses within the scope of police offenses is that the police power was designed to be preventive. The inclusion of statuses in particular seems curious to the 21st century American mind, but an understanding of this history again helps explain another statute that I found puzzling as a law student – the California statute challenged in ROBINSON v. CALIFORNIA (1962) that made it a crime to be addicted to narcotics (a statute the Court found unconstitutional).

The courts also expanded upon the rationale justifying the police power. In fact, it is in judicial opinions from state courts (not federal courts) in the 19th century that one finds the most thorough discussion of the need for police power. The justification, in short, is preservation of society itself. Police power extends to elimination of things (actions, animals, objects) that might pose a threat to the general welfare. The courts viewed this principle as so self-apparent that they never saw a need to explain the basis for it.

Part III deals with the contemporary effects of the historical development of the police power. The main harm caused by the historical treatment of the police power is the failure (largely by the courts) to deal explicitly with the justification for the power so that principled limits can be placed upon it. In fact, the courts’ refusal to deal with the justification for the police power has gone so far that it is now common for courts to decide cases dealing with the scope of that power without ever acknowledging that the case raises police power questions.

The Supreme Court’s recent decision in KANSAS v. HENDRICKS (1997) is cited as a prime example. In that case, the Court upheld the Kansas violent sexual predator law that permits the indefinite confinement for treatment of persons who have been convicted of a violent sex offense and who, because of mental abnormality, are likely to commit such an offense again. This appears to be a classic case of police power at work. The statute is not designed to punish a person who has committed a bad act but to remove a threat to society. Yet the Court upheld the statute against [*442] due process and double jeopardy arguments without ever mentioning the police power.

The contrast with criminal procedure is striking. The Supreme Court (and lower courts) has subjected issues relating to the procedure for determining a defendant’s guilt or innocence to agonizingly detailed treatment. However, the criminal law has been subjected to relatively little of what Dubber calls “principled scrutiny.”

Dubber attributes the Supreme Court’s reluctance to examine the permissible scope of the police power to the unhappy fate of its decision in LOCHNER v. NEW YORK (1905). The Court’s ruling that a New York statute prohibiting bakeries from working employees more than ten hours per day was unconstitutional was greatly criticized and was extremely unpopular. In concluding that the statute improperly interfered with bakery owners’ due process right to engage in contracts of their own choosing, the Court found that the statute violated the concept of substantive due process. The great public outcry against LOCHNER also attached to the concept of substantive due process.

This unpopularity of substantive due process reached its height in the 1930s—although Dubber spends surprisingly little time discussing the role of the New Deal Supreme Court cases. After that point in time, the Court was loathe to raise the issue of substantive due process. However, since the Court had also discussed the police power at length in these cases, the reluctance to raise the issue of substantive due process became a reluctance to discuss the police power as well.

Nevertheless, Dubber sees some hope for “principled scrutiny” of the police power in the future. Surprisingly, he finds this hope in some recent state cases. He focuses primarily on two decisions striking down sodomy statutes: COMMONWEALTH v. BONADIO (Pennsylvania Supreme Court) and POWELL v. STATE (Georgia Supreme Court). From these cases, he sees the possible emergence of a police power jurisprudence that would require that police power be exercised only to benefit the public as a whole. Where such a statute infringes upon individuals’ freedom to engage in moral behavior of their own choosing, the statute would be unconstitutional unless the behavior prohibited can be shown to harm others (thereby incorporating John Stuart Mill’s “harm principle”).

It is interesting that these two “promising” cases both involve the constitutionality of sodomy statutes. In the text of the book, Dubber makes no mention of the Supreme Court’s decision, LAWRENCE v. TEXAS (2003), striking down the Texas sodomy statute. Initially, I presumed the book went to press before LAWRENCE was decided. However, the index has two references to LAWRENCE in footnotes. Although Dubber rightly observes (in the footnotes) that the LAWRENCE opinion makes no reference to the police power, it seems odd that the decision merits no mention or discussion in the text of the book.

As the discussion above suggests, this book is useful for at least two reasons: 1) It places in historical perspective some [*443] aspects of 20th century criminal law that are difficult to understand otherwise; 2) It helps explain the relative inattention to limits on the criminal law (compared to criminal procedure). However, this is a difficult book. It is certainly not a book for undergraduate students, unless a professor has some sort of intellectual death wish. Most graduate students would probably find it pretty tough sledding as well. Because its focus is on a relatively narrow (albeit important) topic, it also is difficult to envision a typical course where it would fit in. Even if one could find an appropriate course, however, the book’s level of difficulty discourages its use.

CASE REFERENCES:

COMMONWEALTH v. BONADIO, 490 PA. 91 (1980).

KANSAS v. HENDRICKS, 521 U.S. 346 (1997).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

PAPACHRISTOU v. JACKSONVILLE, 405 U.S. 156 (1972).

POWELL v. STATE, 270 Ga. 327 (1998).

ROBINSON v. CALIFORNIA, 370 U.S. 660 (1962).



© Copyright 2005 by the author, Jack E. Call.

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GENDER INJUSTICE: AN INTERNATIONAL COMPARARIVE ANALYSIS OF EQUALITY IN EMPLOYMENT

by Anne-Marie Mooney Cotter. Aldershot, Hampshire, England: Ashgate Publishing, 2004. 306pp. Hardback. $114.95 / £60.00. ISBN: 9-780754-623779.

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

pp.395-398

In GENDER INJUSTICE, Anne-Marie Mooney Cotter has taken on a formidable task, to give a truly international survey and analysis of global gender issues related to employment. To my knowledge, no one else has undertaken such a comprehensive look at gender equity issues globally, and for attempting to do so, Cotter deserves a great deal of credit. The book is exceptionally well-organized and clearly written. Cotter is a practicing lawyer, and her commitments to careful legal analysis are clear throughout the text.

The two opening chapters are designed to give the reader a sense of some key background concepts and issues related to gender inequality and employment, and to introduce aspects of feminist theory. In the introductory chapter, Cotter carefully details multiple gender inequalities that exist globally with special attention to employment differentials. As one might expect, Cotter finds a mixed response globally to these inequalities. On the one hand, “women’s participation in remunerated work in the formal and non-formal labor market has increased,” and “women have become increasingly involved in micro, small and medium sized enterprises.” Still, while employment options for women have expanded, a persistent wage gap has remained (p.11). In fact, gender discrimination “across the board” exists in terms of education, hiring and compensation, promotion, mobility, and inadequate sharing of family responsibilities (p.11). In short, “there are vast differences in women’s and men’s access to and opportunities to exert power over economic structures in society” (p.10). Feminist theory in its multiple forms reveals that these disparities arise from historically constructed dichotomies that are still often conceived of as “natural.”

Chapter Three provides a meticulously developed discussion of international legal conventions in terms of their treatment of gender equity issues. Cotter considers of variety of international treaties, some very well known, such as the Universal Declaration of Human Rights, and the Charter of the United Nations, and the Beijing Declaration, and others less so, such as the Equal Remuneration Convention, and the Discrimination (Employment and Occupation) Convention. There are general statements of equality in the United Nations charter, as well as specific statements, such as Article 55, which commits the UN to promoting, “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion (p.44). The most comprehensive international [*396] convention regarding gender equality in employment is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Sometimes labeled the “International Bill of Rights for Women,” parties to it “are required to end all forms of discrimination against women and to ensure their equality with men in political and public life with regard to nationality, education, employment, health and economic and social benefits” (p.53). From Cotter’s discussion of these various treaties, conventions, and covenants, it becomes clear that there is widespread formal protection from gender discrimination at the international level. In some cases, such as with the U.S., international protections are more explicit and specific than national ones.

The remainder of the book is constituted by sets of case studies. These are regionally focused with specific attention to particular national contexts: Australia and New Zealand (Chapter 4), Africa and South Africa (Chapter 5), Canada, Mexico, and the United States (Chapter 6), The United Kingdom and Ireland (Chapter 8), and the European Union (Chapter 9). Cotter also has an extended discussion of the gender implications of the North American Free Trade Agreement (Chapter 7).

From Cotter’s consideration of national and regional approaches to these matters, it is possible to learn a great deal. Each chapter is organized along somewhat the same lines. Each starts with a demographic overview involving a comparison of men and women in terms of such attributes as proportion of the population, kinds of employment practiced, fertility rates, divorce rates, education levels attained, and so forth. These provide a good benchmark against which to consider the legislative discussions that follow. They also provide a basis for comparing across national and regional systems in terms of their legal approach to gender equity in employment. Although Cotter does not engage in a great deal of cross-national/cross-regional comparison, she provides some tools by which others could begin to do so.

While it is somewhat difficult for me to assess Cotter’s discussions of national and international systems, given that I am not an expert in international law, I can say, based upon my fairly extensive knowledge of the American legal system, that she does an exceptionally good job of concisely summarizing the legal and constitutional aspects of gender discrimination in the U.S. She provides good summaries of important constitutional law cases, and she provides an excellent discussion of the problems confronting those seeking redress from gender-based employment discrimination. These include the difficulties of showing “intent” to discriminate, that seem to be firmly ensconced in American civil rights law, and of the problems more generally of relying upon the Equal Protection Clause of the Fourteenth Amendment. While “heightened scrutiny” exists in U.S. constitutional law for gender discrimination, it is, as she notes, “important to understand that the intermediate level of scrutiny, used for gender discrimination cases, is a lower burden than the one used for fundamental rights or suspect classifications, which requires an overwhelming and compelling state interest to contravene a right” (p.165). [*397]

I found the chapter on the North American Free Trade Agreement to be especially interesting. For one thing, it is refreshing to read a Canadian view of the NAFTA Treaty. The chapter provides a concise history of trade relations between the U.S. and Canada. The main theme is that Canadians have, for a very long time, attempted to maintain a sense of national identity and control over social and economic life in the face of the significant economic and political pressures that are generated from the U.S. Cotter gives an exceptionally even-handed analysis of the impact on NAFTA, systematically laying out the arguments both for and against in very lawyerlike fashion. A certain sense of antipathy does seem to seep through at various points, however, especially towards the end of the chapter where she considers gender equity issues. NAFTA, at least in formal terms, provides important protections for labor, although equal protection related to gender does not seem to be formally protected. (In the case of NAFTA, formal protections offer little if anything in terms actual protections for workers.) For Cotter, the primary gender issue arises from structural responses to free trade. Many jobs that have left and will leave Canada in the “search for the bottom,” are service sector jobs, jobs which have been crucial for women’s entry into and demands for equity in the workforce. As she notes, “Women and the types of jobs they occupy are especially vulnerable to free trade. Over 60 per cent of women work in the sectors of manufacturing, textiles, clothing, food processing, electrical, and leather products. . . There has been a major job loss by sourcing services outside Canada” (p.199). In the chapter on NAFTA, as with other chapters, Cotter is excellent at uncovering relationships between economic structure and gender inequity.

The strength of this book lies in the presentation of factual data and discussion of the formal rules related to gender equity in employment in diverse international contexts. There is a richness of information from multiple sources that make the book an incredibly good reference for anyone seeking to investigate the international and national mechanisms by which gender equality has been infused into law. In one sense, this book might even be considered as a reference book, given its emphasis on the factual and the formal. My guess is that lawyers internationally with an interest in employment discrimination cases would find GENDER INEQUALITY to be an especially useful resource.

A corresponding weakness of the book, perhaps primarily from the perspective of political scientists, is its focus on law as a set of formal rules. There is not a great deal of discussion of the political forces behind the adoption and implementation of the legislation that Cotter so carefully tracks. An important subtext of the book (but a theme that remains a subtext) is that formal legal commitments to gender equality in employment have become ever more advanced, but the actual disparities that exist in terms of wages earned and positions held have not correspondingly diminished. In virtually all of the contexts discussed by Cotter there are important legal protections against gender discrimination in employment, yet in each place disparities have decreased modestly. I would argue that politics occurs in this gap between the [*398] legal rules and the actual social practices. This is where power often manifests itself, and where it encounters resistance.

In my view, it is unfair for a critic to ask an author to write a different book than the one actually written, and I appreciate that this particular volume is packed with much that is useful and important. Perhaps it could provide a basis for other scholars to engage in a more political-oriented analysis. The book certainly points the way towards the kinds of comparative analysis of gender inequality that are sorely needed.



© Copyright 2005 by the author, Thomas Shevory.

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SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES

by Michael Comiskey. Lawrence: University Press of Kansas, 2004. 256pp. Cloth. $40.00. ISBN: 0-7006-1346-3. Paper. $17.95. ISBN: 0-7006-1347-1.

Reviewed by Kevin J. McMahon, Department of Political Science, Trinity College.

pp.389-394

SEEKING JUSTICES arrives at the perfect time. With much speculation about the impending retirement of Chief Justice William Rehnquist, many in Washington are gearing up for the next confirmation of a Supreme Court nominee. After all, it has been over a decade since the Court welcomed a new member – Justice Stephen Breyer – to its bench. Moreover, with George W. Bush’s apparent high regard for jurists similar in outlook to Justices Antonin Scalia and Clarence Thomas, and Senate Democrats fighting against the threatened “nuclear option”—which would end their ability to filibuster judicial nominees—the confirmation of a High Court nominee may very well attract similar attention as the battles over Robert Bork in 1987 and Thomas in 1991.

Into this haze of speculation and anticipation steps Michael Comiskey with his keen analysis of “the judging of Supreme Court nominees.” In the main, Comiskey thinks the confirmation process works fine, and like a gatekeeper defending his domain, he seeks to strike down arguments that portray the process as a “mess.” And for the most part, Comiskey defends the process quite well. Comiskey develops this defense through an analysis of two schools of thought on the confirmation process—the legalist and the political. Adherents to the legalist model, with an eye toward the Bork and Thomas nominations, have criticized the confirmation process for its “obsessive scrutiny of nominees’ character, qualifications, and – especially – politicolegal views by hostile senators, the news media, and many interest groups.” This high level of activity has “heightened conflict over nominations, produced excessive publicity that distorted the legitimate purposes of the confirmation process (and was often obsessed with scandal and conflict), excessively politicized the process, and induced presidents to nominate undistinguished legal figures with short and uncontroversial paper trails who could win confirmation easily” (p.2). In contrast, members of the political school have “focused mainly on the Senate’s inability to get most nominees to reveal their beliefs on legal issues, so that senators could give or withhold informed consent to nominations, and emphasized the president’s ability to place nearly anyone of his choosing on the Court and thereby exert excessive influence over the development of constitutional law” (p.3). In defending current confirmation practices, Comiskey argues that a more open and visible process enhances the Court’s legitimacy by injecting this unelected body with a taste of democracy. For example, in discussing the increased role of the media in the process, he writes: “Americans should have a say over who becomes a Supreme Court justice and hands down decisions of profound importance in their lives. [*390] The public should participate in the constitutional dialogue. Input from the public enhances the legitimacy of judicial review and thereby, somewhat paradoxically, protects minority rights” (p.75).

At times, however, Comiskey’s eagerness to assert that the process is not “overpoliticized,” dominated by the president, or otherwise broken causes him to overreach. For example, in an effort to explain the rise in the level of conflict over nominees since the failed attempted elevation of Associate Justice Abe Fortas in 1968, he puts the blame squarely on the individuals involved, especially the appointing presidents. As he writes, “Presidents Johnson, Nixon, Reagan, and the first President Bush ignited every confirmation controversy of the last third of the twentieth century by nominating figures who were of questionable qualifications and/or ethics, or who held views that were known to be objectionable to a majority or a large minority of the Senate” (p.71). To Comiskey, the process never seems to be at fault.

This leads to a necessary analysis of the Bork and Thomas nominations, and again, Comiskey is ready to dismiss arguments advancing a “confirmation mess” thesis. In Bork’s case, the system worked. Liberal senators and interest groups did not “distort the thrust of Bork’s views,” but rather correctly portrayed his constitutional vision. For Comiskey, “Bork would have been more than just a very conservative justice. He would have been a revolutionary conservative willing to discard several decades—arguably two centuries—of precedent and doctrine whose reversal would anger and astonish most Americans today” (p.58). How does Comiskey reach this conclusion? He employs the bitter pronouncements from two of Bork’s post-confirmation books, THE TEMPTING OF AMERICA (1990) and SLOUCHING TOWARDS GOMORRAH (1996). Comiskey may be correct in his conclusions, but it seems a bit unfair to assume that these two books would have perfectly reflected the decisions of a hypothetical Justice Bork. After all, in his confirmation hearings, Bork did suggest that the role of a justice is different from that of a scholar and/or commentator, and in turn, pledged great respect for precedent if confirmed for a seat on the high bench. The close but successful Thomas confirmation is a knottier challenge for Comiskey’s argument, and he devotes an entire chapter to the details of the controversy. In the end, he concludes that this “lightly qualified, politically extreme, and temperamentally injudicious” (p.132) nominee won confirmation due to a mix of ideology, which attracted conservatives, and race, which undercut liberal dissent. To Comiskey, this result “is the final testament not to flaws in the confirmation process” (p.133), but to the weaknesses of the various individuals involved in the process. This is a telling conclusion. Comiskey seems to favor the current process precisely because it cautions against the appointment of radical conservatives bent on transforming constitutional law. And when presidents ignore this lesson, he seems pleased that the process has given them fits.

More problematic is Comiskey’s failure to put these competing schools in their proper political context. Here, Comiskey would have benefited [*391] considerably from a more historical analysis. (Indeed, the failed nomination of John J. Parker merits barely a mention). The adherents of both the legalist and political schools have specific goals in mind, and depending on the time periods, participants in the process will switch schools. In the period Comiskey to which devotes most of his attention (post-1967), the legalist school was dominated by conservatives who wanted the conservative nominees of Republican presidents confirmed. To ease confirmation, conservatives strategically emphasized a legalistic approach that allowed significant deference to a similarly-minded president. To Senate Democrats, seeking to defend “liberal” decisions of both the Warren and Burger Courts, it was best to “go political,” by exposing the various flaws of a nominee. Not surprisingly, Democrats were most successful in opposing conservative nominees when they commanded a Senate majority. From 1969 to 1987, four Supreme Court nominees of Republican presidents were either rejected by the Senate (Clement Haynesworth, Harold Carswell, and Bork) or forced to withdraw from consideration (Douglas Ginsburg). Each was deemed too conservative for the current Court and personally flawed in some way or another. Absent a politicalized process, it is likely that Democrats would have had a harder time rejecting these nominees.

Compare the result of these confirmation fights to the contested nomination of Hugo Black, a liberal southern senator who made his way to the Court via a closed confirmation process in 1937. In his brief discussion of the Black nomination, Comiskey points out that information about Black’s membership in the Ku Klux Klan was well rumored after FDR made his first selection for the Court. Not surprising those arguing for a more open confirmation were critics of the president, principally Senator Royal S. Copeland of New York. As noted historian William Leuchtenburg writes, Copland, an anti-New Deal Democrat, “opened the debate before crowded public galleries” by asserting “that his Alabama colleague’s first election to the Senate in 1926 had been supported by the Klan.” Copland, however, “made no headway with his charges, because they were regarded as blatantly political,” part of an attempt to “exploit the Klan issue to curry favor with ethnic voters” in his race for mayor of New York City (Leuchtenburg 1995, at 189). In turn, the Senate discounted the Klan stories when it favorably (63-16) voted on Black’s nomination five days after the president sent it down Pennsylvania Avenue and after only six hours of debate. Curiously, Comiskey uses the Black nomination as an example of an open process. As he writes, “if this episode did not constitute a confirmation mess, it is hard to imagine what would” (p.76). But the controversy surrounding Black’s membership in the KKK did not become a major news event until nearly a month after his confirmation. (And after Black addressed the issue in a nationally broadcast radio address, calls for his resignation subsided.) In short, advocates of a closed process carried the day on August 17, 1937, the day Black—considered “the most radical man in the Senate”— won confirmation (quoted in Alsop and Catledge 1938, at 301).

Today, the advocates of a less publicized process are also allies of the president, [*392] although his ideology is far from that of FDR’s. In other words, the legalist school, which is the target of most of Comiskey’s criticism, must be understood in its proper political and historical context. Comiskey casts such an analysis aside by asserting that those who criticize the current process as “overpoliticized” and gossip-ridden are off-base because “the public has always been exposed to gossip about nominees” (p.77). This allows him to dodge a very tough question given his argument that a less political confirmation process would “produce at least a partial delegitimation of the Supreme Court and its power of judicial review” (p.84)—namely, have some Supreme Courts in earlier times been less legitimate because the confirmation process was less open? This is an unfortunate escape because a discussion along these lines would have surely enhanced the quality of this still fine work.

Students of the Court will likely find Comiskey’s discussion of the quality of justices quite interesting. Countering arguments that the modern confirmation “tends to rule out prominent figures whose special qualities make for judicial greatness” (p.85), Comiskey defends the quality of the post-1967 appointments. With the support of his own survey, Comiskey finds “no evidence that the justices appointed since 1967 are any less capable on the whole than those appointed earlier in the twentieth century” (p.99). While he admits that the Rehnquist Court contains no “greats”—Scalia scores the highest with a 2.80 out of a possible 4.0 and the lowest of the twentieth century “greats” is Felix Frankfurter at 3.27— Comiskey thinks this result has more to do with “incomplete careers of sitting justices and the lack of historical perspective inherent in evaluating all recent justices” (p.101). While Comiskey may be correct in cautioning against drawing conclusions so soon, the value of such ratings is inevitably limited. Indeed, Mark Tushnet (2005) makes a compelling case for why Justice Thomas—who garners a lowly rating of 1.57—deserves more careful consideration than he has previously received from legal scholars.

Moreover, Comiskey might have given more consideration to the nature of appointments in modern confirmation times. On the current Court, only Justice O’Connor was ever elected to office, the Arizona state senate. None have served in the cabinet. This is a far cry from the days of FDR and Truman. Four of the thirteen men these presidents appointed to the Court were sitting or former U.S. senators (Black, Jimmy Byrnes, Harold Burton, and Sherman Minton). Three (Frank Murphy, Robert Jackson, and Tom Clark) were the U.S. Attorney General when appointed (one of whom—Murphy— was also a former governor of Michigan). Harlan Stone, elevated by FDR to Chief Justice, had been Attorney General when he was chosen for the Court by Calvin Coolidge. Two others (Stanley Reed and Fred Vinson) were elected to office earlier in their careers and held important posts (Solicitor General and Treasury Secretary, respectively) in the Roosevelt and Truman administrations (respectively) when named to the Court. And two (Frankfurter and William O. Douglas) were leading legal academics who had close ties to President Roosevelt. (Douglas was also the chair of the SEC.) In the modern confirmation process, such high profile appointments [*393] are highly unlikely. While President Clinton seriously considered appointing both Mario Cuomo and Bruce Babbitt, in the end he settled on two well respected jurists who were nevertheless unknown to most Americans (and in all probability most members of the U.S. Congress). Indeed, many of the most recent nominees are even unfamiliar to the appointing president before their names appear on a list of possibilities. (Notably, Richard Nixon mispronounced Rehnquist’s name, calling him “Renchburg” and “Renchquist” (quoted in Abraham 1999, at 268).) Comiskey might have analyzed this change in his discussion of the “quality” of the most recent appointments, especially when critiquing arguments that emphasize the absence of politically prominent nominees.

While many have speculated that the next few years may determine the shape of the Court for the generation to come, Comiskey does not think court watchers should fear or celebrate the forthcoming transition “because presidents will very likely achieve only mixed success at influencing the Court’s doctrines” (p.150). To Comiskey, presidents simply face too many obstacles, including “the limited numbers of appointments most presidents make” and a more critical “contemporary Senate.” With regard to the first, Comiskey writes that “even after eight years in office, a president has only a 43 percent chance of filling five or more seats” (p.151). True enough, but Supreme Court vacancies do not come with a schedule. More often than not, they come in clumps. For example, FDR, after suffering though his first term without a vacancy, nominated seven men to the Court (including Stone’s elevation) in a mere four years. Nixon made four appointments to the high bench in the first two and one-half years of his presidency. Given the current run without a Court vacancy, President Bush may well name three justices in his second term. If his choices replace Rehnquist, Stevens, and O’Connor—the most likely candidates to step down—and are true to a Scalia/Thomas style of decision making, he will have a profound impact on the next generation of constitutional law. Of course, the president will have to overcome Comiskey’s other obstacles, but with a Senate filled with 55 Republicans (few of whom are moderates) and led by a Vice President Cheney eager to “go nuclear,” the chances are much greater than Comiskey would have us believe.

Despites these qualms, Michael Comiskey has, in the end, given us a deeply informative discussion of the modern confirmation process. It is also easily accessible to undergraduate students, and should work well in a course on the judiciary, especially if the anticipated Court vacancies and confirmation clashes arrive soon.

REFERENCES:

Abraham, Henry J. 1999. JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO CLINTON. New York: Rowman & Littlefield.

Alsop, Joseph, and Turner Catledge. 1938. 168 DAYS. Garden City, NY: Doubleday, Doran & Co.

Bork, Robert H. 1990. THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW. New York: Simon and Schuster. [*394]

Bork, Robert H. 1996. SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE. New York: Regan Books.

Leuchtenburg, William E. 1995. THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT. New York: Oxford University Press.

Tushnet, Mark. 2005. A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW. New York: W.W. Norton.



© Copyright 2005 by the author, Kevin J. McMahon.

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THE DISABILITY PENDULUM: THE FIRST DECADE OF THE AMERICANS WITH DISABILITIES ACT

by Ruth Colker. New York: New York University Press, 2005. 280pp. Cloth $45.00. ISBN: 0814716458.

Reviewed by Peter Blanck, University Professor, Syracuse University; Charles M. & Marion Kierscht Professor of Law, University of Iowa. Email: peter-blanck@uiowa.edu.

pp.354-358

As we celebrate its fifteenth anniversary, it is a fitting task that Ruth Colker takes stock of the Americans with Disabilities Act (ADA), this nation’s premier law affecting the lives of millions of persons with disabilities. In the past fifteen years there has been a sea of change in disability policy, anchored by passage of the ADA in 1990. Yet, anniversary celebrations have been bittersweet for those of us who examine the law’s impact on the lives of Americans with disabilities (Blanck, Hill, Siegel, and Waterstone 2004; Blanck and Millender 2000).

Colker’s opening chapter celebrates the high hopes for the ADA’s transformation of our nation’s attitudes and physical environment. But also, she observes a judicial backlash to the ADA, arising from U.S. Supreme Court decisions that narrow the law’s breadth. Few advocates and scholars working in this area could have predicted the resistance with which many courts have approached the rights and antidiscrimination principles at the core of the ADA.

In tracing the passage of the ADA and related laws in Chapter 2, Colker identifies the complex forces influencing Americans with disabilities and their quest for civil rights. Colker observes that since the 1970s, national policies directed at the rights of people with disabilities replaced a longstanding medical conception of disability. The rights model that began to influence policy in the 1970s viewed people with disabilities as a minority group. During this time, people with disabilities challenged stereotypes about dependency in education, housing, health care, transportation and employment. The new “disability policy framework,” grounded in equal rights, inclusion, empowerment and economic independence, fostered passage of laws from accessibility in voting and air travel, to independence in education and housing, and culminated in the ADA (Silverstein 2000).

Is the ADA’s rights model a failure? In essence, the bulk of Colker’s book, from Chapters 3 to 6, is spent addressing this major question. Her view, and mine, is that, despite resistance, the ADA disability rights model is succeeding. Indeed, the rights model has become a model for the world. Its fundamental themes are uniting countries in the pursuit of policies to improve the lives of persons with disabilities (Blanck, et al. 2004).

In Chapter 3, Colker presents an empirical investigation of litigation and settlement outcomes in ADA employment Title I litigation. She concludes by stating that “it is very difficult to paint a precise picture of [*355] which factors are significant in predicting winning or losing ADA litigation” (p.95). Yet, this conclusion does not go far enough. Some studies show that since the ADA’s passage employment has risen substantially among those with work limitations or severe functional limitations and who report the ability and desire to work (e.g., Kruse and Schur 2003). Moreover, the benefits to companies employing qualified workers have been documented, showing large and small businesses look beyond minimal compliance with the ADA (Blanck, et al. 2004). Of course, as discussed in Chapter 4, challenges and backlash to the ADA’s employment provisions exist, so much so that disability advocates have proposed a bill that would restore the reach of the ADA. High on the list of topics included in the “ADA Restoration Act” is clarification of the definition of disability (National Council on Disability 2004).

In Chapter 5, Colker examines ADA Title II (non-discrimination in state and local governmental services) and its sweeping integration mandate. She describes the wave of challenges to Title II, with roots at the intersection of disability policy and constitutional law. Generally, the U.S. Supreme Court has concluded Congress has narrow constitutional authority to limit states’ Eleventh Amendment sovereign immunity from civil rights suits under laws like the ADA (Blanck, et al. 2004). Importantly, in TENNESSEE v. LANE (2004), an Eleventh Amendment case, the Court’s new federalism momentum paused, at least for a defined set of circumstances. In LANE, two persons with disabilities, a defendant in a traffic case and a court reporter, sued under Title II to vindicate their right of physical access to the courts. The LANE Court decided that Congress crafted Title II within its constitutional bounds in preventing states from discriminating against people with disabilities in their right of access to the courts. As Colker acknowledges, it is an open question whether future challenges will limit Title II’s integration mandate in areas such as education, transportation, and voting, should the Court view these areas as not implicating a fundamental constitutional right.

Chapter 6 discusses how ADA Title III (non-discrimination in the provision of public accommodations) provides that malls, professional offices, hotels, and so on, may not discriminate against people with disabilities. Increasingly, places of public accommodation are accessible to people with disabilities. In PGA v. MARTIN (2001) the Court found Casey Martin, a professional golfer with a circulatory disorder, was entitled to the individualized accommodation of riding a golf cart to allow him to play in tournaments. Yet, Colker’s careful empirical analysis of Title III litigation outcomes suggests more work remains, particularly in the enforcement and remediation of Title III rights. Another question with far-reaching implications is whether Title III requires the Internet to be technologically accessible to prevent a “Digital Divide;” for instance, whether websites must be designed to work with screen reader software used by persons with visual and reading difficulties, and other accessible technologies for persons with hearing impairments, dexterity, developmental or learning disabilities (Blanck, et al. 2004). [*356]

Colker’s final Chapter 7, “Dissing Congress,” questions the “confusing line of [ADA] decisions” (p.210) set out by the Rehnquist Court. From review of the definition of disability and accommodation, to the analysis of the role of Congress and the states, Colker concludes that the first decade of the implementation and enforcement of the ADA has been a disappointment. But she also “tells the story of a swinging pendulum” (p.xiv), one that has changed the world for people with disabilities and in which state disability laws now are on the rise.

THE DISABILITY PENDULUM is well worth the read. Ruth Colker is a premier disability scholar and researcher, and the book will be useful in graduate courses in law, disability studies, and political science. Colker’s description of the stories of the plaintiffs in the leading ADA cases (Chapter 4) is compelling. Too often researchers, courts, lawyers and students of the ADA forget it is these personal stories that define the disability rights movement. I close with two such stories about my engagement in disability rights litigation, whose themes regarding attitudes about disability are illustrated prominently by Colker’s swinging pendulum (Blanck 2004; Blanck forthcoming).

Mario Echazabal: Paternalism. I met Mario Echazabal in the halls of the U.S. Supreme Court during its 2002 term, waiting for oral argument in his case. I was counsel for the National Council on Disability in Mario’s case. Along with my colleagues, I had prepared an amicus brief in CHEVRON U.S.A, INC. v. ECHAZABAL (2002). The case involved Chevron’s decision not to hire Mario, a job applicant, because he had asymptomatic Hepatitis C. Chevron refused to hire Mario, not because he was unqualified for the position he sought in their refinery, but rather, because they believed its workplace might worsen his condition, an opinion disputed by Mario’s doctors. Working for an independent contractor, Mario previously performed the job functions in Chevron’s refinery successfully for twenty years. Mario personified the situation the ADA was intended to prevent: paternalism that results in exclusion and isolation.

The ADA includes a defense defined by Congress that an individual not pose a direct threat to the health or safety of other individuals in the workplace. Mario’s case stemmed from regulations issued by the Equal Employment Opportunity Commission (EEOC) after the ADA’s passage permitting employers to refuse to hire a person with a disability if the employer believed that individual poses a direct threat to his own health or safety. The Supreme Court found in favor of Chevron, 9-0, endorsing the EEOC’s interpretation of the defense to include a threat to one’s own health. The Court reached this conclusion even though the language of the ADA did not contain such a defense. After losing his job at Chevron, Mario earned little income. In early 2004, Mario passed away, and in September 2004, Mario’s widow settled his case with Chevron in confidential agreement.

Don Perkl: Disability Stigma. I met Don Perkl and his family in 1999 at the Madison Packaging & Assembly facility, a sheltered workshop, in Madison, Wisconsin. Don is a person in his early fifties with mental retardation. He does not speak. He and I talked using [*357] pictures and a communication board, a device that translates ideas into spoken words. We discussed his employment, job training and the things he enjoyed. The EEOC retained me to testify as an expert witness in a lawsuit that the government, Don, and local disability advocates brought against Chuck E. Cheese for employment discrimination under the ADA. Don had worked at Chuck E. Cheese as a janitor. His job performance was excellent and his co-workers enjoyed working with him.

One day, a regional manager visited the Madison restaurant. On seeing Don working at the restaurant, he took the local store supervisor aside and criticized her for hiring one of “those people.” After returning to the restaurant on another visit, the regional manager fired Don after the local supervisor had refused to do so. The supervisor and restaurant staff quit in protest, and eventually testified for Don. At trial, the defense argued that Don was not qualified for the job and the company did not discriminate against him. They defended their actions by claiming there was something threatening about Don, possibly to the children and patrons at the restaurant. I testified about the myths and stigma facing persons like Don in employment and other daily life activities. While there was nothing deficient about Don’s work performance, there was something very wrong about management’s culture and attitudes, at least in this case.

The trial lasted a few days. The jury found Chuck E. Cheese had unfairly discriminated against Don in violation of the ADA, awarding him some $70,000 in back pay and compensatory damages, as well as his legal fees. To make their point, the jury sent a message that discrimination against employees based on their disability would not be tolerated. They awarded Don $13 million dollars in punitive damages, at that time the largest monetary award from a jury in an ADA employment case brought by the EEOC.

Colker’s description of “The Face of Judicial Backlash” (Chapter 4), like my stories and those of so many others, remind us that the goals of disability rights continue to have as much to do with battling attitudinal barriers and prejudice faced by persons living with disabilities as they have to do with overcoming physical barriers in the world. THE DISABILITY PENDULUM helps us to appreciate that how we address these issues will shape the lives of the next generation of children with disabilities. Unlike any generation before, our children will not know a world without the ADA, with its vision for equality, economic independence, and self-determination. They will expect no less.

REFERENCES:

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213 (2000).

Blanck, Peter. 2004. “Justice for All?: Stories About Americans with Disabilities and Their Civil Rights.” 8 JOURNAL OF GENDER, RACE & JUSTICE 1–32.

Blanck, Peter. Forthcoming. “Americans with Disabilities and their Civil Rights: Past, Present, Future.” UNIVERSITY OF PITTSBURGH LAW REVIEW. [*358]

Blanck, Peter, Hill, Eve, Siegel, Charles D., and Waterstone, Michael. 2004. DISABILITY CIVIL RIGHTS LAW AND POLICY. St. Paul, MN: West Publishers.

Blanck, Peter and Millender, Michael. 2000. “Before Disability Civil Rights: Civil War Pensions and the Politics of Disability in America.” 52 ALABAMA LAW REVIEW 1–50.

Kruse, Doug and Schur, Lisa. 2003. “Employment of People with Disabilities Following the ADA.” 42 INDUSTRIAL RELATIONS 31–66.

National Council on Disability. 2004. RIGHTING THE ADA. Washington, DC: NCD. http://www.ncd.gov/newsroom/publications/2004/pdf/righting_ada.pdf , April 26, 2005.

Silverstein, Robert. 2000. “Emerging Disability Policy Framework: A Guidepost for Analyzing Public Policy.” 85 IOWA LAW REVIEW 1691–1806.

CASE REFERENCES:

CHEVRON U.S.A, INC. v. ECHAZABAL, 536 U.S 73 (2002).

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

TENNESSEE v. LANE, 541 U.S. 509 (2004).



© Copyright 2005 by the author, Peter Blanck.

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GLOBAL JUSTICE REFORM: A COMPARATIVE METHODOLOGY

by Hiram E. Chodosh. New York: New York University Press, 2005. 240pp. Cloth. $45.00. ISBN: 0-8147-1935-0.

Reviewed by Roger Handberg, Department of Political Science, University of Central Florida. Email: handberg@mail.ucf.edu .

pp.386-388

GLOBAL JUSTICE REFORM is an interesting book by Hiram Chodosh that essentially consists of two distinct parts: an opening theoretical and methodological presentation of the comparative analysis (Chapters 1-3) followed by a second section (Chapters 4-6) of specific applications at the descriptive level of courts in Indonesia and India. The early part is heavy going but also interesting in that Chodosh’s critiques, of the efforts of others conducting comparative analysis of courts and law, force one to think about questions usually not considered that deeply. In addition, the bibliography and footnotes provide a ready introduction to significant parts of the international judicial reform literature. In the Introduction, Chodosh provides what he describes as a general road map to the problem as he defines it. His analysis in Chapter 2 focuses on the idea that the comparative method has not been well done with regards to courts and law, because most legal scholars have not thought through the concepts underlying comparative analysis but rather conduct what he defines as a superficial level of assessment. For example, Chodosh characterizes comparative law as a field with little actual comparison; rather the focus is usually on the foreign law itself with all its implicit strangeness, especially relative to whatever national law with which the researcher is personally most familiar.

By Chapter 3, Chodosh enters into the process of “comparing comparisons,” and his efforts concentrate on evaluating such analyses from three perspectives—purpose, context and mode of differentiation. Among the important purposes identified is the ability to better view one’s own society, law and culture in the light of others. This purpose represents a traditional value put forth as justification for conducting comparative analyses of other legal systems, but one in which the actual comparisons are often implicit rather than explicit since that vagueness eases the task of analysis. That explains why many analyses are essentially descriptive rather than theoretical. Otherwise, the analyses occur at such a level of abstraction that almost any comparison can be sustained. This latter situation is fortunately becoming less common as scholars become more immersed in the courts and law of other societies (including being conversant with the national language) and establish solid research linkages with native scholars in various states.Comparative politics as a field traditionally neglected courts as political irrelevancies, a pattern that is changing, bringing more comparatively trained scholars into the field. Ironically, a few international scholars are now conducting serious research into the wilds of American courts and law, a process of intellectual cross-fertilization that opens up new vistas in [*387] understanding American phenomena. Remember, Tocqueville added much to the American understanding of itself. By the end of Chapter 3, Chodosh has homed in on the process of judicial reform – a process to which he adds some cautions and suggestions for how to operate in the future.

Chapter 4 opens the more empirical portion of the book by providing examples of questions that need to be asked when court reforms are proposed. In this discussion, the author makes some non-obvious observations about the consequences of judicial reform, one thought being that as courts become more important, for example by actually enforcing the law, the efforts by others to corrupt and debilitate those courts will grow in intensity. As a consequence, reforms may fail due to this heightened visibility – creating fear among those benefiting from existing arrangements. His sketchy empirical examples are drawn from Indonesia and India – the latter is interesting because Chodosh presents a slightly different perspective on India’s legal challenges than typically is reported. This reflects differences in individual researcher agendas.

In Chapter 5, Chodosh pursues the problems inherent in comparative analysis of court reform. One of the most important issues is the value disconnect that often occurs between domestic and international political realities, including divergent political agendas. Much of the literature in comparative courts consists of evaluations (formally or otherwise) of various reforms sponsored and funded by international actors. In same cases, the international actor, including the World Bank and USAID, have provided substantial funding and subsequently seek validation of their efforts. Other evaluation efforts arose out of scholarly interest in the general questions inherent in the study of comparative courts and law. In both cases, the intent is to discover “successes” and then encourage other failing judicial systems to consider implementing such reforms. Since World War II, western states and international financial institutions have fostered at least three distinct waves of court reform. Many western scholars have researched such reform efforts, but their impact has often been less impressive than the academic hype about the reforms.

Chodosh’s agenda, in part, appears to be one of laying the foundation for conducting truly useful comparative analyses of judicial reform – finding specific reforms that, with suitable cultural modifications, might in fact be useful elsewhere. This is an admirable goal and one that has been attempted by others. What provides more support for his efforts is in fact the first half of the book: the methodological critique of the field. Researchers interested in assessing court reforms (whether in the US or elsewhere) need to be more forthright in considering the comparative process and how their research answers the questions raised by Chodosh in this book. Many scholars of earlier generations fled to judicial politics and law as a refuge from formal methodology, which they associated with numbers. The reality is that the field increasingly demands a more serious concern with the concepts underlying sound methodology. Chodosh’s volume represents a serious effort to strengthen the methodological foundations of comparative judicial politics. For that reason, it is a work that needs to be read by scholars and [*388] graduate students especially interested in the field. Methodology is not merely numbers, but rather involves conducting systemic and empirically grounded research. Comparative judicial types have nothing to lose but their methodological blinders.



© Copyright 2005 by the author, Roger Handberg.

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A REVISIONIST HISTORY OF TORT LAW: FROM HOLMESIAN REALISM TO NEOCLASSICAL RATIONALISM

by Alan Calnan. Durham, North Carolina: Carolina Academic Press, 2005. 340pp. Cloth. $45.00. ISBN: 0-89089-473-6.

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

pp.350-353

Alan Calnan’s bold new historiography of tort law takes issue with those legal historians who conceptualize early tort law as a simple cell organism that is both primitive and thoughtless. Calnan’s rich historical tapestry also challenges the conventional view that the law of torts reversed course from strict liability to one based on fault. Calnan locates the lodestar of tort law in the principle of the reasonable person, and his revisionist theory examines both the history and the jurisprudence of the formative era of tort law.

Legal historians will be impressed with the thoroughness of Calnan’s research. He relies extensively upon primary source documents from the Selden Society, founded by English legal historian Frederick Maitland and the single best source for primary materials on legal history. A perusal of the bibliography confirms that Calnan thoroughly explored the Selden Society’s Year Books, as well as a range of primary ancient and medieval sources. Calnan’s book is a treasure trove of legal records from a period where few tort scholars have studied.

Calnan develops the provocative thesis that Oliver Wendell Holmes, Jr.’s, oft-cited history of tort law is at odds with its underlying jurisprudence. In Holmes’ THE THEORY OF TORTS (1873), he divided the universe of civil wrongs into fault-based torts and those based on other criteria (p.16). Calnan points out that twenty-four years later in THE COMMON LAW (1897), Holmes changed his mind, deciding that torts revolved around fault. He observes that Holmes’ earlier work had no moral basis underlying tort law; whereas fault became the rule and strict liability the exception in the latter work. The problem with Holmes’ realist reassessment of tort law was that “in making up these rules, Holmes became a rule-breaker” (p.17).

Part I debunks the conventional paradigm of tort historiography. Here, Calnan castigates Holmes for excessive reliance upon legal sources without any attention to social or intellectual history. He concludes that Holmes’ history of torts is flawed because of methodological errors. Calnan contends that many legal historians do perfunctory or purposive histories rather than comprehensive ones, and they are doomed to failure because of inadequate methodologies. The first part of his book provides many compelling examples of how well-known scholars slavishly followed Holmes without critically unpacking his historical assumptions or his methodology. It is unclear from Calnan’s account how serious legal historians such as Pollock [*351] and Maitland (1895), Plucknett (1956), Baker and Milsom (1986) were led astray by Holmes’ historical account of early tort law.

Calnan amply supports his thesis that Holmes’ work as an historian of tort law needs to be reassessed. In Chapter One, he considers the uses of history. According to Calnan, legal history is not just about explaining the past, but also determining the future path of the law (p.37). Benjamin Cardozo warned all legal scholars “The law must be stable and yet it cannot stand still.” The job of the legal profession, lawyers, and judges was to adjust the need for continuity with the “alchemy of corrective change.” Professor Lambert wrote that the law of torts does not need judges who sit like the figures on Roman silver coins, ever looking backward. Calnan has a similar concern about Holmes’ historiography.

The Reporters of the Restatement (Third) of Torts pay homage to Holmes as if there was a wall of fire around Holmes’ unexamined legal history. Lambert quoted Alfred North Whitehead’s (1927, at p.88) admonition that societies which cannot combine reverence to their codes with freedom of revision “must ultimately decay either from anarchy, or from the slow atrophy of a life stifled by useless shadows.” Professor Calnan attempts to save the early history of tort law by debunking the conventional view.

Alan Calnan has a keen awareness of the uses as well as the misuses of history. He views history’s lessons as not only explaining the present and the past but also having a practical use of allowing one to avoid repeating the mistakes of the past. Santayana’s quote that those who “cannot remember the past are condemned to repeat it” applies to bad legal historical accounts. The conventional history of tort law was that at early common law in pre-Norman England, the civil liability system was predicated upon the bedrock of “absolute liability.” Calnan questions this oft-repeated tort aphorism tracing the path of tort law to the fault principle with pockets of absolute liability.

Professor Calnan uses the method of imaginative reconstructive to tell the story of the writ system. Legal history is marked by benign neglect of imaginative reconstruction because of historians’ heavy reliance on recorded laws and legal decisions. The law did not descend from above like the Ten Commandments. Legal historians must consider not only culture but practical and political ideologies but also the jurisprudential predispositions of judges and other legal decision makers. Calnan provides many examples of the poverty of tort legal historiography in Chapter Three. Tort legal historians suffer from tunnel vision (p.76) and their collective noses are stuck in law books (p.73). Calnan sensibly shows that it is all but impossible to reconstruct imaginatively from Anglo-Saxon sources (p.81)

His description of the writ system in action was primarily a system for regulating competing jurisdictions—manorial, county, and county court. The Royal writ system favored the wealthy because justice could be purchased for fixed prices. Historians Frederick Pollock and Frederic Maitland describe how the Royal writ system of Henry III was fee-based. Creditors, for example, agreed to pay the king a quarter or a third of the debts that they [*352] hoped to recover, creating an economic incentive to support the interests of creditors over debtors. Calnan notes that by Henry II’s reign, writs were in ascendancy with some thirty standardized writs in use (p.102). It was during Henry II’s reign that the common law took root (p.87). Chapter Five, on early medieval sources of tort law, is a model of excellence though Calnan acknowledges that he has produced only an incomplete case that the formative era of tort law was fault-based. Chapter Six is a rich recreation of tort law in the Twelfth-Century Renaissance.

Calnan dubs the twelfth century as the “ground zero” of the modern English legal system. By the thirteenth century, Aquinas built upon and expanded the ancient concept of natural law. It was Aquinas, more than any other figure, who transformed English law. The entire medieval system was based upon preordained assumptions stemming from Adam’s original sin. Next he examines the transition from trespass to case in the late medieval period. Tort does not take a more definite form until the concept of social duties was perfected. Calnan brilliantly shows that it was the patchwork of social duties created in the Middle Ages that explains the rise of negligence. Negligence is based upon reasonableness, and reason provided doctrinalists with a tool that was at once flexible and stable (p.241).

The last chapters synthesize and explain the general standard of fairness. Calnan concludes that tort history is a contradiction in terms. Holmes’ juristoriography is legal fiction, not history (p.277). Calnan provides clear and convincing evidence that tort law did not evolve out of the Dark Ages, but that it did not begin to appear until the twelfth century. According to Calnan, there is a solid core, with actions radiating outward like rings of a tree. The first legally protectible interest was the right to human dignity, followed by the right to social welfare, and finally the right to expect reasonable treatment from others. Legal sanctions were first repressive, punishing reprehensible acts and later, acts of carelessness (negligence).

Calnan’s book achieves his promise of providing an alternative model to Holmes’ historiography. This book is highly recommended for all tort scholars, legal philosophers, and legal historians. It will be too difficult for the typical undergraduate audience but may be of value to graduate students in the sociology of law or law and policy.

I hope that Professor Calnan will consider writing a second volume reexamining the role of Blackstone in the formative era of tort law. When Sir William Blackstone wrote his COMMENTARIES ON THE LAWS OF ENGLAND (1765-68), his formulation of “private wrongs” was designed as a legal system that provided compensation primarily for intentional torts. At that time, tort law was largely a legal institution to adjudicate conflict between neighbors and landowners, and to mediate relations between employers and employees. Volume Three of Blackstone’s COMMENTARIES synthesized private wrongs before legal subjects were classified into “private and public spheres, and private law was further divided into the recognizable divisions of tort, contract, and property.” Blackstone’s Volume Three provides considerable insights into how torts were [*353] prefigured prior to the fault-based negligence paradigm. Blackstone’s COMMENTARIES, like Holmes’ COMMON LAW, requires a critical re-examination or imaginative reconstruction.

REFERENCES:

Baker, John H., and S.F.C. Milsom. 1986. THE SOURCES OF ENGLISH PRIVATE LAW TO 1750. Oxford: Oxford University Press.

Benjamin Cardozo. 1924. THE GROWTH OF THE LAW. New Haven: Yale University Press.

Plucknett, Theodore F.T. 1956. A CONCISE HISTORY OF THE COMMON LAW (5th ed). Boston: Little, Brown.

Pollock, Sir Frederick, Maitland, Frederic William. 1895. THE HISTORY OF ENGLISH LAW, BEFORE THE TIME OF EDWARD I (2 vols). Cambridge: Cambridge University Press.

Whitehead, Alfred North. 1927. SYMBOLISM. Cambridge: Cambridge University Press.



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

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BEYOND FREE AND FAIR: MONITORING ELECTIONS AND BUILDING DEMOCRACY

by Eric C. Bjornlund. Washington, DC: Woodrow Wilson Center Press, and Baltimore, MD: The Johns Hopkins University Press, 2004. 408pp. Cloth. $55.00. ISBN: 0-8018-8048-3. Paper. $22.95. ISBN: 0-8018-8050-5.

Reviewed by Thomas G. Walker, Department of Political Science, Emory University. Email: polstw@emory.edu .

pp.379-381

Eric C. Bjornlund has produced a work that examines the development and growth of election monitoring systems around the globe. After previously serving as an associate director of the National Democratic Institute for International Affairs, Bjornlund founded Democracy International, an organization that evaluates and designs democracy-building efforts worldwide. Trained as a lawyer, the author relies on his own election monitoring experiences in more than twenty-five nations and on a database of information covering 94 countries.

Bjornlund’s volume, BEYOND FREE AND FAIR, focuses on the “third wave” of democratic transitions that began in the 1970s in southern Europe and continues to the present time. During this period many nations embraced democratic political institutions or, at a minimum, converted to semi-authoritarian regimes. One of the hallmarks of these transitions has been the adoption of periodic elections, giving the people a greater say over how they are governed. These electoral systems vary greatly with respect to how closely they approximate the desired standard of being “free and fair.” A central purpose of the book is to examine the role of election monitoring in building and maintaining democratic institutions in these transition states.

Allowing observers to monitor the electoral process has become nearly routine. Between 1989 and 2002, international observers were present in 86 per cent of the national elections in 95 newly democratic or semi-authoritarian countries. The practice has become a regular part of the political process in Latin America, Eastern Europe, the former Soviet Union, and Africa. The activities of the monitors have become increasingly important as a way to legitimate a government, promote human rights, and encourage political participation. Today governments seeking international legitimacy are expected to invite neutral observers to monitor their elections.

Bjornlund discusses two forms of election monitoring: international and domestic. International election monitoring involves groups outside the host nation. Commonly these are multi-national organizations with a significant history of observing and evaluating elections. International monitoring emerged from the early peacekeeping efforts of the United Nations in the days following the Korean War. Other groups, such as the Organization for Security and Cooperation in Europe, the Council of Europe, the Organization of American States, and the International Institute for Democracy and Electoral Assistance, have since initiated efforts to [*380] conduct or support election-monitoring programs. The most prominent of the international efforts has been that spearheaded by former president Jimmy Carter, who is characterized by Bjornlund as “the reigning celebrity of international election observation.” In order to highlight the strengths and weaknesses of international monitoring, Bjornlund provides case studies of elections in Cambodia and Zimbabwe.

Domestic monitoring involves election observation by nonpartisan groups originating within the host state. The first effective use of such efforts occurred in the Philippines in the 1980s when the National Citizens’ Movement for Free Elections, with support from the Catholic Church, monitored the events surrounding the 1986 campaign in which Corazon Aquino challenged Ferdinand Marcos. The generally successful efforts of domestic monitoring in the Philippines led to similar groups forming first in several Latin American nations and then in Europe, Africa, and Asia.

Domestic organizations have certain advantages over international efforts. Unlike multi-national organizations that enter a country for a relatively brief period surrounding an election, domestic groups are a continuing presence within the society. This allows local groups to have a more enduring influence on the building of democratic practices. In addition, domestic organizations tend to have greater expertise about the political forces relevant to the election. International groups, however, usually enjoy better funding, greater visibility, and superior prestige.

Bjornlund is a strong supporter of election monitoring. He sees the monitoring process as contributing significantly to the democratic cause throughout the world. It deters fraud and corruption, improves public confidence and civic education, energizes citizen involvement, and strengthens nongovernmental organizations. Critical reports from monitoring organizations can seriously weaken a government’s legitimacy at home and damage the respect it receives in the international community.

In spite of his advocacy, Bjornlund is balanced in his approach, readily admitting the limitations and weaknesses of election monitoring. Monitoring organizations can have conflicting interests and goals. Incumbent political powers may intimidate election observers. Observers can fall to the temptation of favoring a particular candidate or party, and thereby be perceived as excessively partisan. Monitoring efforts that focus on what happens on election day may miss corrupting practices that occur before or after the casting of ballots. These limitations warn us that too much can be expected of the election monitoring process.

Bjornlund offers several suggestions for improving the effectiveness of election monitoring. First, democracy-building organizations must seriously consider whether they should participate in elections held in nations with flawed systems or practices. By participating in such elections organizations run the risk of unintentionally conferring legitimacy on an election that fails to approximate the standards of being free and fair. Second, to maintain credibility and independence participating organizations must challenge brazen manipulation of [*381] the monitoring process. Third, organizations should take pains to avoid duplication of efforts and the adverse effects of inter-group competition. Fourth, monitoring groups should strive to develop more effective and consistent observation practices. Fifth, there is a need to enhance the professionalism of election observers. Sixth, monitoring groups should accelerate efforts to shore up international consensus on universal democratic principles and the importance of democracy promotion. Bjornlund cites the efforts of Jimmy Carter as exemplary in promoting these goals and using the best available practices in his own monitoring activities.

For many regular readers of Law & Politics Book Review, BEYOND FREE AND FAIR will be of only passing interest. The book offers no jurisprudential insights, says little about law or courts, builds no theories of judicial behavior, and makes no effort to generalize beyond the specific topic at hand. Of course, it was not the author’s intention to pursue such goals.

Instead, Bjornlund strives to examine an increasingly important international practice as comprehensively as possible. He is not guided so much by theory or the desire to fill gaps in existing literature as he is motivated to share his knowledge about a subject that has dominated his professional career. He accomplishes this goal in excellent fashion, combining personal insights with an abundance of empirical information about efforts to improve democracy by observing and evaluating election practices. The treatment is thorough and richly documented, covering the organizations that are active in election observation as well as the nations that have hosted election monitors. The book contains the right mix of facts and statistics supported by interesting case studies. The author avoids obvious partisanship. His approach is balanced, offsetting a general advocacy of monitoring with a pragmatic awareness of the inevitable weaknesses and pitfalls. Bjornlund offers both objective information and prescriptions for reform.

BEYOND FREE AND FAIR might be considered a niche book. If so, it fills its niche exceptionally well. It takes a subject that has received insufficient scholarly attention and treats it in a comprehensive manner. The volume might not speak broadly to other subjects and literatures, but those interested in election monitoring will find it indispensable.



© Copyright 2005 by the author, Thomas G. Walker.

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TRANSFORMATIVE JUSTICE: ISRAELI IDENTITY ON TRIAL

by Leora Bilsky. Ann Arbor: University of Michigan Press, 2004. 392pp. Cloth. $65.00. ISBN: 0-472-11422-0. Paper. $24.95. ISBN: 0-472-03037-X.

Reviewed by Allan E. Shapiro, Kibbutz Degania Alef, E-mail: shapiro@degania.org.il

pp.465-470

This is a very ambitious study of a category of political trials that encapsulate transformative moments in the life of a nation. Leora Bilsky, a professor of law at Tel-Aviv University, has built a solid reputation through her work in children’s law. Perhaps this is the reason that the process she tracks in putting together an account and analysis of four political trials in Israel seems to this reviewer somewhat parallel to the narrative of growing up, with an optimistic spin to it. Bilsky provides a measure of confirmation, concluding the pro forma introductory acknowledgments with a particularly moving declaration: “Giving birth to my child and to this book simultaneously symbolizes, maybe more than anything else, my belief in the future of this country and its people” (p.xiii).

The four political trials analyzed in this book involve collective traumas. Two deal with the Holocaust – the Kastner trial, a criminal libel suit for publication of allegedly false charges of collaboration with the Nazis in Hungary, in the shadow of the mass deportations to the gas chambers, and the Eichmann case, in which the SS commander in charge of the Final Solution of the extermination of European Jewry was tried in Jerusalem, found guilty, and executed. The third case dates from the outbreak of the Sinai war in 1956, when innocent Arab villagers of Kafer Kassem, returning home without knowledge of the imposition of a curfew, were killed by members of the Border Guard, purportedly acting pursuant to orders. The last case is the murder trial of Yigal Amir, who assassinated Prime Minister Yitzhak Rabin.

In telling the tales of these four political trials, narrative and rhetoric play an important part. Adding to the dramatic appeal, there is a dual focus. The adversary nature of the judicial process provides the structural support for two major accounts of history and the conflicting judgment each appears to warrant. Moreover, criminal trials have a high public profile, drawing far more attention than most civil proceedings, even those involving weighty constitutional issues that produce learned landmark judicial opinions. They, therefore, are likely to draw a higher degree of public attention and have much greater impact on public consciousness.

It is the impact on consciousness that provides the transformative element, rather than substantive change in the legal universe. It is transformative because it touches the heart of things. Core values of the society and its political system are on trial. The results may, in effect, provide legitimacy to the existing order. They may also suggest the limits of the legal system in effectuating fundamental change. [*466]

Bilsky’s TRANFORMATIVE JUSTICE claims, according to the sub-title, that it is Israeli identity that is on trial. Use of the term, “identity,” is somewhat ambiguous. The Kastner trial, revolving around charges that a Jewish community representative collaborated with the Nazis, involves a confrontation between conflicting images: the traditional Diaspora Jew who seeks an accommodation with a hostile environment and the “new Jew” rooted in the soil of the homeland, whose behavior, according to the Zionist narrative, exemplifies physical courage and self-sacrifice. The failure to resist appears as a fault of the victims, for which the leadership is guilty, running parallel to the failure of leadership of the young state in arousing international reaction to the horrors of the Holocaust and in challenging British control of mandatory Palestine. The issue is addressed in particularistic Jewish terms, with the concrete historical condition and the wider humanistic implications largely ignored.

The Eichmann trial, by way of contrast, presents the survivors as heroes who have withstood the suffering inflicted by the Gentiles. Deemphasized are divisive issues, such as Jewish collaboration, which Judge Halevi, who had sat on the bench in the Kastner case, as he did on the three-judge trial panel in the Eichmann trial, sought to raise, and which were so prominent in the Kastner trial. The Holocaust is placed firmly in the age-old tradition of Jewish victimization, and the defendant is guilty primarily of crimes against the Jewish people and only incidentally against humanity. Again the emphasis is particularistic, rather than humanistic, which Justice Simon Agranot’s opinion in the appeal to the Supreme Court somewhat redressed.

With the Kafer Kassim case, the book turns from the Holocaust (Jews versus Gentiles) to the Arab-Israel confrontation. The Kafer Kassim trial points to the exclusion of the Israeli Arabs from the national collectivity. Sitting as a judge in a military court, Judge Halevi determinedly rejected the defense that the border police who were on trial were obeying orders. Military personnel, he declared, were not only permitted, but even obligated, to refuse an order over which flew a “black flag” of immorality, a clear appeal to humanistic authority and a sense of decency. The testimony of the Arab villagers was given full credence, although their lack of status, other than as witnesses, left them without representation by counsel. Their language disabilities served to accentuate the point that they were a foreign element, a distinct “Other,” both in the courtroom and in Israeli society. The failure to impose appropriate punishment detracted from the value of the trial, whose importance should not be minimized. Not only did it recognize the Israeli Arabs as possessing basic rights, but it also clearly placed the defense forces under the rule of law and of morality. However, the result made little change in the definition of the Israeli collectivity.

Yigal Amir, Rabin’s murderer, places a claim to religious justification for his act – Rabin’s collaboration in the territorial concessions of the Oslo Accords, relinquishing part of the ancestral patrimony was, in the view of nationalist religious circles, in violation of religious law. A particularly extreme [*467] fundamentalist interpretation of religious law is then invoked by the murderer, a law student, as trumping the injunctions of secular law and conventional morality and justifying the murder. Amir’s position was supported by very few in the nationalist religious camp to which he belonged – itself a small minority in a country in which the largest single group, estimated at some 40% of the population, is decidedly secularist. Clearly aimed at promoting national unity, two of the three trial judges embraced the myth of Jewish non-violent settlement of disputes and pointed to the dire consequences in Jewish history for violating this tradition. The court also encouraged another myth: a purported unity of secular and religious Zionism, which had minimal historical basis. Again, both the problem and the solution are particularistic, without examination of the broader humanistic implications of political extremism from the political Right, against the background of modern totalitarianism.

Bilsky asks, in the opening sentence of the book, “Can Israel be both Jewish and democratic?” (p.1) and continues with the affirmation that, in the Rabin assassination, the two fundamental values of Israel, the ”Jewish” and the “democratic,” “seemed to be clashing in a violent life and death struggle” (p.1). She regards the redrawing of the territorial boundaries and the ethnic barriers of political participation by Israeli Arabs as raising “identity” issues that divided public opinion, made the old rules of the game inadequate, and required judicial intervention, beyond the normal limits, in the transformative situation thus created.

But was there a true crisis of identity? Bilsky’s reading of the historical record is open to question. For example, she suggests that the court appeared “to be avoiding the hardest challenge posed by the murder: what value should prevail when the ‘Jewish’ seems to contradict the ‘democratic’ and what is the hierarchy of secular law and Jewish law in the State of Israel” (p.202)? A more reasonable interpretation might be that the hierarchy of secular and Jewish law in the relevant subject area is well settled and required no additional judicial pronouncement. But, even more, no court in Israel would seriously consider the contention that the murder of the prime minister exemplified a “Jewish” value or that the murderer’s act had sacrificial value, as in the biblical tale of the aborted slaying of Isaac (Yitzhak).

If it is not precisely Israeli identity that is on trial, it is perhaps a stereotyped image, national or sectoral, as the case may be. The Israeli author, Amos Oz, published his collection of essays, ALL OUR HOPES, which appeared only in Hebrew, with a double title page. In the Hebrew page, the book has the subtitle (literally translated) “Thoughts on Israeli Identity.” In the English title page, the subtitle is “Essays on the Israeli condition.” At least in English, the distinction is critical.

Stereotyped images may also have literary sources, without particular relevance to Israeli (or Jewish) identity or condition. In the Kastner case, involving the issue of collaboration during the Holocaust, trial judge Benyamin Halevi concluded that Kastner, in his dealings with the Nazis, had sold his soul to the devil. Bilsky closely traces the literary allusion to the [*468] Faustian bargain in the court’s judgment (although the explicit charge – whose importance Halevi later belittled, after Kastner had been assassinated and after Halevi’s decision had been reversed on appeal - appears only in one sentence). Thus, the court repeatedly refers to Kastner as Dr. K, stressing his formal title of Doctor (although also referring to him simply as K., which suggests a different literary allusion that does have Jewish associations). In the Faustian tradition, he is somehow “infected” by his dealings with the Nazis, an infection combining pride and ambition to separate him from his own people. He is endowed with superior knowledge (the impending deportations to Auschwitz). He accepts Eichmann’s characterization of their bargain as a sort of alchemy, turning “worthless Jews” into a source of Nazi wealth (by the exchange of ten thousand trucks for a million Jews) and plays God in deciding who will live (by inclusion in a list prepared by Kastner) and who will die in the gas chambers, a decision in which Kastner’s self-interest is a factor.

Literary insights conventionally afford enhanced perspective, a deeper understanding. Bilsky suggests, however, that in this case the literary allusion served to constrict the court’s vision. The demonization of Kastner removed that particular chapter of the Holocaust from the domain of human history, permitting the court to ignore Kastner’s concrete situation and the constraints under which he operated. Bilsky points to Halevi’s personal history as a German Jew, confronting the double betrayal of Jewish leadership and German culture. The stereotyped story of the deal between the Nazi devil and the morally corrupt Kastner excluded other perspectives that a deeper examination of the Faustian tradition might have afforded (such as the cultural origins of Naziism) and provided the structural basis for a formalistic contract law analysis of the satanic bargain, endowing Kastner with an equality of status and a freedom of will, necessary for a meeting of the minds, which the concrete reality clearly negated.

A more successful exploitation of literary narrative is in the concluding chapter, in which Bilsky suggests that Israel’s transformative trials and South Africa’s truth commission belong to a common genre—the exploitation of the legal forum for the achievement of catharsis and reconciliation. The truth commission is associated with regime change, transformative trials with less conclusive collective traumas, but Bilsky suggests that there is much in common with regard to their political functions. A lengthy analysis (based primarily on the motion picture directed by Roman Polanski) of Ariel Dorfman’s play, DEATH AND THE MAIDEN is offered as evidence. (Surely there is relevance in the play’s success in Israel, a fact not mentioned by the author.) It tells the story of a South American couple, in which the husband has been appointed to chair the country’s truth commission. What is to be done with his wife’s former torturer and rapist under the previous regime, whom she meets by chance and brings home as prisoner? What is to be the role of due process of law and the function of punishment?

Bilsky’s discussion of the truth commission in countries that have undergone regime change brings additional light and broader perspective to the subject of transformative justice. [*469] However, she fails to mention what might be considered as an intermediate institution, the investigating commission, created by statute in Israel in 1968, primarily in reaction to a truly traumatic regime crisis, the so-called Lavon Affair. With the outbreak of the second intifada in 2000, severe breaches of public order by Israeli Arabs were met with a forceful reaction on the part of the police, resulting in a number of fatalities. The immediate consequence, in a situation that recalls Kefar Kassem, was the creation of an investigating commission chaired by a Supreme Court judge, whose report went beyond the immediate incident and dealt with basic issues of the status of Israel’s Arab minority.

Bilsky does not neglect the role of intellectual commentators, Israeli and foreign. Hannah Arendt (1994), in her reporting on the Eichmann trial, was critical of certain aspects of the due process issue, as well as of particularism with its forebodings with regard to Israel’s future political culture. Bilsky exploits an analysis of Arendt’s position, generally critical of the trial, to suggest an alternative view. In particular, she uses Arendt’s analytical tools to suggest acceptable procedural departures in the proceedings in the Eichmann situation which would permit the court to perform its function without offending basic notions of justice. The narrative of both the Kastner and the Eichmann trials, as it appears in Pnina Lahav’s (1997) monumental biography of Simon Agranat, is also an important background source. Lahav’s striking success suggests that, in using narrative in legal analysis, there is particular value in the narrative of judicial biography. This is largely absent, as Bilsky tells the story, which is a loss in examining the positions of Judge Benjamin Halevi, who played a major role in the Kastner, Eichmann, and Kefar Kassim cases.

An earlier generation of observers frequently postulated a sort of Israeli exceptionalism. The ordinary rules of cause and effect did not apply. Witness the hardiness of the “melting pot” metaphor in dealing with the subject of mass immigration, or the various myths woven around Jewish-Arab co-existence. A later period was marked by debunking, by the demolishing of myths on which Israeli exceptionalism rested. Exceptionalism is one aspect of particularism, which is the bete noir of many of the narratives in the political trials here analyzed. Leora Bilsky’s study takes the facts as they are and examines them on the basis of recognized criteria. She then uses her findings as a basis for proposing theoretical formulae of universal applicability. This search for the universal is based on the particular, but constitutes the antithesis of particularism.

REFERENCES:

Arendt, Hannah. 1994. EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (rev. ed.). New York: Penguin.

Dorfman, Ariel. 1996. DEATH AND THE MAIDEN. London: Nick Hern Books.

Lahav, Pnina. 1997. JUDGMENT IN JERUSALEM: CHIEF JUDGMENT SIMON AGRANAT AND THE ZIONIST CENTURY. Berkeley: University of California Press. [*470]

Oz, Amos. 1998. ALL OUR HOPES (Kol Ha-Tikvot , Hebrew only). Jerusalem: Keter.



© Copyright 2005 by the author, Allan E. Shapiro.

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JUVENILE JUSTICE REFORM AND RESTORATIVE JUSTICE: BUILDING THEORY AND POLICY FROM PRACTICE

by Gordon Bazemore and Mara Schiff. Portland, OR: Willan Publishing, 2004. 272pp. Cloth. £45.00 / $64.95. ISBN: 1-84392-095-6. Paperback. £25.00 / $37.50. ISBN 1-84392-094-8.

Reviewed by Lucy S. McGough, Paul M. Hebert Law Center, Louisiana State University. Email: lmcgoug@lsu.edu .

pp.376-378

“Restorative Justice” has been the buzz concept of the last decade in the American criminal and juvenile justice systems. Every avant garde program planner wanted a pilot program, and community convocations were called to discuss the fabulous new concept that would revolutionize the way we handle offenders and victims. I went to two such meetings and came away frustrated. I found the answers to my question, “What is ‘restorative justice’?” to be vague, aspirational and short on explanations of why, how, and most importantly, if the process is effective. Most experts could articulate the aspiration of returning to a world of citizen responsibility in which criminal prosecutions are brought by private victims or their families, rather than the state, and in which recompense for the crime rather than punishment is the more important sanction. But in many presentations, that idea was disconnected from any strategic plan of how reformers are to achieve that lofty goal. Likewise, descriptions of scattered programs throughout the country (and in Australia and New Zealand) were not connected to any research demonstrating their effectiveness. There was the “ought” and the “is” but little else.

This book, by Gordon Bazemore and Mara Schiff, is designed to fill that gap. To a large extent it is successful.

The goals of JUVENILE JUSTICE REFORM AND RESTORATIVE JUSTICE are to provide a comprehensive survey of existing programs in the United States, to identify and articulate the theoretical bases for restorative justice decision-making, to develop testable propositions for future research, and to propose a future research agenda. As Bazemore and Schiff add, “The crux of the problem we hope to address in this volume is therefore twofold: (1) the lack of clear standards that define various degrees of what may be referred to as the “restorativeness” of practice and policies; and (2) the lack of intervention theory that can articulate why various approaches appear to work and why some do not” (p.23).

The authors present three fundamental principles that must underlie any program claiming to be restorative. The principle of repair involves healing of harm, not only to the victim, but also to the offender and to the community. This is surely a shift from the focus of the criminal justice system on all scores. To a somewhat greater degree, the principle of stakeholder participation in the process is honored by the current legal system, at least with the reforms of the last two decades when victims now are permitted to offer impact statements and testify about their injury. The third [*377] principle, the transformation in community and government roles and relationships, is the most amorphous and hence, the most difficult to achieve or even measure. The authors note, “In promoting justice, government is responsible for preserving a just order, and community for establishing a just peace” (p.33) While this slogan might qualify for posterdom, it is not helpful in illuminating what transformation is or can be accomplished. Indeed, the community involvement in restorative justice programs seems to be the least well developed component in current programs.

The book presents a very helpful national inventory of some 773 juvenile justice programs that at least self-report as “restorative” with one or more pilots in all but three states. The most common model is victim-offender mediation and dialog and followed closely by neighborhood accountability boards. Circles are quite rare. Despite the goal of enhancing community involvement, most programs today are sponsored by courts, probation offices or other governmental entities.

Bazemore and Schiff also conducted a qualitative assessment of a sample of 25 ongoing programs. Their methodology included collecting transcripts of actual sessions. Portions of these transcripts are scattered throughout the last chapters of the book to illustrate a particular issue and are extremely helpful in letting a reader experience what happens in mediation. All the didactic discussion of identifying and accepting culpability is far less powerful than showing that issue embedded in an actual transcript like this:
Facilitator: “What happened?” [directed toward the offender]

Offender: [addressing the victim] “In any case, I am very sorry the BB struck you. I was having a party and was shooting a BB gun into the trees . . . four or five people were shooting with me trying to hit squirrels. I wanted to shoot the gun and made sure no cars were coming. I tried to shoot the sign and missed. I was surprised someone was injured. I wondered who hit the victim.”

Facilitator: “So you did shoot?”

Offender: “Yes”

Facilitator: “What are you taking responsibility for?”

Offender: “Negligence and carelessness, shooting in public . . . I was surprised someone was injured. Everyone at the party was pointing the finger at me. There were false statements in the police report. . . a girl said she told the police officer that she told me,’ no, no put the gun down before you get hurt’ . . . she did not say that. She said that to take herself out of the process.”

[After several statements from parents]

Facilitator: “Let’s hear from our community member.”

Community member: “I am confused, and I need to express confusion. If he was aiming at a sign, I don’t understand how someone was hit unless by ricochet. I am extremely uneasy giving time here when no one is really accountable for what happened. . . . We are this far into the process and I am angry there is no accountability. I was shot by a BB also. My knee was severely damaged. It changes how you look at the world. It was a profound event. I don’t see the responsibility. I feel a mix of emotions. This is not a valid process for this.” [*378]


Gordon Bazemore is clearly an expert in this field; an appendix lists 25 books, book chapters and articles on restorative justice that he has published. The authors’ proposals for evaluative criteria and suggestions for future research seem well founded and important. The book certainly makes the concept of restorative justice more accessible than the lion’s share of articles and documentaries that have attempted that task.

For citizens who simply are intrigued by the notion that there may be a better alternative to punishment or those who fear that crime is out of control, this book describes reform possibilities. For professionals who are exploring the possibility of offering a restorative program, the book is more informative than anything in the field. For policy makers who must evaluate the efficacy of ongoing restorative justice programs, the book is invaluable. The theoretical chapters are hard-going for someone who lacks formal training in sociology or psychology, but there is enough other material here to educate and stimulate any reader who is curious about restorative justice.



© Copyright 2005 by the author, Lucy S. McGough.

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LAW AND POPULAR CULTURE: A COURSE BOOK

by Michael Asimow and Shannon Mader. New York: Peter Lang, 2004. 273pp. Paper. €25.00/ £17.50/ $29.95. ISBN: 0-8204-5815-5.

Reviewed by William Haltom, Department of Politics and Government, University of Puget Sound. Email: haltom@ups.edu .

pp.399-402

Michael Asimow and Shannon Mader have assembled a “course book,” a classroom resource that prescribes films from which instructors might begin and that provides materials bearing on and spinning off from those films. Materials range from historical or comparative perspectives on the making of law to discussions of lighting, color, and editing in the making of films. Undergraduates and graduate students will profit from this book, which makes it a suitable supplement for a course on law and society or a sensible center from which papers on cinematic constructions of courtroom processes might radiate. The forte of LAW AND POPULAR CULTURE lies in the concision and variety of its components. Its foible lies in the limits of its conceptions of “law,” too often reduced to adjudication, and of “popular culture,” too often reduced to movies.

This eighth volume in the Politics, Media & Popular Culture series from Peter Lang begins with “Law, Lawyers and the Legal System.” This part of the book identifies cinematic rudiments of lawyering in designated films in the following order: the advocates’ craft via “Anatomy of a Murder;” the advocate-hero via “To Kill a Mockingbird;” the attorney-scoundrel via “The Verdict;” legal practice via “Counsellor at Law;” legal education via “The Paper Chase;” and life in law firms via the television series “L A Law.” Insights from film theory are introduced efficiently and applied effectively to films (and the one television series) to elucidate foci of each chapter. For example, editing choices and the camera’s distance from the actors enrich interpretation of adversarial tactics and strategies in “Anatomy of a Murder” (Chapter 2). In addition, prosaic equivalents of hyperlinks pop up to guide instructors and students generally regarding directors, actors, and alternative choices for common viewing and more specifically regarding the Production Code, Joseph McCarthy, and ethical dilemmas in the Preminger film. In subsequent chapters of Part I, readers learn respectively about Harper Lee, Scottsboro, and melodrama (Chapter 3); about interiors, colors, and visual design in “The Verdict” and Paul Newman’s performances as a lawyer (Chapter 4); about William Wyler and lawyer movies in the Great Depression (Chapter 5); about the uses of sound and Socratic Method (Chapter 6); and in Chapter 7 about lawyers’ workplaces in TV series about which the average student knows next to nothing (e.g., “The Defenders”). Coverage of ethical dilemmas and of older films and series expands readers’ appreciation of longer term trends in popular-cultural treatments of courtrooms and legal practice. [*400]

Part II provides four chapters regarding criminal justice. Only one classic film regarding a criminal trial (“12 Angry Men”) is assigned to follow up on those in Part I. Discussion of how filmmakers fabricate realism in Chapter 8 (“Indictment - The McMartin Trial,” an HBO film) is succinct but revealing both for other films assigned in this course book and for dramatic productions unrelated to law (for example, “Saving Private Ryan”). The approach to “12 Angry Men” seems ordinary – How might the screenplay strain if Henry Fonda or Jack Lemmon were not the solitary holdout? If Juror Number Eight were one of us, how would matters likely have proceeded? – but information about jurors’ and juries’ behaviors seems ample. “The Star Chamber” (Chapter 10) may be a daft film, but it’s a deft choice for raising procedural issues. “Dead Man Walking” (Chapter 11) is doubtless a common selection for the capital punishment, but the authors’ discussion of montages and of vagaries of punishments is uncommonly useful.

Part III presents resources by which to learn about products liability through “A Class Action,” discrimination through “Philadelphia,” and divorce and custody through “Kramer vs. Kramer.” Although other films about civil justice might be attractive to this instructor or that student, these three choices foment thought about female, African-American, and gay lawyers, civil procedures, employment law, and fault versus no-fault regimes in divorce law. In contrast to “Kramer vs. Kramer,” the custody dispute in “Liar Liar” would better inform viewers about legal skullduggery and “Divorce American Style” would better convey insights about no-fault divorce. On the other hand, the Oscar-winner for Best Picture of 1979 sustains discussion of film technique much better than the other two would. Still, vignettes from farces and parodies (for example, “The Fortune Cookie”) might have been recommended in notes or in the list of movies and television shows at the course book’s end.

The authors are careful to mention films and television shows available on DVD or VHS, so teachers and students likely will be able to review productions, to select scenes for illustration and emphasis, and to verify analyses and critiques. The assigned films are as accessible as the text is, so students may be expected to follow narratives and to identify issues on their own as well as to apply the tools that the authors provide. The analytic techniques and approaches that the authors introduce are quite adaptable across films and genres, which means that instructors may want to assign students to read the book as a whole before applying techniques from one chapter to other chapters’ films. The text is extraordinarily open, flexible, and suggestive for research projects. The authors strike a Legal Realist pose on page 7, but their critical and analytic perspectives quickly transcend the postulated Realism. As a result, this course book teems with affirmations of ethical behavior and idealized justice.

The book also features ancillaries. The documentation in endnotes is suggestive but not exhausting. The aforementioned list of television series and movies to which the authors refer in their chapters is large. The bibliography is rich with possibilities. The index is well crafted. [*401]

Nonetheless, instructors will find room for their own contributions. The lion’s share of allusions to and examples of popular culture come from the cinema, so reading lists or classroom presentations might complement this book with excerpts from novels, dramas, music, and culture highbrow, lowbrow, and intermediate. Comparisons between Grisham novels and films or between nonfiction works and films (for example, “A Civil Action”) would enable students to apply lessons across media. The course book will also accommodate more bite-sized culture from, say, Kipling’s “Danny Deever” or Housman’s “A Shropshire Lad” (IX, regarding Shrewsbury jail and private hanging in 1896 as opposed to public spectacles a century before) as well as “An Occurrence at Owl Creek Bridge” in the words of Ambrose Bierce or the images of Robert Enrico (“La Rivière du hibou,” a French short that was broadcast on “The Twilight Zone” in 1964) and a chapter or two from “Albion’s Fatal Tree” to augment investigation of hangings.

If this book goes to a second edition (and I hope that it does!), the authors might consider comedies, courts-martial, and non-American films for inclusion. Granted, many comedies about law or lawyers abound in slapstick and stereotype. Stereotypes about lawyers and suits, however, form much of the common sense that readers and students bring to their introductions to legal studies. Special “dampers” on adversarial techniques in courts-martial reveal how and why behaviors that might be allowed or celebrated in civilian courts are suspect in settings that demand more courtesy and respect for values other than winning. In the original “The Caine Mutiny” and in “A Few Good Men” respectively, Jose Ferrer and Tom Cruise confront ethical quandaries to decide just how zealously they can afford to represent their respective clients. Ethical quandaries in the shadow of a brig or a dishonorable discharge increase the stakes both for the drama and for those watching and discussing the drama. Comparative legal institutions and settings, in U. S. or foreign films, would provide expanded contexts for critical readings of cinema as well. A future chapter could compare, for example, “The Return of Martin Guerre” not only to “Sommersby” but also to the Natalie Davis book (1984).

As indicated above, many instructors will want to expand students’ appreciation of law beyond courts and of popular culture beyond movies and a smattering of series, which will necessitate roaming outside this volume. As to the first, social control in everyday life can result in a festival of Johns Ford and Wayne: “The Quiet Man,” “The Searchers,” and “The Man Who Shot Liberty Valance.” Anarchy might justify attention to the Home Box Office series “Deadwood” or, may God prevent it, one or another of the four “Billy Jack” films. “Silkwood” or “The China Syndrome” may improve on “Erin Brockovich” or “A Civil Action” to remind students that non-decisions and “resolutions” outside of and far short of courts are often preferred by those with the will and the means to keep matters out of courtrooms. John Grisham himself writes in a very popular medium that, at least for a few months for each novel, is not in a theater or on video. Popular music is a very attractive option in that all but the most hip teacher likely becomes the student and the students [*402] teachers. The considerations above suggest that LAW AND POPULAR CULTURE, fine blueprint that it is, is far from a completed structure.

Nevertheless, this course book is a terrific read and will be for readers a terrific resource. Even instructors who do not require it of their students should require it of themselves.

REFERENCES:

Davis, Natalie. 1984. THE RETURN OF MARTIN GUERRE. Cambridge: Harvard University Press.



© Copyright 2005 by the author, William Haltom.

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