SCHOOL CHOICE: THE MORAL DEBATE

by Alan Wolfe (ed.). Princeton: Princeton University Press, 2002. 384pp. Cloth $67.50 / £43.95. ISBN: 0-691-09660-0. Paper $26.95 / £17.50. ISBN: 0-691-09661-9.

Reviewed by Francine Sanders Romero, Department of Public Administration, University of Texas at San Antonio. Email: Francine.Romero@utsa.edu .

pp.598-601

SCHOOL CHOICE: THE MORAL DEBATE, a volume edited by Political Science professor Alan Wolfe with contributions from sixteen diverse scholars, is a welcome new entry in the literature of the school choice debate. Avoiding many of the pitfalls of an edited work, SCHOOL CHOICE advances the dialogue on this policy issue through an unapologetic, unswerving emphasis on expansive moral and normative questions. In so doing, it succeeds in illuminating not just the narrow topic at hand, but also the varied and often competing value frameworks that form the backdrop of many current American policy controversies. Its most notable feature is this broad scope, moving well beyond typical efforts limited to the presentation of evidence of the effect of school voucher plans, or other choice mechanisms. Even the most notable weakness of the book, the tendency of a small number of contributors to come across as rather bombastic and rigid in their views, engages the reader in this topic to an extent that eclipses narrower, empirical treatments.

The volume is organized into four thematic sections, each covering one aspect of the debate. Each section includes three long chapters and a short summary response that ties the ideas together. Although the thematic consistency occasionally lags (portions of chapters in different sections seem to have more in common than those in the same section), and the responses vary in their utility, this organization scheme helps to guide and pace the reader through what otherwise might be an overload of information. Wolfe’s introduction also does a very nice job of clearly previewing the dominant questions and controversies of each section. I found this to be a more useful entry than commonly found in edited books. Rather than try to provide an exhaustive synopsis of each contribution, Wolfe outlines just enough to pique our interest in the work to come.

The first section, centered on the theme of “School Choice and Equality,” functions as an enormously helpful primer on the issue and establishes the generally open-minded tone of the volume. Some limited evidence can be found here on the ability of vouchers to bring about a more equitable educational system. However, the real strength of the contributions by Joseph P. Vitteritti, Alan Wolfe, Stephen Macedo, and (in the section response) Paul Weithman, is a sophisticated exploration of the competing goals of equality and liberty. Vitteritti offers an educational and even-handed overview of policy choice models (market-efficiency versus social justice) and imparts some crucial, yet subtle, points about policy design and its [*599] relationship to actual outcomes; while Wolfe frames the debate appropriately as “a window for an exploration of American public values.” Macedo extends the theme by considering school choice within the larger context of the level of goods that are “due” all American citizens. All three authors also provide insightful commentary on the policy process, and the dynamics of public demand/approval of certain policies over others.

The second section covers “School Choice and Pluralism,” considering public funding of private schools from the perspective of (for good or bad) the subsequent diversification of educational opportunity. This set of contributions by Nancy L. Rosenblum, Meira Levinson and Sanford Levinson, Amy Gutmann, and (in response) David Hollenbach, is, as a whole, somewhat inconsistent and lacking in unity, probably because this aspect of the topic simply resists coalescing around a single core concept or theme. Rosenblum, in a contribution that would have been enhanced by a brief introduction to basic terms and issues, thoughtfully challenges the assertion that choice and pluralism build upon each other; while Levinson and Levinson provide a lively, reader-friendly assessment of the desirability of diversity in the classroom. These two chapters, however, illustrate the elusive nature of the section’s purported theme—while Rosenblum concentrates on diversity of schools, Levinson and Levinson focus on diversity within schools. Both topics are important, but because of the divergence, it is difficult to reconcile these essays.

In my mind, the real gem of this section is Gutmann’s disputation of a number of pro-choice arguments (again, not really accurately described by the “School Choice and Pluralism” title). Although articulating some of the same themes as other contributors, this essay most clearly conveys the battle of ideas at the heart of the school choice issue. Whether or not one agrees with Professor Gutmann’s conclusions, this chapter challenges readers to consider the serious responsibilities incumbent upon citizens seeking to preserve the vitality of liberty and choice. This piece makes a persuasive argument that individual liberty is insured only through vigilant protection of the overall societal good—in this case the beneficial returns from standardized public education.

The “School Choice and Ecology” section, although also somewhat less than clearly unified around a defined theme, offers contributions that generally focus on the implications of public funding of religious, especially Catholic, schools. Richard J. Mouw, Charles L. Glenn, Joseph M. O’Keefe, and (in response) John T. McGreevy, all provide both illuminating facts and productive considerations of the societal role of Catholic schools and how that fits in the school choice context. Mouw offers an instructive history lesson on the Netherlands school settlement of 1917, drawing parallels to the contemporary American setting. He concludes with a provocative challenge: just because religion at its worst is a negative influence does not necessarily mean we can afford to ignore the contributions of religion at its best, especially in regard to education. Glenn continues the international focus with an overview of a multi-nation study of public funding of non-public schools. Although the evidence he presents is sometimes less [*600] than compelling, again the strength is not in facts and descriptions but in the broader question raised—do the unique circumstances of our nation’s founding and governing philosophy render successful experiments in public funding of private schools in other countries irrelevant to our situation? Finally, O’Keefe zeroes in on the Catholic educational mission, contributing in particular a thoughtful consideration of how Catholic social teaching clashes with the free market philosophy that would, ironically, make these schools the beneficiaries of voucher or other similar funding mechanisms. I especially appreciated the serious explanation of the philosophy of religious schooling in this and the other chapters in this section. Although there are of course strong rejoinders to these arguments on the advantages of religious schools, a constructive dialogue cannot take place in the absence of forthright discussions of what the missions of these schools actually are.

The fourth and final section tackles “School Choice and the Law,” with chapters by Martha Minow, Michael J. Perry, Rosemary C. Salomone, and (in response) Patrick McKinley Brennan. Readers interested in the purely legal considerations of the school choice debate may be somewhat disappointed in this section, as it is more a conceptual than a factual overview. Still, there are important insights to be found here. Minow addresses the role of due process and equal protection questions in school choice challenges, thus shedding light on potentially meaningful constitutional considerations usually bypassed in favor of First Amendment arguments. Salomone sketches a useful history of the “religion” of public schools as it evolved from basic Protestantism to secular democracy and also very adeptly explains the consequences of an overly loose understanding of the distinction between direct and indirect public aid to private schools. I was disappointed, however, that Salomone’s chapter was not updated to discuss the Supreme Court’s decision in the Cleveland school voucher case (ZELMAN v. SIMMONS-HARRIS, 2002), referring only to the pending decision. Although the conference that inspired this book was held before the case was decided, the decision was certainly available well in advance of publication, since it is referenced in the “Introduction.”

Perry’s chapter on the Establishment Clause is somewhat maddening, but for that very reason contributes to the thought provoking nature of this volume. What is frustrating about Perry’s contribution is that, after dismissing the utility of predicting the positions of Supreme Court justices on this matter in favor of seeking out the “best” interpretation, he proceeds to justify his conclusion with essentially his personal opinions, bolstered by arguments made by Justices with whom he agrees. Brennan’s response to this section, while providing an intriguing discussion of James Madison’s views on the moral duty of citizens, is similarly heavy-handed. Both Perry’s and Brennan’s rather dogmatic insistence on the moral justification of generous school choice policy ironically reminds the reader of what some of the opponents of vouchers and other mechanisms fear—an intolerant and rigid approach to education.

Albeit refreshingly forthright, these pieces inject a somewhat contentious [*601] tone to the volume that was absent in the first three sections. For example, one could quite effectively and thoughtfully contrast Gutmann’s and O’Keefe’s views on the utility of public funding of religious schools. While disagreeing on crucial points, to some degree at least they seem to approach the topic with a commitment to shared goals. Reading these two chapters together leads to a deeper understanding of the subtleties of disagreements on school choice. On the other hand, Gutmann’s chapter seems to reside on the opposite side of a conceptual chasm from Perry’s and Brennan’s. Encountering these chapters together might lead the reader to despair of the possibility of any progress on this issue.

These and other previously mentioned concerns aside, however, this volume does coalesce into a useful whole that constructively advances the dialogue on school choice. I gained a great deal of information from this book, and it inspired me to think through some novel concepts. The subtitle is accurate—this collection of essays moves beyond typically bland discussions of the arguments and evidence for and against school choice to dive into an unabashed, yet even-handed, debate on the moral aspect of this question. I doubt that anyone who reads it will ever participate in, or listen to, prosaic debates on school choice in the same way again. What most excited me about this work was its reflection of a broader truth of the American political arena—the sometimes antithetical, yet equally legitimate, value frameworks that inform policy decision-making: liberty versus equality; community versus efficiency, and so on.

I plan to assign SCHOOL CHOICE for my graduate-level policy analysis course to illustrate this dynamic. Students introduced to these essays will achieve not only an understanding of the issue at hand, but also a better sense of the guiding principles of our democracy, as well as crucial disagreements in regard to those principles. The collection is written at an appropriate level for graduate students and would probably also work for undergraduates, although the scope and length might prove a bit daunting. Scholars focusing on the school choice debate should certainly add this volume to their collection. I would also encourage those who do not think they are particularly interested in this topic to give the book a chance. The ideas at play here illuminate far more than the worth of school vouchers.

CASE REFERENCE:

ZELMAN v. SIMMONS-HARRIS, 536 US 639 (2002).



© Copyright 2005 by the author, Francine Sanders Romero.

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THE WAITE COURT: JUSTICES, RULINGS, AND LEGACY

by Donald Grier Stephenson, Jr. ABC-CLIO, 2003. 349pp. Hardcover. $65.00. ISBN: 1-57607-830-2.

Reviewed by Charles McCardell, Attorney/Law Librarian, VFMAC. Email: chasm1@comcast.net .

pp.594-597

Editor Peter Renstrom explains in his Forward to THE WAITE COURT: JUSTICES, RULINGS, AND LEGACY that the ABC-CLIO Supreme Court Series is designed to reach not only the academic and legal community, but also a more general audience interested in Supreme Court history. When completed, the Series will encompass the tenure of each of the fourteen Chief Justices in the Court’s history, beginning with John Jay and ending with current Chief Justice William Rehnquist.

Donald Grier Stephenson’s volume follows a very similar format laid out in the previous handbooks. Part I begins with a brief overview of the Court and the historical period, moves on to provide biographical background on each justice to sit on Waite’s Court, discusses the major cases decided during Waite’s tenure, and concludes with an analysis of the legacy and impact of the Waite Court. Part II contains approximately 90 pages of supporting reference materials – key people, laws, events, documents, and a table of cases. There is a glossary of legal terms and an annotated bibliography of books, articles, court reporters, internet resources and manuscript sources. THE WAITE COURT is the perfect start for anyone reviewing the Supreme Court under Chief Justice Morrison Remick Waite.

Waite, seventh Chief Justice, held the position from March 4, 1874 until his death, March 23, 1888, 14 years later. In his position Waite carried enormous duties. “In 1877, Chief Justice Waite lamented that his Christmas ‘vacation as it is called . . . has consisted in writing nine opinions.’ The tenor of his correspondence shows the extreme strain upon the Court: he described himself as ‘a machine’ and ‘a slave,’ ‘harnessed into my treadmill,’ ‘worked almost to death’ with ‘hardly time to breathe,’ noting that the hard work ‘has worn me out completely.’ In addition, in an era before pension legislation would facilitate retirement, not all members of the Court were able to pull their weight. As a result, Chief Justice Waite wrote an astounding number of opinions for the Court - 873 during his fourteen-year tenure, an average of more than sixty per term. Only Justice Holmes, who served more than twice as long on the Court, wrote (one) more” (Cordray and Cordray 2004 (internal citations omitted)). On March 5, 1888 Waite completed his last opinion in the TELEPHONE CASES, sustaining the 1876 patent of Alexander Graham Bell and laying the legal foundation of the U.S Telecommunications industry. Oral arguments lasted 12 days in January and February of the preceding year. Waite’s opinion, Justice Bradley’s shorter dissent, and descriptions of the patent disputes totaled 500 pages, the entire contents of 126 U.S. Reports! Although [*595] Waite was suffering from pneumonia, he attempted to read his opinion in court, but he was unable to finish. Waite died four days later at seventy-two years old. In addition to having an ailing Chief Justice at the end, the Waite Court had another similarity to the Rehnquist Court. The Waite Court was embroiled in the controversial election of 1876-77 (pp. 228-236).

As Stephenson notes, of the 14 justices who served with Waite, “fully one-third of them have been accorded great or near-great status by scholars of the Supreme Court” (p.xii). Justices Field, Miller, Bradley, and Harlan top the list.

Stephenson divides the Court into three distinct periods with “relatively stable membership and a somewhat different character . . . first (1874-1877), middle (1877-1881), and last (1881-1888) Waite Courts” (p.xii). He also looks at the evolution of the Supreme Court as moving from a “classical” to a “modern” Court, with the Waite Court occurring in the “transition” period. Stephenson suggests that the “standard” terms of “old Court” and “new Court,” focusing on the Court’s resistance during Chief Justice Hughes’ tenure to FDR’s New Deal legislation and the Court-packing threat in the 1930s, is too limited. The old Court was property-oriented and minimized government’s role in commercial activity; the new Court stressed guarding the nonproprietary rights of individuals.

For Stephenson, the classical Court, which starts with Jay and Marshall, limited federal jurisdiction, primarily addressed errors rather than leading legal policy, and was burdened with circuit court duties. The modern Court, by contrast, expanded federal jurisdiction, increased the focus on individual rights, and encouraged the role of the justices as “arbiter of policy for the nation” (p.226). Because he observes the Waite Court to have more in common with its earlier predecessor under Chief Justice Marshall than its successor under Fuller, Stephenson marks Waite as a transitional figure.

Conversion was set in motion by the three Reconstruction amendments and congressional statutes restricting state authority in order to protect individual rights. The Court under Chief Justice Salmon P. Chase hesitated to expand federal jurisdiction, and Stephenson cites BLYEW v. UNITED STATES (1872) and the three SLAUGHTERHOUSE CASES (1873) as evidence. A third example, SEWING MACHINE COMPANIES CASE (1874) was decided during the search for Salmon’s successor.

The Fourteenth Amendment contains unique language in Section 1 and an equal protection clause that became fertile soil for litigation involving racial justice. Even the privileges and immunities and due process clauses, usually limited to occupational freedom and property use, were “critical issues of civil liberties and civil rights. Property was then, as now, an indispensable basis of freedom” (p.226).

After reviewing the legacy of the Chase Court, Stephenson sketches the political context accompanying each appointment to the Waite Court and the social and historical events influencing the Court, including population growth and industrialization in the post-Civil War era, as well as the expanding jurisdiction [*596] and increasing caseload of the Court’s docket.

Stephenson also provides detailed biographical sketches of all the Waite Court members in order of their appointment, starting with Nathan Clifford, President Buchanan’s only appointee. He then analyzes the major decisions, grouped under several topics – civil rights, the Bill of Rights, due process of law and the state, and the Commerce Clause –and summarizes the legacy and impact of the Waite Court as a transitional court. Part Two contains the reference materials.

Since civil rights cases still reach the Courts docket, it is interesting to review the Waite Court’s early decisions in the nascent civil rights movement. The Enforcement Act of 1870 addressed voting rights and racial discrimination, and U.S. v. REESE (1876) and U.S. v. CRUIKSHANK (1876) challenged the statute. In MINOR v. HAPPERSETT (1875) Waite writes an opinion deciding whether the privileges and immunities clause barred states from excluding women from the polls. EX PARTE YARBROUGH (1884) is the primary case supporting federal protection of voting rights. Justice Bradley, writing for the 8-1 majority, denied Congress the authority to ban racial discrimination in places of public accommodation and on public conveyances in the CIVIL RIGHTS CASES (1883), and Justice John Marshall Harlan wrote his first dissent. Indeed, Stephenson offers a wonderful story about Justice Harlan’s drafting of his dissent. According to Mrs. Harlan, her husband had “writer’s block” and could not finish the draft. She fetched an old inkstand from storage, which had belonged to Chief Justice Taney and had been used by Taney to write his DRED SCOTT opinion. The thought of that ignominious decision, “temporarily tightening the shackles of slavery upon the Negro race” (p.162), provided ample impetus to complete his draft, a dissent that Harlan would revisit in PLESSY (1896) as a member of the Fuller Court. The other sets of issues mentioned above are also covered with the same skill and thoroughness, blending history, case analysis, and personal anecdote.

This is a highly readable reference book, accessible to a wide audience. Stephenson has provided considerable material for students and scholars to better understand the transitional Waite Court.

REFERENCES:

Cordray, Margaret Meriwether, and Richard Cordray. 2004. “The Calendar of the Justices: How the Supreme Court’s Timing Affects its Decisionmaking.” 36 ARIZONA STATE LAW JOURNAL 183-255.

CASE REFERENCES:

BLYEW v. UNITED STATES, 80 U.S. 581 (1872).

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

EX PARTE YARBROUGH, 110 U.S. 651 (1884).

MINOR v. HAPPERSETT, 88 U.S. 162 (1875).

PLESSY v. FERGUSON, 163 U.S. 537 (1896). [*597]

SEWING MACHINE COMPANIES CASE, 85 U.S. 553 (1874).

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

TELEPHONE CASES, 126 U.S. 1 (1888).

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

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



© Copyright 2005 by the author, Charles McCardell.

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INTERNATIONAL LEGAL ARGUMENT IN THE PERMANENT COURT OF INTERNATIONAL JUSTICE: THE RISE OF INTERNATIONAL JUSTICE

by Ole Spiermann. Cambridge: Cambridge University Press, 2005. 538pp. Hardback. $120.00/£70.00. ISBN 0-521-83685-9.

Reviewed by Donald W. Jackson, Texas Christian University. Email: d.w.jackson@tcu.edu .

pp.590-593

Ole Spiermann’s book on the Permanent Court of International Justice (1923-46) is a revised version of his thesis submitted for a Ph.D. at Cambridge University in 1999. It mostly reads as one might expect of a book with that origin. It is a detailed analysis of archival decisional materials from the Permanent Court, which was the precursor to the International Court of Justice, both located at The Hague. The Permanent Court was approved by the Assembly of the League of Nations in1920, and its decisions were binding on the nation states that signed and ratified the Protocol of December, 1920. Unfortunately, no major international problems were submitted to or decided by the court (von Glahn 1992). Thus, this book is likely to be more useful to legal scholars of doctrinal international public law than to political scientists who work within the field of comparative judicial politics, but there are a few insights that may be of more general interest.

A paradox is noted in the first page of the Foreword: while the accumulation of precedents these days represents a rapidly developing jurisprudence of both private and public international law, there is “a pervasive sense that the whole ‘system’ is insecure, uncertain in its constitutional underpinnings, erratic in the political support for it and largely unrelated to key issues facing the world at this time” (p.xiii). A reasonable observer—even one from the United States (who is relative free of an ideological screen)—might suggest that this insecurity and tentativeness is largely a function of the hostility of the current U.S. administration toward any constraints flowing from international law that might impede or limit the pursuit of perceived U.S. national interests. Many other nations are on a different path—one that leads to an increasingly significant ambit, especially for public international law.

At its founding, the Permanent Court of International Justice was at the cutting edge of institutionally-based international law. So was its successor, the International Court of Justice, founded in 1946. Spiermann argues that 1966 was an especially important year in the history of the International Court of Justice, noted especially for the dissenting opinion of Judge Tanaka in the 1966 SOUTH WEST AFRICA case (seen by some as the beginning of a “highly functional, problem-solving approach), but Spiermann argues that this approach to judicial decision making in 1966 was also present in the Permanent Court in the 1920s, though perhaps not in the 1930s (pp.18-30). [*591]

The overarching conceptualization in this book involves the relationship between national and international law. While a nation-state may be sovereign within the context of national law, the state is not necessarily preemptively sovereign in the context of international law. Thus:
True, it is the conception of the state as a sovereign defined in relation to national law; it defines the sources and subjects of national law as well as the relationships governed by national law. But then in order to come round to, and conceive of, international law, one has to be a national lawyer – that is, a lawyer concerned with one or other national legal system – or at least to be familiar with national lawyers’ ways of reasoning. International law is the response to a need felt by national lawyers, for law that separates and complements the several national legal systems. It is because of its bearing on the conception of the state as a national sovereign that international law, though ‘international,’ is ‘law’ (and as such is binding) and the reason why it is offered as part of university course in national law. . . .

That the rationale behind international law is to complement national law explains the duality of coordination and separation, which characterizes the relationship between national and international law. The two legal systems are coordinated in the sense that international law governs issues for which national law is unsuited (pp.45-47).


Spiermann thus adopts a traditional dichotomy of an “international law of coexistence, which involves “interstate rules of mutual respect for state sovereignty and abstention from interference in such sovereignty” and a newer positive international law of cooperation” (p.48). The international law of cooperation involves efforts to control destructive competition, which can mean either war or the ruinous exploitation of the earth’s resources (Friedmann 1964). The international law of coexistence defines relationships between states, while the international law of cooperation transcends nation states and involves contracts and relationships that are truly international in form. For example, while the European Convention of Human Rights and Fundamental Freedoms (1950) began as a treaty between and among contracting states, it created a larger order that transcends the nation state and creates obligations that benefit from transnational or supranational enforcement.

In the same manner, Article 38 of the Statute of the Permanent Court of International Justice empowered that court to apply international conventions, international customs as evidenced by general practices that are accepted as law, and the “general principles of law recognized by civilized nations” (p. 58).

To sum up, Spiermann proposes that a nation state be viewed as a national sovereign (and under some circumstances as an international sovereign entity, but also as a subject under international law. This conceptualization seems to take a firm stance on the side of transnational or international enforcement of general practices and procedures recognized by civilized nations. On the other side are the advocates of a position sometimes approaching moral absolutism favoring nation state sovereignty, but there also we find a paradox. Those strongly [*592] asserting the sovereign rights of the United States seem quite willing to intrude upon the sovereignty of other nations. Cynics might argue that we have highly protective sovereignty for rich and powerful states, while weaker nations are seen as being subject to the demands of the rich and powerful (international law?). Yet, although that may describe certain aspects of current U.S. policy, other relatively rich and powerful nation states (most of our traditional European allies) seem more willing to accept that they also are subjects under international law and ought to be held accountable for their transgressions.

In any event, Spiermann identifies the tension that has long characterized the relationship between national and international law and applies his conceptualization to the positions that were taken in the decisions of the Permanent Court of International Justice during its tenure. Part 3 accomplishes that purpose, and it contains the longer part of his book. Chapter 5 examines the foundational period (1922-24), Chapter 6 (“An International Lawyer’s Approach”) covers 1925-30, and Chapter 7 (“A National Lawyer’s Approach”) covers 1931-40.

The “international legal argument” of the title of this book mostly refers not to the arguments of counsel before the Permanent Court, but to Spiermann’s analysis of the reasoning in its decisions. I found the analysis to be often obtuse and usually unpersuasive. Perhaps Spiermann’s analysis of the subtleties of these decisions will be of interest to those who believe that such nuances, mostly in obscure cases, actually determine or contribute to the development of international law, but I am not among them. In my view he does not find useful concepts or outcomes that have much vitality or interest.

As Spiermann notes, most of the cases in the 1920s involved treaty interpretation, yet these are discussed in a manner that isolates the cases from events in the outside world. This becomes especially problematic in Chapter 7 (1931-40), when the events leading to the Nazi accession to power in Germany and the coming of World War II make the analysis of the Permanent Court’s opinions—largely isolated from consideration of European and world politics—especially problematic.

In his general conclusions, Spiermann argues that the Permanent Court of International Justice was a success simply because it was a pioneering institution. That may be, but this book does not demonstrate its significance beyond that. At the end, Spiermann does come out strongly in favor of what he calls the international lawyer’s approach:
[T]hat the better approach is the international lawyer’s approach as adopted by the Permanent Court in the 1920s is a lesson that cannot be learned once, a hindrance international law could not simply overcome in the 1920s. It is a daily quest for international lawyers. International law being this complementary and residual legal system that owes its existence to national law, there is always the risk that the international lawyer fails to restraint (sic) the national lawyer lurking within him or her (p.404). [*593]


REFERENCES:

Friedmann, Wolfgang. 1964. THE CHANGING STRUCTURE OF INTERNATIONAL LAW. New York: Columbia University Press.

von Glahn, Gerhard. 1992. LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW. New York: Macmillan.

CASE REFERENCES:

SOUTH WEST AFRICA case [1966] ICJ Reports 6.



© Copyright 2005 by the author, Donald W. Jackson.

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HARD CHOICES, SOFT LAW: VOLUNTARY STANDARDS IN GLOBAL TRADE, ENVIRONMENT AND SOCIAL GOVERNANCE

by John J. Kirton and Michael J. Trebilcock (eds). Burlington, VT: Ashgate, 2004. 390pp. Cloth $99.95/£55.00. ISBN: 0-7546-0966-9.

Reviewed by David Vogel, Haas School of Business and Department of Political Science, The University of California, Berkeley. Email: vogel@haas.berkeley.edu

pp.587-589

This important collection of essays addresses the growing importance of “soft law” in international politics. The editors, John J. Kirton and Michael J. Trebilcock, use this term to refer to norms and standards that are not legally enforceable and whose legitimacy does not primarily derive from governmental authority. Soft law primarily takes place through two instruments: voluntary standards, such as those promulgated by corporations or non-government organizations, and international governmental or quasi-governmental institutions that depend on voluntary compliance and participation by firms or other governments. International corporate labor codes, such SA 1000, and NGO sponsored labels, such as those of the Forest Certification Council and Fair Trade, fall into the former category. The corporate codes developed by the Organization for Economic Co-operations and Development (OECD), the United Nations and the national labor standards of the International Labor Organization fall into the latter.

The broad scope of this volume is both its strength and its weakness. Its eighteen substantive essays cover topics ranging private forest certification and corporate labor standards to the relationship between trade policies and labor and environmental standards, as well as specific essays on the Canadian government’s policies toward investment in the Sudan and the regulation of agricultural biotechnology. An important advantage of this breadth of coverage is that it permits the reader to appreciate the extensive interaction between private and public regulation, or between soft and hard law. As the editors note, not only is the line between the two fluid, but, as several of the contributors observe, the emergence of voluntary standards has both influenced and been influenced by developments in public policy.

However, the price paid by this breadth of coverage is a certain lack of intellectual coherence. Voluntary standards for labor practices and sustainable forestry may well stem from the failures of states to agree on legally enforceable standards or their unwillingness to incorporate such standards into legally binding trade agreements, but the political and legal dynamics of trade negotiations and agreements are very different from those governing voluntary labor and environmental standards. Moreover, covering both subjects in one volume means that neither is addressed as comprehensively as it deserves.

Nonetheless, this is an important collection of essays that deserves to be carefully read by scholars interested in the dynamics of labor and environmental regulations and standards in the global economy. It represents a comprehensive [*588] and sophisticated effort to place the phenomenon of non-state governance, or “governance without government,” as one contributor puts it, in both an historical and theoretical context. Of particular value is the political and analytical framework it provides for political scientists to appreciate the phenomenon of corporate social responsibility (CSR), an increasingly important dimension of private business regulation, whose study has until recently primarily been confined to students of management. Wilkie’s essay on the relationship between corporate social responsibility and the rules governing international trade and investment presents an especially valuable analysis of the relationship between the two.

Among the more important contributions of this volume is to document the increasing importance of voluntary standards, especially at the international level. Much of this growth reflects the perceived shortcomings of “hard” law. Specifically, World Trade Organization rules and rulings have prohibited the use of labor standards and limit the use of environmental norms as a basis for trade restrictions. At the same time, the governments of many developing countries are either unable or unwilling to enforce adequate domestic protective regulations. The result is that economic globalization has failed to benefit adequately many citizens in the world’s poorer nations.

Voluntary regulation has emerged to fill this legal and normative vacuum. In fact, soft law, such as that reflected in voluntary codes and certification schemes, has some important advantages over “hard” law. Most obviously, it is easier to adopt as it need not go though the laborious process of securing governmental approval, something which can be particularly difficult at the international level. In addition, precisely because it works though market mechanisms, it is more palatable to policy-makers and many citizens in developing countries. The latter have often strongly opposed the efforts of some western governments and many western activists to use trade policy to keep out “irresponsibly” produced products on the grounds that restrictions represent a disguised form of protectionism. Private systems of regulation are less objectionable since they rely on voluntary agreements between western firms or consumers and developing country producers.

There is an enormous literature on CSR, but much of it is marred by a strong normative bias. The typical book or article on CSR is unrestrained in its enthusiasm, based on the uncritically examined assumption that global firms now need to act “responsibly” if they are to maintain the support of consumers, employees and investors. Other writers on CSR dismiss its significance entirely, finding it difficult to believe that firms can act responsibly in the absence of additional legal requirements. The reality, as several essays in this book demonstrate, is more nuanced.

An important strength of this edited volume is that its contributors do not share a uniform perspective about the impact of voluntary standards on global environmental and labor practices. They neither exaggerate nor minimize its importance. For example, the three essays on private forest certification – an area in which the use of voluntary codes and private certification standards has been particularly extensive – present a mixed and balanced picture, noting both its important accomplishments and its [*589] equally significant limitations. The essays on voluntary standards in other areas, such as human rights, labor conditions, and biosafety, present a similarly mixed portrait of their impact.

Yet, at the same time, each essay is informed by a common understanding that soft law is playing an increasingly important role in governing a wide variety of dimensions of international business behavior and that scholars interested in understanding global business regulation can no longer confine their analysis and research to rules and standards primarily issued and enforced by governments. Norms such as those reflected in much of soft law, do matter. Moreover, future regulation of global corporate conduct is likely to involve a combination of hard and soft law. Determining their appropriate mixture represents an important challenge for both activists and policy makers, and this volume makes an important contribution to help us think more clearly about what their relationship has been, and where it might be headed in the future.

It is to be regretted that the high price of this volume will limit its accessibility to many scholars. It deserves to be carefully read by anyone interested in understanding the myriad forms of governance that have emerged in the global economy, and the role each has and is likely to play.



© Copyright 2005 by the author, David Vogel.

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LAW AFTER AUSCHWITZ: TOWARDS A JURISPRUDENCE OF THE HOLOCAUST

by David Fraser. Durham: Carolina Academic Press, 2005. 464pp. Cloth. $48.00. ISBN: 0-89089-243-1.

Reviewed by Thérèse O’Donnell, Law School, Strathclyde University. Email: therese.odonnell@strath.ac.uk

pp.581-586

Throughout the Nazi period, German lawyers continued to act as lawyers . . . Judges judged, even while Auschwitz spewed forth its smoke and ash. The rhetoric and ideology of the rule of law and the criminal Nazi state do not allow for such complications. The [sic] is the lie of law after Nuremberg, just as it is the lie of law after Auschwitz. Law continued while six million died. (p.145)

David Fraser’s thesis, in LAW AFTER AUSCHWITZ, is that there is little to distinguish between our fundamental understandings and practices of law and those of German lawyers and judges between 1933 and 1945. He aims to refocus jurisprudential efforts in order to confront lawyers’ collective, institutional and professional participation in the Holocaust. Rather than seeing the Holocaust as an extraordinary moment where SS madness dominated, by surveying the legal establishment’s accommodation and application of discriminatory laws, Fraser sees the Holocaust as “the culmination of the acts of ordinary people in the ordinary course of events within ordinary governmental and legal structures”(p.5), using techniques no different to today’s. For him, Auschwitz was “law-ful/full,” and rather than the extraordinariness of the Holocaust making it difficult to be judged in a court room, its ordinariness – its ordinary lawfulness – causes difficulties for law.

Fraser maintains that he is not suggesting that Nazism was inevitable in modernity, that law is inherently evil or that we are all Nazis; but rather, if Nazi law is law, then it raises questions about our capacity to combat good and evil. The real question is what we should, can and must do when confronted with legalised evil (p.42). After all, Bernhard Loessner (Jewish expert in the German Ministry of the Interior) sought to be a good lawyer. The consequences of his diligent drafting were largely irrelevant to his professional self-understanding (p.37). To simply declare Nazi law not to be law may merely allow avoidance of our responsibilities when faced with basic questions of right and wrong (p.21). Perhaps the non-drawing of legal lessons from the Holocaust is not due to its status as non-law but a conscious refusal to draw from a perceived poisoned well in pursuit of “jurisprudential self-assurance and a guiltless juridical conscience” (p.12). Nazi legality can then be written out of Western juridical history (p.25) and healthy legal normality re-established.

Where are justice and ethics for lawyers? Is the Holocaust absent from the law school curriculum because it is seen as “not law”? While the Holocaust is more likely to be incorporated into a law and social theory class (using Hannah Arendt), such consideration reaches only a minority of postgraduate law students. [*582] For undergraduates, the Holocaust remains fixed in the 1950s Hart/Fuller debate, while students are delicately maneuvered through the various schools of thought, passing by modernism and realism on the way to post-modernism. This book reinforces the importance of law-makers’ and decision enforcers’ identities as ethical actors. To this end the ideas contained within Fraser’s book may be usefully analysed in professional legal ethics courses or in general philosophy courses investigating what happens when key agents of power are engaged in destructive courses of action. Further, it points to the need for ethics to be more widely and fundamentally embedded into a lawyer’s general legal education rather than being perceived as a philosophical, erudite add-on. This work might also provide equally useful food for thought for medics (particularly given the focus of the concluding chapter on dubious medical practices which continued in Allied countries long after the war’s end), or bureaucrats involved in the administration of law, given their potential as desk-killers.

Although earlier parts of the book consider the role of ordinary German lawyers, policemen and judges, and although he cites Goldhagen’s HITLER’S WILLING EXECUTIONERS, Fraser does not find the Holocaust to be a uniquely German phenomenon, identifying (by drawing on the work of Weisberg 1996) a similar legal construction and accommodation of exclusion in Vichy France (pp.157, 164). However, Fraser does indicate obvious desires to construct the Holocaust as a German problem by the operation of US and Canadian immigration law, where law exercised a prophylactic function, denying entry to those who lied about Nazi pasts. It operated as the “civil equivalent of excommunication” and kept the Holocaust itself as a “foreign problem.” Thus, the “Holocaust is not an American legal problem. Lying about it to come to the United States is an American legal problem” (p.235).

It is unclear what will cause most controversy from Fraser’s book – the idea that a law without any ethical bearing can properly be considered “law,” or that laws permitting mass annihilation are like any other laws. The controversies surrounding any potential for rendering the Holocaust “mundane” are of wider interest and have already been touched upon by Alain Finkielkraut (1992, at 70), in the context of televised proceedings, and despite Fraser’s reassurances, to say “It is the very normality of the Holocaust and of the legal basis of the Holocaust which challenges us” (p.12) will no doubt provoke widespread reaction.

Fraser also keeps the reader informed about what he is not saying and what should not be implied. For example, denoting Nazi law as “law” does not render it “good”—“Nazism was and is evil” (p.7). Further, a theory of continuity between Nazi law and legal practices/traditions of Weimar and of other Western democracies “does not mean nor does it suggest, Western democracies could not or can not be, distinguished from Nazi Germany. Nor does it mean that the Holocaust happened or could have happened in the United States or Great Britain” (p.84). Finally, “I am not making the point that America and Nazi Germany in 1939 were the same. . . Rather, I am simply pointing out that articles in the academic [*583] mainstream of American legal education easily convey the impression that Nazi law in the 1930s, with its anti-Semitism and policy of racial biology, was not considered to be completely excludable from that mainstream of American legal thought” (p.96). While this may read as lawyerly defensive writing, it is probably wise for Fraser to enter these caveats, given the need to make clear the blue water between his own position and that of Holocaust apologists and deniers. Fraser does not seek to relativise the Holocaust as deniers do, and has indeed written on Holocaust denial and the “scholarship” of hate in FACES OF HATE (1997).

Fraser’s book is organised into eleven chapters which together analyse the period before WWII, Auschwitz, immediate post-WWII, and more recent prosecutions of war criminals. Fraser devotes considerable attention to the post-war approaches taken in the United States (identifying the Holocaust as not American), France (involving complex analyses of the purge and statutes of limitations), Britain (where he identifies clear anti-Semitic sentiments expressed prior to passage of the 1991 War Crimes Act, (pp.281-286)), Canada (with its tussles with ordinary criminal law and immigration law), and Australia (where the issue of multiculturalism comes to the fore). Each chapter acts as a case-study to support Fraser’s central thesis that pre-Auschwitz law had to be understood as non-law for post-Auschwitz lawyers to be able to judge it. Fraser writes in an engaging style and keeps the reader with him throughout the book, no mean feat given the morass of material managed and the uncomfortable ideas engaged.

Fraser’s structuring of the book does much to support his thesis of a continuum between the legal structure which supported the Holocaust and the procedures, tools and techniques deployed for and by lawyers today. Reiterating the relevant 1930s Nazi law and its consequences is useful in rendering the reader simultaneously familiar with and distanced from the material. However, Fraser then steps back and considers how such law was observed by the non-Nazi world in the 1930s, before the consequences took their full toll. This jolts the reader back to the law of the pre-Auschwitz world and the wider international context. Fraser considers that what explains the external understandings and constructions of the Nazi legal apparatus is that it was considered law. Fraser identifies three key points: that eugenic discourse and legislative practice were on the agenda of Western industrialised countries in the early part of the century; that they were on a “legal” agenda of such societies must cause questioning of the “illegality” of a central part of Nazi law; and that it is important not to view such debates with the benefit of hindsight through the prism of the Holocaust (p.108). Fraser’s previous work of a similar nature has been cautioned for its readiness to suggest morally suspect complicity, since legal trends in areas like abortion and euthanasia are socially constructed ideas meaning different things in different societies (Koskenniemi 2004, p.845). Nevertheless this is a context worth investigating, particularly when Fraser considers whether Nazi law was rendered not law once it became the product of an enemy, and thus a discontinuity thesis simply became part of a propaganda campaign (pp.79, 103). [*584] To then move to Nuremberg as a point of rupture is particularly interesting and also crucial to Fraser’s thesis, because it is those very outsiders who later appear to offer themselves as instruments of justice and identifiers of non-law at Nuremberg.

For Fraser, the Nuremberg International Military Tribunal (IMT) simply represents epistemological and ontological maneuvers to invent the notion of the criminal state (p.82) and to legitimise the modern civilised rule of law. This ideological goal was not unacceptable, nor the trials unjustifiable; however, for Fraser, Nazi law was never “not law,” but rather “bad law” (p.122). It has increasingly been articulated that the Holocaust played a relatively small role at the IMT (Bass 2000, p.74). Nevertheless, Fraser considers that the Nazis were convicted at Nuremberg for their roles in the Holocaust. He focuses particularly upon the case of Julius Streicher (the well-known anti-Semitic propagandist) whom Fraser believes was convicted and executed for who he was rather than what he did, given the questionable interpretation by the IMT of its own Charter. Fraser makes an interesting point that the idea of malign persuasion served to exculpate the German people who had been infected by Streicher’s form of hatred (p.135).

Contemporary critics claimed Nuremberg as a starry-eyed American program, and American support of Nuremberg was explicable since it embodied American idealism “through submitting the fate of the Nazis to reason and law rather than the arbitrary dictates of power” (Bosch 1970, p.233). Fraser agrees that Nazi law was demonised, criminalised and defeated by the enforcement of real, American law. This characterisation of un-Americanism when applied to the Holocaust and Holocaust perpetrators was reinforced by US denaturalisation and deportation proceedings. Yet law seems again incoherent and focused on the creation of an “other,” given the usually robust American defence of free speech via the First Amendment. Fraser provocatively concludes that “Nazis are not wanted unless they are American Nazis” (p.251).

Many of the French post-war trials for crimes against humanity seem to represent a fight between the continuity/discontinuity schools of thought. In Barbie’s trial his lawyer sought to parallel Nazi brutalities with those perpetrated by France in its colonies. (Fraser even goes so far as to suggest that Papon’s trial, the last (and only) trial of Vichy, could become the first trial of Algeria (p.212).) In Touvier’s trial a strict Gaullist interpretation could not render him guilty of crimes against humanity since Vichy was never a State. Papon uncomfortably embodied the seamlessness of French society, from Vichy to Paris Police Chief in the 1960s and later Cabinet minister, making the complete disjuncture between troubling periods of French history difficult to sustain. Indeed, even though the French Government accepted liability for Papon’s actions in a subsequent civil suit, it did so on the basis of the fault of its agents, thus rejecting any continuity thesis. Fraser believes the “fault” was that of Vichy bureaucrats to follow the law, concluding that the jurisprudence of the Holocaust in France is, “like the jurisprudence of the Holocaust [*585] elsewhere, an often-futile examination of law’s self-delusion” (p.213).

Can Holocaust-perpetrator trials have a pedagogical function? Despite being a significant consideration in the French cases and the Israeli proceedings against John Demjanjuk, Fraser is doubtful. While acknowledging that testimony can establish, in dramatic, personal and collective terms, the history and phenomenology of the Holocaust and its existential reality for a particular polity, he suspects that juxtaposing history and legal principle often leads to a diminution of both or the creation of a barrier between them. In Demjanjuk, Israeli law and understandings of the Holocaust emerged as separate and distinct discursive and ideological practices. In the context of the UK War Crimes Act of 1991 and the slightly faltering proceedings taken thereunder, it might have been interesting for Fraser to further consider how this legislation contributed to the establishment of Holocaust Remembrance Day in 2001 – an event aimed at constructing UK collective memory of the Holocaust. Indeed, Fraser interestingly sets Anthony Sawoniuk’s conviction against the media background of the Augusto Pinochet case and the Kosovo crisis (pp.296-297).

In the Canadian FINTA case, Finta successfully had his acquittal reaffirmed, which in turn reinforced the strength of the rule of law. However by reasserting that crimes against humanity involved the pursuit of particular policies by “cruel and terrible actions,” the court simultaneously reinforces the uniqueness of the Holocaust. Arguably this is a self-defeating process in creating a “special” category of crime and criminal, to which ordinary rules do not apply, a contradiction for the rule of law. For Fraser, this merely demonstrates the inherent flexibility of rule of law reasoning and rhetoric and the system’s ability to escape its own internal contradictions (pp.327-328). Law paid respect to itself but did not necessarily afford justice to the victims of the Holocaust (p.336).

Fraser has certainly undertaken quite a task in his survey and analysis of an enormously diverse range of materials. One issue which might have been considered a little further is to what extent de-nazification proceedings informed his work. Consideration of post-war interviews with lawyers or judges may have revealed their understanding of Nazi law as legal/not-legal. Perhaps this query is answered by the fact that many returned to the legal profession and continued to do their jobs as usual, not being required to do anything else.

Fraser occasionally overstates his points. For example, in analysing recent medical practices, Fraser asserts that “Post-Nuremberg international treaties, human rights consciousness, genocide conventions do nothing” (p.421). Nevertheless, a thought-provoking work, it will be useful reading for scholars from a variety of disciplines. The questions posited return perennially in differing contexts – are there legal black-holes (e.g Guantanamo Bay)? To whom do nationals of a State owe their primary allegiance (e.g affair de foulards)? Can immigration controls viably protect a State’s body politic? Legal theorists, sociologists, political scientists, and those interested in construction of national consciousness or the deployment of rhetoric and semiotics to [*586] elide the line between law and politics, will find something of interest. Law’s place in the fascist’s toolbox is an eternal conundrum, and the notion of a continuum between the Nazi regime and today’s regulatory system of power is particularly troubling.

REFERENCES:

Bass, Gary. 2000. STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS. Princeton: Princeton University Press.

Bosch, William 1970. JUDGMENT ON NUREMBERG: AMERICAN ATTITUDES TOWARD THE MAJOR GERMAN WAR-CRIME TRIALS. Chapel Hill: University of North Carolina Press.

Cunneen, Chris, David Fraser and Stephen Tomsen (eds). 1997. FACES OF HATE: HATE CRIME IN AUSTRALIA. Annandale, NSW: Federation Press.

Finkielkraut, Alain. 1992. REMEMBERING IN VAIN: THE KLAUS BARBIE TRIAL AND CRIMES AGAINST HUMANITY. (Roxanne Lapidus and Sima Godfrey, trans.). New York, Oxford: Columbia University Press.

Goldhagen, Daniel Jonah. 1996. HITLER’S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE HOLOCAUST. New York: Knopf.

Koskenniemi, Martti. 2004. “‘By Their Acts You Shall Know Them . . .’ (And Not by Their Legal Theories)” 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 839-851.

Weisberg, Richard H. 1996. VICHY LAW AND THE HOLOCAUST IN FRANCE. Amsterdam: Harwood Academic Publishers.

CASE REFERENCE:

R. v. FINTA [1994] 1 S.C.R. 701.



© Copyright 2005 by the author, Thérèse O’Donnell.

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THE SUPREME COURT UNDER EARL WARREN, 1953-1969

by Michal R. Belknap. Columbia: University of South Carolina Press, 2005. 432pp. Cloth. $49.95. ISBN: 1-57003-563-6.

Reviewed by Richard L. Pacelle, Jr., Department of Political Science, Georgia Southern University. Email rpacelle@georgiasouthern.edu .

pp.577-580

The legacy of the Warren Court has been well-chronicled with dozens of studies bookended by Bernard Schwartz’s (1983) classic SUPER CHIEF and Lucas Powe’s (2000) soon to be classic THE WARREN COURT AND AMERICAN POLITICS. In addition, we have biographies of many of Warren’s colleagues, and more are certain to follow as scholars mine the papers of the justices. Now, Michal Belknap has authored another volume to add to the shelf. It is fair to ask if we need another book about the Warren Court. On the narrowest ground, the book was necessary. The University of South Carolina Press has a series on the stewardships of the various Chief Justices, and this is the seventh volume in that series. On the broader level, the author bears the burden of answering what this book adds to justify its publication. Belknap bases his analysis on more original sources than Schwartz had available, but it is less ambitious in scope than Powe’s study.

Belknap provides, as the good luck adage for a bride recommends, something old, something new, something borrowed, and something blue (the discussion of the obscenity decisions, perhaps). Much of what Belknap writes is well-known, although there are interesting side details that enhance the review: Earl Warren comes to the Court from the political realm and has to shepherd a group of strong-willed justices, some brilliant, others much less so. He grows into the office, but his true success comes after the retirement of Felix Frankfurter. Belknap argues (as others have) that his exodus really created what we think of as “the Warren Court.” The substitution of Arthur Goldberg for Frankfurter would have made a difference, just because of the tenuous balance on the Court, but the vacuum of Frankfurter’s leadership (both negative and positive) ushered in the activist Warren Court.

In addition to further insights into the dynamics of the Warren Court and the battles over legal perspective, the new material includes the argument that the decisions of the Warren Court were much more in the mainstream politically than we have come to believe. This seems at odds with the vitriolic opposition that the Court faced over its decisions, and the author concedes that it all but evaporated as the Warren Court evolved. Belknap also examines the Court’s work on taxation cases, abstention doctrine, and second generation ERIE cases, topics seldom considered in deference to the dominant civil liberties and civil rights agenda.

The book is a forceful reminder that, while many pay homage to the attitudinal model and others at least concede that attitudes are the most [*578] important determinant of Supreme Court decision making, the votes of the justices alone are not enough to understand the complexities of decisions. Belknap reveals important constitutional and philosophical divisions between justices whose final votes appear in the official opinion to be the same. This is particularly important to underline because many of these justices were willing to read their sincere preferences into the law and bend the provisions of the Constitution to do so. Even on a Court that most would concede was dominated by the attitudinal model, there were important gradations in reasoning and opinions. The significance is magnified by the fact that these justices were in the process of implementing a revolution, particularly in the creation of a constitutional right to privacy, rights of association, the protection of art, and finding libel law in the First Amendment.

Belknap writes more openly of bargaining among the justices and threats to pull votes and write concurring or dissenting opinions than most previous studies of the Warren Court. Perhaps most interesting is the number of times justices would pass before casting a vote and the number of cases that were held over for re-argument. One gets a real sense of the type of group dynamics that Walter Murphy (1964) wrote about a generation ago and Maltzman, Spriggs, and Wahlbeck (2000) have recently revisited. The strategic model of decision making gets support from the early and very late tentativeness of the Warren Court and its retreat in the face of Congressional opposition on some issues.

In the first edition of THE END OF LIBERALISM, Theodore Lowi (1969) conceptualizes the justices as modern theorists, hammering out their visions of the Constitution and the good republic. Belknap provides a rich discussion of the conferences and the evolution of opinions that support Lowi’s view. We are also reminded that many of the new chief’s colleagues had come to the bench just after the judicial activism of the 1930s had exposed the Supreme Court to political reprisal, coloring their views of judicial power.

The book is not without a few problems. Due to its organization, it is redundant in places. The book is organized topically for the most part. But for cases that cross issue boundaries (and a number do) and for those chapters that are organized temporally, the discussion of some cases, the surrounding environment, and intra-Court dynamics have to be repeated. There is a substantive cost to this, as well: the occasional loss of the broader context. For instance, Belknap tells us that Hugo Black had migrated from the left of the Court to perhaps right of center in a couple of issue areas. But we never get a full appreciation why: is it that the Court moved and he basically stayed still; did he get more conservative as he aged; or did the cases get more difficult? There is also the failure to address a major criticism that Black and William O. Douglas had for their brethren regarding the Court’s inconsistency between the colors black and red. While the Court fashioned wholly new doctrine to create a constitutional right to freedom of association to protect African Americans, it was unwilling to do so, until much later, for those alleged to be Communist sympathizers. In addition, [*579] although Belknap does a good job of placing the advances in association and libel law in the broader context of attempts of the Warren Court to protect civil rights, he fails to add the monumental criminal procedure landmarks to that list. The American Civil Liberties Union felt that incorporation of large parts of the Bill of Rights to the states in the 1960s was its primary contribution to the civil rights movement (Walker 1990). But these concerns should not distract from a strong study that has added some new perspectives on the Warren Court.

Ultimately, Belknap argues that the Warren revolution was strictly a legal one. He concedes that the reapportionment decisions did not help the intended beneficiaries, BROWN and its progeny did not create equality, police have flaunted MAPP and MIRANDA, and that many other decisions galvanized conservatives. Still the Warren Court legitimated activism, created a new rights consciousness, transformed American legal culture, and created a precedent for using courts for social reform. Whether the Burger Court was more liberal than the Warren Court (Maltz 2000) and the Rehnquist Court is the most activist tribunal in history (Keck 2004) are debatable propositions, but they demonstrate that the genie the Warren Court released cannot be put back in the bottle. In the end, it is clear that Professor Belknap has met the burden and the answer to the question posed at the beginning is clearly yes.

REFERENCES:

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

Lowi, Theodore. 1969. THE END OF LIBERALISM. New York: W.W. Norton.

Maltz, Earl. 2000. THE CHIEF JUSTICESHIP OF WARREN BURGER, 1969-1986. Columbia: University of South Carolina Press.

Maltzman, Forrest; James Spriggs, and Paul Wahlbeck. 2000. CREATING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. New York: Cambridge University Press.

Murphy, Walter. 1964. ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press.

Powe, Lucas 2000. THE WARREN COURT AND AMERICAN POLITICS. Cambridge: Bellknap Press.

Schwartz, Bernard. 1983. SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT—A JUDICIAL BIOGRAPHY. New York: New York University Press.

Walker, Samuel. 1990. IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU. New York: Oxford University Press.

CASE REFERENCES:

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

ERIE v. TOMPKINS RAILROAD, 304 US 64 (1938).

MAPP v. OHIO, 367 US 643 (1961). [*580]

MIRANDA v. ARIZONA, 384 US 436 (1965).



© Copyright 2005 by the author, Richard L. Pacelle, Jr.

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PRESIDENTIAL POWERS

by Harold J. Krent. New York and London: New York University Press, 2005. 288pp. Cloth $45.00. ISBN: 0-8147-4782-5.

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: podehnel@augustana.edu .

pp.572-576

PRESIDENTIAL POWERS by Harold Krent is a thorough survey of Article II of the United States Constitution. The book could be titled “Executive Power,” because it is about the formal powers vested in the President by Article II; informal powers are mentioned incidentally. PRESIDENTIAL POWERS is thorough, but it is concise and readable enough to serve as a supplement in constitutional law courses. While little new ground is broken in terms of research, the book makes a useful contribution to the discussion of several issues.

The book is organized into five substantive chapters. The first, and longest, is on the president’s general power to execute laws passed by Congress. This includes sections on delegation of power by Congress, appointment and removal of executive officials, presidential control of administrative rule making, and supervision of agency litigation. The chapter on foreign affairs covers the treaty power and the war power. The third chapter covers emergency powers in a domestic context. The fourth examines executive privilege and presidential immunity from suit. The book concludes with a chapter on the pardon power.

Krent takes a legal approach to his subject, setting out to resolve contemporary issues of presidential power by considering “the text, the structure of the Constitution, any judicial precedents, and history” (p.3). The approach to legal analysis is flexible and frankly based on value judgments. As Krent notes, Article II vests executive power in the president but does not define it. Several important specific powers are granted, but conflicting authority is often allocated to Congress. Some significant matters, such as the removal of appointed officials, are left open. Interpretation of Article II is further complicated by two centuries of variable practice that, Krent acknowledges, is sometimes “quite difficult to reconcile with constitutional text and structure” (p.3). To bring some coherence to the analysis of these open ended sources of legal doctrine, Krent emphasizes three basic values that must be balanced when assessing presidential power: presidential initiative, presidential accountability to Congressional policymaking, and presidential accountability to the public. Article II must be interpreted so that the President is effective but accountable in serving the public and enforcing the law.

Krent typically begins his analysis of an issue by looking for an historical consensus on the minimum and maximum boundaries of presidential power. He then seeks to fill in the gaps with a reasoned analysis of the competing values of effectiveness and accountability. These values are broad, [*573] but they serve well as organizing concepts for a book that could otherwise get bogged down in the details of specific disputes. As Krent acknowledges, his value balancing scheme does not provide answers to concrete questions (p.6). The strength of the scheme is its applicability across issues and historical contexts, not its precision and clarity.

Krent’s discussion of the power to remove federal officials is a good example of his method. Article II is silent on the matter. Despite Alexander Hamilton’s contrary assertion in the FEDERALIST PAPERS, historical practice established that presidents could remove executive officials without the advice and consent of the Senate. This was vindicated by the Supreme Court in MYERS (1926). An unfettered removal power enhances presidential initiative and clarifies presidential accountability for administrative action, but it may empower the president to ignore, or at least distort, congressional policymaking. Therefore, Krent defends the right of Congress to place limits on the president’s power by specifying that removal be for cause only, as sustained by the Court in HUMPHREY’S EXECUTOR (1935) and MORRISON v. OLSON (1988). Krent prefers the balancing approach in MORRISON to the awkward functional distinction made in HUMPHREY’S EXECUTOR. While conditions can be placed on the removal power, Congress cannot go so far as to reserve the power of removal to itself (see BOWSHER v. SYNAR (1986)). The remaining open question is just how much discretion should be left in the hands of the president. This, Krent concludes, must be resolved by balancing the competing values of presidential initiative and accountability to Congress.

In his chapter on emergency power, Krent’s balancing model produces an analysis very similar to that advocated by former Supreme Court Justice Robert Jackson. Like Jackson, Krent acknowledges that presidential initiative must be primary in a time of emergency, and political checks are more likely to constrain assertions of emergency power than legal ones. Still, crisis conditions do not authorize the president to ignore Congress if it has asserted itself (YOUNGSTOWN SHEET AND TUBE (1952), Jackson, J., concurring). With respect to the role of the Courts, Krent endorses the position Jackson advocated in dissent in KOREMATSU (1944). Extra-legal action may be justified, and probably will be politically tolerated, during an emergency, but the president should not ask the courts to place a legal seal of approval on such action. If asked, the courts are justified in refusing to comply, though they usually do not. The Jackson-Krent position allows the needed presidential initiative (checked by accountability to the public) in the face of emergency, while preserving as much of Congress’s policy making role as possible.

As can be said of much of the book, Krent’s discussions of the removal power and emergency power are more notable for clarification and synthesis than for breaking new ground. The book’s unique contribution may lie in its careful analysis of some issues that are often overlooked. These include discussions of the appointment of inferior officers, supervision of agency litigation, conditional approval of [*574] treaties by Congress, and the attaching of conditions to pardons.

The synthetic value of the book is well illustrated in the chapter on the power of the president to execute laws passed by Congress. The analysis is carefully knit together, creating a clear sense of the interconnections between such issues as appointment, removal, control of agency rule making and supervision of agency litigation. My main criticism of this chapter is that it fails to distinguish between acts of Congress that delegate legislative power and those that authorize executive action. Krent overuses the term delegation, employing it to refer to any act of Congress upon which legal action can be based (see especially pp.69-77). While the difference between policy making and administrative discretion is hard to define at the margins, certainly there is a difference between rule making and rule enforcement. The Constitution vests executive power in the president, and this makes congressional meddling in administrative matters suspect. The delegation by Congress of legislative power to various actors inside and outside of government is also suspect, but for different reasons. Delegation of legislative power has been accepted in practice in the last century, and this has changed the dynamic of legislative-executive relations. Encroachments on presidential power, such as independent agencies and legislative vetoes, can be understood as defensive reactions to the flow of power to the executive branch. Krent’s broad use of the term, “delegation,” tends to obfuscate the import of these developments.

While Krent’s framework of three competing values is a success, I have one modest criticism. His emphasis on presidential initiative, congressional policymaking and accountability to the public leaves out bureaucratic professionalism, a possible fourth value. Although the tradition of an independent bureaucracy may be weaker in the United States than elsewhere, it is nonetheless a significant theme in our political development. The founders, perhaps unsuccessfully, sought an ideal of non-partisan administration. The triumph of democratic accountability in the early nineteenth century eventually provoked a campaign for civil service reform. During the Progressive Era, the desire to elevate professional expertise in the policy process produced the independent regulatory commission.

Bureaucratic independence and professionalism cannot be subsumed under either presidential initiative or accountability to congressional policy making. In different circumstances it may be supported or weakened by either one. Bureaucratic independence comes into Krent’s discussion mainly as a goal of congressional policy making, as in the creation of independent regulatory commissions and the assignment of independent litigation authority. But the motives of Congress vary, and congressional pressure is quite capable of undermining bureaucratic independence. At times, presidents defend agencies from parochial interests. Bureaucratic professionalism could be seen as an independent consideration with respect to issues such as the appointment of inferior officers, removal power, supervision of agency rulemaking, and assignment of litigation authority. [*575]

I will conclude this review with a general comment, from the point of view of a political scientist, on Krent’s approach to this topic as a legal scholar. Krent’s eclectic handling of legal materials is appealing, but it sometimes results in an awkward combination of analytical and normative voices. This language may be more comfortable to lawyers than political scientists. The book is full of normative judgments as to how the Constitution should be interpreted, and in part these judgments are based on how that document has been interpreted. Krent is aware of this circularity, noting that “historical exercise of particular authorities does not by itself preclude questions as to the constitutionality of prior practice.” He concludes, nonetheless, that “historical practice influences contemporary interpretation of Article II, for each president builds on the contemporary understanding of presidential powers when assuming office” (p.3). I do not object to the critically selective use of history as a normative standard, but I do question an analysis that seems to conflate contemporary presidential practice with the interpretive enterprise of the scholar. How contemporary presidents will respond to their political environment is a different question than the one addressed in Krent’s book. The same can be said for Supreme Court responses to issues of executive power. Krent’s conclusions about how particular issues should be resolved are not predictions as to how the Supreme Court would decide them, though they are sometimes made to sound that way.

As a political scientist, I would prefer that a clearer distinction be maintained between academic assessment of an open question of constitutional law and the actual resolution of the question in the courts or elsewhere in the political process. Krent’s analysis is, appropriately, replete with historical examples, and he brings the theories and rationalizations of the participants in the cases into his analysis. This has a tendency to belie the fact that constitutional practice is the product of political conflict and maneuver, rather than an academic seminar. This is not to say that Krent ignores political reality or is naïve in his assessment of personal motivation. The difficulty with his approach is that it obscures the difference between using history as a body of experience from which to draw wisdom and using it as a body of data from which to discern trends and patterns.

Krent’s use of history is normative, not explanatory. Although much of the book turns on legislative-executive relations, he says little about the changing patterns of institutional interaction over time. The book cites many historical examples but does so in a way that assumes a degree of continuity that has been challenged by political scientists (e.g., Lowi 1979; 1985). In saying this, I do not fault Krent for writing the book he has written, but ask if he might have been clearer about the kind of book it is.

Despite these reservations, I found the book informative and helpful for clarifying my thinking about executive power issues. It is well structured and well documented. I found very few errors. (The author does misuse the term “senatorial courtesy” (p.25), and he puts Ronald Reagan on the wrong side of the Nicaragua conflict (p.88).) The book should prove useful for both legal [*576] scholars and social scientists interested in executive power.

REFERENCES:

Lowi, Theodore. 1979. THE END OF LIBERALISM. New York: Norton.

Lowi, Theodore. 1985. THE PERSONAL PRESIDENT. Ithaca: Cornell University Press.

CASE REFERENCES:

BOWSHER v. SYNAR, 478 US 714 (1986).

HUMPREY’S EXECUTOR v. UNITED STATES, 295 U.S. 602 (1935).

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

MORRISON v. OLSON, 487 U.S. 654 (1988).

MYERS v. UNITED STATES, 272 U.S. 52 (1926).

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



© Copyright 2005 by the author, David Dehnel.

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SURVIVING RUSSIAN PRISONS: PUNISHMENT, ECONOMY AND POLITICS IN TRANSITION

by Laura Piacentini. Portland, OR: Willan Publishing, 2004. 240pp. Hardback. £35.00 / $64.95. ISBN: 1-84392-103-0.

Reviewed by Kathryn Hendley, Department of Political Science and Law School, University of Wisconsin-Madison. Email: khendley@wisc.edu .

pp.568-571

Russian prisons have long been a “black box” for Western social scientists. For the most part, our primary sources have been limited to prison memoirs and official reports, both of which inevitably tell only part of the story. In SURVIVING RUSSIAN PRISONS: PUNISHMENT, ECONOMY AND POLITICS IN TRANSITION, Laura Piacentini fills in many of the gaps. Thanks to her courageous and inventive field work in prisons in Smolensk and Omsk, we are treated to more of an objective insider’s view of Russian prisons than previously available. As she acknowledges, the picture is still not complete. Two prisons cannot possibly tell the story of an entire system, particularly in an era in which centralized control was dissipated. Indeed, one of the most important insights of her book is the individuation of prisons in the post-Soviet era as each fashions its own strategy of survival through turbulent economic times.

As a student of post-Soviet Russia, I found the most compelling portion of the book to be the two case studies. After documenting the breakdown of the Soviet penal identity in the early 1990s, Piacentini traces the choices made by prison officials in Smolensk and Omsk. In Smolensk, for example, the goal of imprisonment has become rehabilitation rather than punishment. These goals were shared by prisoners and staff alike. In a remarkable move away from the Marxist-Leninist ideology, which saw prisoners as social deviants, prison officials now take a psychological approach, seeking to understand what drove the prisoners to crime and to engage in character reform during their incarceration. They endeavor to enhance prisoners’ self-awareness in order to make them productive members of society. Their methods include both psychological testing and counseling as well as religious training. Forced labor has no place in this world and, not surprisingly, the percentage of the prison population so engaged has declined from a firm 100 percent before 1994 to less than one-half. Prisoners describe the work space as “depressing” and “crumbling” (pp.58-59). Vocational training, however, would complement the effort at rehabilitation. But the economic realities of the 1990s, during which Russia experienced a profound economic depression that was magnified in the manufacturing sector, mostly eliminated such opportunities.

Prison officials in Omsk have taken a different path. Rather than character reform, they are concerned with social reform. Piacentini reports more of a nostalgia for the Soviet past in Omsk than in Smolensk. This reflects a yearning for the stability and predictability that characterized those decades. Within the prison, officials [*569] tried to rebuild the social cohesiveness that they felt had been lost with the breakup of the Soviet Union. Labor remains an integral part of prison life in Omsk. A majority of prisoners work regularly, though the purpose behind work has changed since the Soviet era. No longer is it a form of slave labor; nor is it necessary to sustain the Russian economy. In the words of the head of educational training, “it is about providing prisoners with a window to the outside world. These goods [being manufactured] can be found in the home. I think that prisoners need to be reminded of home when they are here, to minimise any future problems to do with adjustment” (p.71). To this end, Omsk has created a network of Community Liaison Partnerships that allow prisoners to work in the community. Just as in her analysis of Smolensk, Piacentini weaves the prison ideology together with the economic realities. These community partnerships not only help prisoners’ readjustment, but also provide a much-needed source of income for the prison. Likewise the continued vibrancy of prison industry is tied to the needs of the local community.

Piacentini convincingly argues that rehabilitation motivates both sets of prison officials. But she is able to go deeper and to document how remarkably different means can be used to pursue this ostensibly similar goal. The breakdown of staff specializations in the two prisons, summarized in tabular form, crystallize the differences beautifully. We need only compare the priorities placed on those with industrial expertise as opposed to those with psychological expertise. Omsk’s staff is dominated by those engaged in industry. In the strict regime facility, it employs 248 on its industrial staff, compared to only 12 on its psychology staff. By comparison, the Smolensk strict regime facility employs 85 on its industrial staff and 45 on its psychology staff (p.81). Throughout the book, she wisely supplements the revealing thick descriptions that her interviewing and observations have yielded with tables that provide snapshots of her respondents’ attitudes.

The collapse of the Soviet Union resulted in the virtual abandonment of prisons by the central government. During the 1990s, the Kremlin’s funding for prisons dropped precipitously, just as it did for all social obligations. The officials whom Piacentini interviewed spoke passionately about the unusual challenges of this period. As one senior official told her, “Every day, I worry about finding ways to ensure that my prisoners eat the recommended bread allowance” (p.127). Another remarked, “It is about survival. Having decided not to send us money and having decided not to provide resources for prisoners and staff, the state has left us with no option but to seek help from families and businesses” (p.129). Officials responded by trying to make do with what they had. To this end, they worked with local businesses to establish mutually beneficial barter networks. Piacentini is no doubt right that neither of these prisons would have survived the 1990s without barter. The analysis would have been even more persuasive had she placed it in a broader context. Resorting to barter as a survival strategy was hardly limited to prisons. It became commonplace for Russian industry more generally, as managers learned to survive in a largely cash-free environment. To her credit, Piacentini [*570] notes the widespread nature of poverty, but fails to integrate this into her otherwise superb discussion of the role of barter. I would also have welcomed an updating of the story. The use of barter has receded considerably in recent years in industry, and I would like to know whether this trend has been mirrored in the prison sector as well.

Piacentini’s forthright discussion of how she organized the fieldwork should be read by all who are preparing for fieldwork in Russia or any other transition setting. All too often scholars gloss over the “how” question. Piacentini does not. She takes the reader along the byzantine path by which she found herself inside two Russian prisons. I particularly respect her willingness to share her creative strategies for building trust with the prison officials and her candor as to the difficulties posed by her age and gender. Other young women who are embarking on challenging field work can take heart from her perseverance and ultimate success. She deserves praise for sharing the bad with the good. She consistently acknowledges that the restrictions placed on her access by the authorities – particularly their reluctance to allow her to talk with prisoners – limit her ability to draw conclusions. As someone who has been doing field work in Russian legal institutions for over a decade, I came away from the book with tremendous admiration for Piacentini.

One disappointment in the book is the failure to address the decisions of the European Court of Human Rights dealing with Russia’s prison conditions. To be sure, these decisions came after her field work. The most well-known case, KALASHNIKOV v. RUSSIA, was decided in 2002. But Piacentini’s discussion of the impact of Western human rights on the discourse and behavior of the Russian government does continue on into the present-day. Given her emphasis on the potentially positive role that Russia’s membership in the Council of Europe can have on its prison policy, the choice not to discuss the ECHR is odd. In the KALASHNIKOV case, as well as in others, the ECHR has been extraordinarily critical of the condition of Russia’s prisons. Yet we know little about the aftermath of such decisions—i.e., whether the government has taken any action to implement the decision. Piacentini would be uniquely positioned to comment on this question. Likewise, I was surprised by her lack of attention to health conditions within the prisons she studied. She acknowledges that “[c]ritics have argued that TB in the early 1990s was 17 times higher in Russian prisons than in wider society” (p.48), but does not report on the TB rate in the Smolensk of Omsk prisons.

Those interested in Russian law and politics will find much to engage them in SURVIVING RUSSIAN PRISONS. After reading this book, I now realize the perils of generalizing about Russian prisons. Her analysis of these two institutions shows that, in the post-Soviet era, prisons have become highly individuated. I hope that others will build on her pathbreaking work to fill in the gaps of our knowledge about prisons in Russia. Those without any background on Russia should not be wary of the book. Piacentini does a superb job of setting the stage by summarizing the Soviet experience, building on the wealth of existing literature on the GULAG. Students of [*571] prisons more generally will find a wealth of information. Piacentini is trained as a criminologist and it shows. Not sharing this background, I cannot speak to the novelty of her theoretical contributions in this field. But I can confirm that she actively engages the literature and uses it productively to compare Russia’s experience to that of other transition countries, such as Northern Ireland and South Africa.

CASE REFERENCE:

KALASHNIKOV v. RUSSIA (47095/99) [2002] ECHR 591 (15 July 2002).



© Copyright 2005 by the author, Kathryn Hendley.

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THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (2nd ed.)

by Mark V. Tushnet. Chapel Hill: University of North Carolina Press, 2005. 264pp. Paper. $17.95. ISBN: 0-8078-5595-2.

Reviewed By Scott Lemieux, Department of Political Science, Hunter College, CUNY. Email: slemieux@hunter.cuny.edu .

pp.563-567

The 50th anniversary of the great school desegregation case BROWN v. BOARD OF EDUCATION in 2004 saw the culmination of a series of fine books examining the background, impact and legacy of the landmark decision. These books include Kevin McMahon’s RECONSIDERING ROOSEVELT ON RACE, James Patterson’s BROWN v. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TANGLED LEGACY, Charles Ogletree’s ALL DELIBERATE SPEED, and Michael Klarman’s superb FROM JIM CROW TO CIVIL RIGHTS. In addition to these new books, two important ones have been reissued with new epilogues assessing BROWN: Richard Kluger’s SIMPLE JUSTICE, and a book that in some ways represents a counternarrative to Kluger, Mark Tushnet’s THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION. Tushnet—also the author of a masterly two-volume historical biography of Thurgood Marshall that is essential reading for anybody with an interest in BROWN and its aftermath—focuses on the litigation strategy of the NAACP and its Legal Defense Fund (LDF) as it attempted to challenge segregated educational systems in the quarter century prior to BROWN (Tushnet 1994; 1997) Although authors, such as Kluger, have generally presented the litigation leading to BROWN as part of a framework of coherent, carefully planned strategic choices by the NAACP, Tushnet emphasizes the conflicts and challenges the group faced as it attempted to undermine and overturn the “separate but equal” education sanctioned by the Supreme Court in PLESSY v. FERGUSON.

THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION begins with a grant given to the NAACP by the Garland Fund, which enabled the organization to conceive of and execute an attack on segregation through litigation. Litigation, Tushnet reminds us on more than one occasion, “is a social process,” and in keeping with this premise he then traces the development of this attack through a combination of historical detail, the broader political and economic context, and doctrinal analysis. The internal conflicts that affected the development of the NAACP’s attack on Jim Crow laws are evident from the very beginning. The chief administrator of the Garland Fund, Roger Baldwin, believed that “the law was to be used instrumentally and defensively” (p.4). This caused conflicts with the NAACP, whose leadership leaned toward what Tushnet calls “autonomous legalism,” the belief that legal norms, “at least occasionally,” could be used to remedy racial segregation (p.11). The NAACP [*564] eventually received a grant to pursue an attack through litigation (ironically, without the support of Baldwin, who voted against the NAACP’s grant proposals), although the grant was ultimately much less than the NAACP anticipated and required a plan that was much more truncated than its original plan. As the NAACP went forward with its three-pronged attack—filing suits, in chronological order—against segregated higher education, to equalize teacher salaries, and finally against primary and secondary education—the development of its litigation strategy was shaped by a fundamental paradox.

Tushnet convincingly argues that there are two crucial necessities for a successful litigation campaign: an intelligent general litigation strategy, and local support. On one hand, the fact that local support is critical for the success of litigation mitigates some of the ethical and democratic concerns that litigation used to produce social change can raise; although a group is theoretically able to launch a litigation campaign that is contrary to the interests of the plaintiffs and the majority of the community it seeks to represent, such litigation is likely to be ineffectual. Tushnet’s findings, which repudiate the common conception of litigation as a zero-sum conflict between litigation and other forms of democratic politics, anticipate the later insights of the literature on legal mobilization (e.g., Merry 1990; McCann 1994; Epp 1998). On the other hand, however, dependence on local support necessarily undermines the development of a coherent, centralized litigation strategy, and leaves litigators at the mercy of local contingencies. For example, “[u]niversity desegregation was thwarted in North Carolina by the strength of the accomodationist elements there, and the opposition of the Wichita teachers to the direct attack forced the NAACP to shift its attention to Topeka” (p.147). The need for local support shaped strategy as well as tactics; the NAACP chose to attack segregation in higher education first largely because it was much easier to find willing plaintiffs. While any successful litigation campaign requires some measure of control by savvy litigators, on some level litigation is always an ad hoc enterprise, requiring flexibility and the ability to take advantage of unanticipated problems (and not to be unduly damaged by inevitable setbacks.) The effects of local impact were amplified, Tushnet argues, by the personal characteristics of Charles Hamilton Houston, who was the NAACP’s special counsel throughout much of this period. Houston was “more comfortable with pinpoint activities, frequently responsive more to the demands of the moment than those of the plans” (p.35). His successor, Thurgood Marshall, did tend to have a broader strategic vision—engineering, for example, a significant delay before beginning a direct attack on segregation. But the purpose of this delay was to mobilize sufficient support to make the attack more viable.

Tushnet’s process-based account has a number of virtues. First, he avoids the trap of making the outcome of particular actions seem intentional and inevitable after the fact. Unlike scholars who focus more specifically on Brown and a few other Supreme Court landmarks, Tushnet both details the false starts and dead ends that accompanied more successful litigation and demonstrates that many of the cases that became [*565] crucial precedents did not seem particularly important at the time. Second, he is able to capture the complexity and contradictions within organizations that it is tempting to see as unified. The NAACP both had its share of internal conflicts and also had its approach to litigation shaped by (and, in turn, had its own impact on) local communities upon which it was dependent for plaintiffs and political and financial support. Finally, Tushnet is attentive to important external factors, while avoiding excessive structural determinism. Individuals and particular local circumstances, as well as broader political and economic forces, matter. As Tushnet argues convincingly, although the Great Migration, the cold war and the increasing support of the NAACP’s positions by the executive branch all made successful litigation more likely, they did not make it inevitable. As previously noted, the leadership of Charles Houston and Thurgood Marshall, in particular, was crucial to overcoming the paradox of requiring both strategic vision and local control: “Both Houston and Marshall,” Tushnet notes, “had enormous ability at the essential, and fundamentally political, task of coordinating the interests of the various constituencies that the NAACP’s litigation had to satisfy” (p.157). Not all groups will be similarly well-situated to take advantage of opportunities presented by structural changes.

The new edition of THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION contains a freshly written assessment of the ultimate effects of BROWN that builds on some of the speculations in the original conclusion. The first part of the epilogue discusses the recent scholarship on BROWN’s impact, beginning with Gerald Rosenberg’s argument in his seminal book, THE HOLLOW HOPE, that the impact of BROWN has been greatly overstated. Tushnet accepts two of Rosenberg’s major claims: that BROWN had virtually no direct effect on desegregation in the Deep South (or race relations more broadly), and that judicial decisions in and of themselves are unlikely to generate social change. Like many of the scholars who have built upon and critiqued Rosenberg’s work, Tushnet is considerably more skeptical of Rosenberg’s treatment of BROWN and later civil rights legislation as essentially independent events, as well as the ways in which Rosenberg measures the indirect effects of BROWN (see e.g., Simon 1992; McCann 1996; Schultz 1998).

This section of the Epilogue is a useful summary of the literature on the subjects, although his conclusions are, while persuasive, not particularly novel. The more original contribution of the new chapter is Tushnet’s connection of the literature on the impact of BROWN to his recent work on “constitutional orders” (2003). Tushnet argues that constitutionalism goes beyond judicial doctrine but is also connected to political regimes more broadly. A crucial effect of the NAACP’s litigation, then, was to facilitate the consolidation of the New Deal/Great Society coalition, while slowly undermining the conservative southern Democrats who opposed many of its guiding principles. The fact that the NAACP’s litigation became connected to the governing regime, Tushnet argues, explains why early successes in fields such as welfare rights and death penalty litigation failed to [*566] achieve the same kind of success as earlier civil rights litigation, and also explains why the impact of Brown itself was ultimately blunted, after the governing coalition lost power. In addition, Tushnet points out that the relatively successful liberal litigation of the Warren Court era played a role in the ultimate fracture of the New Deal/Great Society coalition by speeding the peeling off of both southern and northern whites by the Republican Party. The use of constitutional orders represents a promising way of studying the political impact of litigation and courts.

Despite the book’s complex historical narrative, it is persuasively and rigorously argued, containing many shrewd insights and raising few quibbles. Indeed, admirers of Tushnet’s subsequent work may miss his bold, counterintuitive (but often surprisingly persuasive) claims, such as his argument that the Court would have likely overturned PLESSY even had Chief Justice Vinson not been replaced by Earl Warren (1994, ch.13), or his argument that Clarence Thomas’s jurisprudence is much more unique and substantively interesting than that of Antonin Scalia (2005, chs.3, 5.) Even if a reader disagrees with Tushnet’s most proactive claims, they can alter and deepen one’s thinking about the subject at hand. The closest THE NAACP’s LEGAL STRATEGY comes to a similar moment is his discussion in the Conclusion about W.E.B. Dubois’ misgivings about the project of challenging segregation in the context of structural racism as well as the use of litigation more broadly. Tushnet expresses a measure of sympathy for these arguments, but the discussion is not well-developed and also suffers from situating the Dubois arguments within a dichotomy between “competitive individualism” and a potential “communitarian legal strategy.” While the “liberalism/communitarianism” debate among political theorists was extremely active at the time of the book’s original publication, the limitations of this framework have since become manifest, and as a result this discussion is not likely to change one’s perspective on the extremely difficult underlying issues. The value of this book, rather, resides more in filling important gaps in historical knowledge and in its insights about the nature of political litigation. These, of course, are considerable achievements, and anyone interested in civil rights, interest group mobilization and/or the relationship between litigation and social change will benefit greatly from reading this book.

REFERENCES:

Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.

Klarman, Michael J. 2004. FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY. New York: Oxford University Press.

Kluger, Richard. 2004. SIMPLE JUSTICE. (Rev. and expanded ed.). New York: Knopf.

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press. [*567]

McCann, Michael W. 1996. “Causal vs. Constitutive Explanations (Or: On the Difficulty of Being So Positive…).” 21 LAW AND SOCIAL INQUIRY 457-482.

Merry Sally E. 1990. GETTING JUSTICE AND GETTING EVEN. Chicago: University of Chicago Press.

Ogletree, Charles J. 2004. ALL DELIBERATE SPEED. New York: W.W. Norton.

Patterson, James T. 2002. BROWN v. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY. New York: Oxford University Press.

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

Schultz, David A. 1998. LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang.

Simon, Jon F. 1992. “The Long Walk Home to Politics.” 26 LAW AND SOCIETY REVIEW 923-941.

Tushnet, Mark V. 1994. MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961. New York: Oxford University Press.

Tushnet, Mark V. 1997. MAKING CONSTITUTIONAL LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1961-1991. New York: Oxford University Press.

Tushnet, Mark V. 2003. THE NEW CONSTITUTIONAL ORDER. Princeton: Princeton University Press.

Tushnet, Mark V. 2005. A COURT DIVIDED. New York: Norton.



© Copyright 2005 by the author, Scott Lemieux.

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SOVEREIGNTY, COLONIALISM, AND THE FUTURE OF THE INDIGENOUS NATIONS

by Robert Odawi Porter. Durham, NC: Carolina Academic Press, 2004. 816pp. Paper. $75.00. ISBN: 0-89089-333-0.

Reviewed by Catherine Lane West-Newman, Department of Sociology, University of Auckland, New Zealand. Email: l.westnewman@auckland.ac.nz .

pp.560-562

SOVEREIGNTY, COLONIALISM, AND THE FUTURE OF THE INDIGENOUS NATIONS has a clear purpose: to be a resource in teaching respect for the law and sovereignty of Indigenous nations. It is an educational tool for “preserving for Indigenous Peoples the right to decide for themselves such things as the applicability of American law to their lives” (Porter 2003-4:1631).

Although the book consists almost entirely of secondary material, the imprint of the author/editor is everywhere in this extensive collection, whose purpose is specific, and clearly articulated at the outset. If you are faintly daunted by the size – 816 pages – and wondering if you really want to go there, then begin with the three page section headed “The Purpose of This Book.” If you are looking for specific information, then turn to the index of broad headings and extensive page references. Primarily, though, this is a reader that brings together a wide range of documents, presented in three sections dealing respectively with conceptions of, threats to, and the realization/strengthening of indigenous sovereignty. The materials are chosen to encourage student inquiry and discussion and include speeches, testimony, policy statements, legal cases, statutes, newspaper reports, and scholarly analysis. Each section is introduced with very brief commentary and a set of questions. The book is clearly designed for teaching purposes and the way in which this purpose has been conceived has, from my point of view, determined both its virtues and limitations.

The author, Robert Odawi Porter, is Senior Dean for Research, Professor of Law and Dean’s Research Scholar of Indigenous Nations Laws at Syracuse University, and former Attorney General of the Seneca Nation of Indians. This description, drawn from his article, “The Inapplicability of American Law to the Indian Nations” recently published in THE IOWA LAW REVIEW, is a guide both to his stated purpose in creating this book and to the way in which he has shaped it.

First, he intends to enrich and extend the understanding of both Indigenous peoples and others on the concept of Indigenous sovereignty, which, he believes, has been variously defined and misunderstood to a point where the key word “sovereignty” is in danger of being abandoned. Taking a Wittgenstinian position that language – what can be said – delimits the boundaries of our world, he sees a profound significance in recuperating its denotative power so that which it connotes – substantially largely lost for many – is retained within consciousness to be available as a potential political force. This purpose is, [*561] indeed, a key to the whole enterprise – the (re)assertion of the sovereignty of Indian nations (and therefore citizenship within them) in the face of centuries of U.S. governmental policies of assimilation. “Indeed, it is the fact of this historic relationship that leads me to believe that we protect our sovereignty best by strengthening it where it originates – in our people – and not the American political system” (Porter 2002: 637).

(At this point I should note that it is both interesting and frustrating for this non-Indigenous reader that the three page explanation of purpose gave me so little of the author’s distinctive and persuasive position on the matter of indigenous sovereignty. Moved by a sense that there was more to be known that was directly relevant to reviewing the book, I then went to some of his recent articles; and it is from these that I quote here to illustrate the positioning of this book.)

Second, he believes that this extensive collection of documents, taken together, reveals how processes of European colonization in many parts of the world actually effected the displacement of Indigenous peoples. And this, in turn, explains why “Indigenous sovereignty has been undermined and in some cases completely eliminated in the minds of both Indigenous and non-Indigenous peoples” (p.xx). Together, these elements demonstrate the role of forced assimilation into the colonizing society as a process that subordinates and even perhaps ultimately eliminates Indigenous populations as consciously cultural entities with distinctive beliefs, practices (including those of governance), language, and identity. They also explain why he is concerned that assimilation has proceeded to the point where many Indians accept that their “sovereignty” is actually enfolded within US legal provisions.

To many Indians . . . being a “domestic dependent nation” sounds pretty good. But as any serious student of the federal Indian control law knows, this doctrine, as well as the others, are judicial fiction, made up on the spot by a Supreme Court hell-bent on preserving the upper hand for America at the expense of those poor sap Indians foolish enough to sue, or unlucky enough to be sued, in America’s courts. It is an especially limited notion of sovereignty, flexible enough so that, if necessary, the United States can bend it to its advantage (Porter 2002: 638).

European colonization has created a cultural divide between the Ongwehoweh – meaning the “real people” in the Seneca language – and the “Native Americans” – the people who are the descendants of the Ongwehoweh but who are now assimilated into the colonizing nation and who think of themselves politically as citizens of the United States (Porter 2002: 639-40).

The central rationale for this book is signalled in the author’s third and final purpose: to provide a “preliminary research tool” for Indigenous and non-Indigenous peoples. And again I needed to turn to his IOWA LAW REVIEW article to discover just why this is important.

[A] complete and proper analysis of the powers of the Indian nations looks not just to the laws of the United States that purport to regulate them, but to the laws and governing documents of the Indian nations themselves. Thorough lawyers, judges, and scholars presented with [*562] Indian law questions will begin their analysis of an Indian nation’s powers by examining the written and unwritten customary law, documents, and treaties that are the roots of the Indian nation’s own legal traditions. Invariably, however, this analysis is trumped by a secondary analysis that looks to American federal law as the definitive source of controlling legal precedent. In this way American federal law is thus assumed to be the only relevant source of law for determining the source and scope of tribal governmental powers. The consequence of this analytical approach is that those who practice and write about Indian law concede far too much authority to the United States at the expense of the Indian nations and their inherent sovereignty (Porter 2003-4: 1598).

Here, the word preliminary is used advisedly, for he goes on to warn that the materials have been heavily edited and citations and footnotes largely removed to the extent that these materials “should not be cited or referenced for research purposes” (p.xxi). Such a strategy is, of course, a clear statement that the book’s purpose is, above all, political and therefore its approach to the conventions of scholarly purpose tailored accordingly. There is nothing wrong with that in a teaching tool of the kind intended here. But it does mean that the stand alone quality of the material is compromised for scholars who might then only use it as a preliminary screening of potential research material.

In short, the book is a teaching rather than a research resource. But this too troubles me a little. Its very size seems might prove difficult for most undergraduate teaching in law, history, political science, or sociology – all of which might well benefit from its general positioning and approach to this important subject. In other words, I regret that source materials for a powerful argument are in a form which lessens the likelihood of the wide dissemination this work deserves. Perhaps what I am really asking here is for the author to offer also a shorter book in which he combines the ideas pursued in his recent articles with some of the key source material reproduced here. Such a book could serve as a valuable teaching tool in more general courses on politics, law, and indigenous peoples. In the meantime there is still much here to engage the attention and interest of scholars as well as students.

REFERENCES:

Porter, Robert B. 2002. “Two Kinds of Indians, Two Kinds of Indian Nation Sovereignty: A Surreply to Professor Lavelle.” 11 KANSAS JOURNAL OF LAW AND PUBLIC POLICY 629-656.

Porter, Robert B. 2003-4. “The Inapplicability of American Law to the Indian Nations.” 89 IOWA LAW REVIEW 1595-1632.


© Copyright 2005 by the author, Catherine Lane West-Newman.

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COURTS UNDER CONSTRAINTS. JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA

by Gretchen Helmke. New York: Cambridge University Press, 2004. 240pp. Hardback. £40.00 / $60.00. ISBN: 0521820596.

Reviewed by Javier A. Couso, Faculty of Law and Social Science, Universidad Diego Portales, Santiago, Chile. Email: javier.couso@udp.cl .

pp.556-559

Over the last decade or so, comparative judicial politics have experienced something of a boom, with research on the politics of courts being conducted in an increasing number of countries from all over the world. This represents a rather remarkable development for a field that until not so long ago was circumscribed to a handful of mainly English-speaking countries. As a consequence of this trend, scholars familiar with the theoretical frameworks and methods developed by traditional law and courts scholarship have studied the politics of justice in countries as varied as Taiwan, Hungary, and France (Ginsburg 2003; Scheppelle and Örkény 1999; Stone 1992). The book under review, COURTS UNDER CONSTRAINTS: JUDGES, GENERALS AND PRESIDENTS IN ARGENTINA, by Gretchen Helmke, represents one of the latest contributions to this literature.

As the title of the book suggests, this book addresses the judicial politics of Argentina, specifically at the Supreme Court level. Although it is a single-country case study, its aim explicitly exceeds the mere description and analysis of the political role of the Argentinean high court, purporting instead to develop a theory of high court behavior in what the author calls “deeply insecure institutional environments”—that is, countries where judges have no – or very limited – autonomy from the political branches. Furthermore, the book aims to contribute to the “attitudinalist approach” to the study of law and courts, especially to the “separation of power” variant of it, through the refinement of some of its standard assumptions.

Helmke’s basic point is to develop a model explaining why, on occasion, it would be rational for non-independent judges to rule against the government. In the process of doing so, she introduces the concept of “strategic defection,” which accounts for the otherwise paradoxical behavior of judges willing to rule against the government in countries where the courts have no or very limited autonomy. Given the relevance that this concept plays in the argument of the book, it is perhaps better to start fleshing out its meaning from the outset.

The notion of “strategic defection” captures the dynamic of court-government relations in the context of highly unstable institutional environments (such as that of Argentina), where new governments can easily change the composition of a high court whose members they distrust, through impeachment, forced resignation, or court-packing. In such places, argues Helmke, “the relevant inter-temporal conflict of interest shifts from the standard scenario of a judge [*557] appointed by a past government who is primarily constrained by a current government, to a more uncertain situation in which a judge appointed by the current government faces potential constraints at the hands of a future opposition government” (p.13). Given this context – continues Helmke – it would be rational for strategically-minded justices to start ruling against the current government once it starts to lose its power (“defecting” from it), in order to avoid being ousted by the next government.

Defending the relevance and originality of the concept of “strategic defection,” Helmke stresses the fact that, although neither the claim that judges rule against governments nor that they behave strategically is new, her claim that judges may on occasion rule against the government for strategic reasons, represents a novelty. Contrasting her model with Robert Dahl’s (1957) classical account of the legal-political cycle in the United States (in which anti-government decisions by the American Supreme Court are expected to happen at the beginning of new governments by judges appointed by the previous administration), Helmke argues that in institutionally unstable countries, such as Argentina, a radically different legal-political cycle obtains—one in which high courts will be loyal to new administrations at the beginning, but then rule against them toward the end of those governments—especially if a change in power seems likely.

The reason provided for this “reverse legal-political cycle” in institutionally unstable settings, is that in those places incoming administrations can more easily appoint new justices from the start, a move that would translate to high courts disposed to rule in their favor. With the passing of time, however – as governments grow weaker, and the chance that the opposition will take over increases – one should expect high courts to begin ruling against the government, in a strategic move aimed at reducing the chances of being punished by the incoming regime.

As Helmke emphasizes, the concept of “strategic defection” provides an answer to the otherwise puzzling willingness shown by high courts in many Latin American countries in which there is no judicial independence to rule against the government, thus providing a clue to the following question: “if even ostensibly independent judges have a hard time ruling against the current government, why would Latin America’s judges ever be willing to do so” (p.5)?

Having introduced the concept of strategic defection, Helmke, goes on to describe the basic assumptions of the model underlying this notion, in particular, the attitudinalist account of judges as rational decision-makers pursuing individual goals. Although she takes pains in analyzing alternative accounts of judicial behavior – such as the sincere pursuit of specific policy goals through their decisions – in the end she argues that “an implicit assumption underpinning the logic of strategic defection is that judges place a higher value on avoiding sanctions than on deciding cases in line with their sincere preferences” (p.30), a supposition she thinks holds in most institutionally unstable countries. Then, Helmke develops what she calls “a formal signaling model based on incomplete information,” aimed at organizing the [*558] insights that led her to come up with the notion of strategic defection in the first place, as well as analyzing why politicians in institutionally unstable places will “punish loyal judges and reward defectors” (p. 41). As she points out, the aim is to generate “a series of testable hypotheses about when and in which types of cases judges will strategically defect” (p.17).

Once elaboration of the formal theoretical model is finished, Helmke devotes the remaining chapters of her book to “evaluate how well the model performs empirically, by focusing on court-executive relations in Argentina” (p.61). She does so by analyzing the relationship between the Supreme Court and the executive power from 1976 to 1999 (a period which includes both dictatorial and democratic regimes) using both qualitative and quantitative data. In the concluding chapter, after elaborating on the way in which the Argentinean case “proves” the model of “strategic defection,” she devotes a few pages to apply this last concept to other Latin American countries.

Confronted with the task of assessing the quality of this work, one is faced with the difficulty of balancing its many virtues with its few – but fundamental – flaws. Thus, for example, while the field will certainly benefit from the insight and creativity exhibited by Helmke in elaborating the novel and theoretically interesting notion of “strategic defection,” there are a number of serious problems with her argument. The first and most fundamental one has to do with the way in which the core thesis of the book is introduced and then tested. Indeed, although the “strategic defection” concept is presented as an independently elaborated one (which is only then formalized into a theoretical model that is later tested empirically by seeing how well it explains a specific real-life case), everything in the book shows that the sequence of events was actually very different, leading to a serious methodological problem.

The issue arises from the fact that it was the very study of judicial politics in Argentina which led Helmke to develop both the concept of “strategic defection” and the model she then tests by seeing how well they explain the Argentinean case—that is, the very case which led to the elaboration of the concept and theory being tested. This rather circular strategy undermines what appears to be an otherwise well researched and elegantly written case study on the politics of the Argentinean Supreme Court, a work which could also legitimately claim credit for having introduced a novel concept in the literature on court-executive relations (one with the potential of broadening our understanding of judicial independence in highly unstable institutional environments).

The danger of methodological circularity could have been avoided if the author had restricted herself to do just an analysis of the Argentinean case and to engage in concept and theory-formation, without pretending to both introduce a theory and then test it. By attempting to do all these things, Helmke reached a dead end, which was only made worse by her cursory analysis “applying” her model to four other Latin American cases –a task to which she devotes just a few pages in a segment plagued with factual errors concerning the judicial politics of the countries concerned. [*559]

The major methodological problem just noted is paradoxical, given the almost obsessive attention Helmke pays to the particular approach to which she openly adheres to: the rational choice approach to law and courts employed by the “attitudinalist school.” Indeed, Helmke’s preoccupation with being on top of the latest methodological innovations of this approach to judicial behavior seem to have prevented her from looking at the Argentinean case with a fresh mind, which in turn may explain why she missed such an important methodological problem, while been keenly aware of other, more minor issues.

As it happens in the field of economics and, increasingly, in rational choice-oriented political science (where empirical research is often method-driven), Helmke’s book at times gives the impression that the author was more interested in improving the state of the art of a specific scholarly approach, than in trying to understand all the nuances that the Argentinean case presented, a move that ultimately distracted her from the primary focus of the book, a study of court-executive relations in that country in the last portion of the twentieth century. This is to be regretted, in light of the massive amount of insightful information and analysis the author gathers and generates, all of which could have been put to a better use than the defense of an argument that seems directed to the very narrow audience of those practicing the attitudinalist model.

REFERENCES:

Dahl, Robert. 1957. “Decisionmaking in a Democracy: The Supreme Court as a National Policymaker.” 6 JOURNAL OF PUBLIC LAW 279-95.

Ginsburg, Tom. 2003. JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES. New York: Cambridge University Press.

Scheppele, Kim Lane, and Antal Örkény. 1999. “Rules of Law: The Complexity of Legality in Hungary,” in Martin Krygier and Adam Csarnota (eds), THE RULE OF LAW IN POST-COMMUNIST SOCIETIES. Brookfield, VT: Ashgate.

Stone, Alec. 1992. THE BIRTH OF JUDICIAL POLITICS IN FRANCE: THE CONSTITUTIONAL COUNCIL IN COMPARATIVE PERSPECTIVE. New York: Oxford University Press.



© Copyright 2005 by the author, Javier A. Couso.

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THE FBI AND AMERICAN DEMOCRACY: A BRIEF CRITICAL HISTORY

by Athan G. Theoharis. Lawrence, KS: University Press of Kansas, 2004. 224pp. Cloth. $24.95. ISBN: 0-7006-1345-5.

Reviewed by Jennifer Koleser and Candace McCoy, Rutgers University – Newark, NJ, School of Criminal Justice. Email: cmccoy@andromeda.rutgers.edu and JMKOLESER@aol.com .

“The FBI and American Democracy” – an oxymoron? Even ardent supporters of the Federal Bureau of Investigation admit that the Bureau’s history includes many examples of suppression of democratic activities such as the exercise of free speech or the “right to associate” with leftist or racial justice activists. The usual explanation for this troubling history is that the FBI was created and controlled by the ultimate g-man, J. Edgar Hoover, whose capacity to snoop and blackmail even the most powerful politicians is legendary. Considering that there is already such a detailed literature about Hoover personally (Powers 1987) and the FBI generally (see the annotated bibliography compiled by Theoharis, et al. 1999), the most welcome new work on the Bureau would probably be an examination of the Bureau’s powers as they may shed light on today’s crucial debate: how to respond to terrorism while simultaneously retaining fundamental democratic institutions. After all, if security imperatives cause Americans to abandon their democratic principles, we will have won the war but killed the nation.

This is not that book, but it is a start. Athan Theoharis presents a detailed history of the FBI’s malfeasance in matters of civil rights, glossing over the question of whether security threats justified these responses (even though they were tacitly approved by Presidents and Congress) or whether they were the outcome of Hoover’s personal ideology and his capacity to create and direct this powerful agency so as to advance that ideology. Other explanations are possible, of course, but Theoharis does not explore them in depth. Instead, this book is remarkable chiefly for the data and methodology of the study and the detailed history they produce. Theoharis adds to his list of publications on the FBI (such as CHASING SPIES: HOW THE FBI FAILED IN COUNTERINTELLIGENCE BUT PROMOTED THE POLITICS OF MCCARTHYISM IN THE COLD WAR YEARS, a title which presents the same thesis as this book,) by painstakingly piecing together records and files from the presidential libraries of five presidents and reports from all congressional hearings and inquiries into the FBI since 1975, including the Church Committee hearings. The result is often eye-popping. The book “highlights how the creation of a secret federal police force could threaten a democratic society” (p.32) and how Congress and the executive have been prevented from controlling that agency.

Created in 1908, the Federal Bureau of Investigation was initially formed to investigate violations of federal [*553] anti-trust, postal and banking laws and criminal acts directed at the federal government. In1936, the threat to U.S security from Nazi Germany and the Soviet Union led to a sharp increase in agents and appropriations. Later, due to the Cold War, the Bureau’s scope of powers and size grew considerably again. Today, as the United States grapples with the “War on Terrorism,” the FBI’s powers have increased even more, particularly with the passing of the 2001 USA Patriot Act. Although many people believe that the seemingly unconstitutional powers granted by the Patriot Act are something new to this country, Theoharis shows that the FBI has been engaged in warrantless wiretapping and domestic spying for decades. In ten chapters that chronologically march through American history of the twentieth century, he details (though unfortunately does not footnote) the FBI’s programs and tactics.

Although this review cannot begin to mention all the various examples of domestic intelligence activities that the book covers, two stories are particularly instructive, not only for understanding how the FBI has carried out its “domestic spying” mission in the past, but also to illuminate the origins of contemporary political dilemmas. The stories involve the division of espionage powers between the State Department and the FBI and how the FBI came to control all domestic intelligence activities, and the history of how the FBI has conducted wiretapping.

Theoharis finds the origins of the FBI’s domestic espionage powers in President Roosevelt’s response to World War II. Prior to 1939, the State Department had controlled espionage activities, including any spying on American citizens suspected of working with foreign powers. That department could request FBI assistance, but FBI activity could be triggered and directed only through State Department request. J. Edgar Hoover appealed to Frank Murphy, Attorney General under Roosevelt, to convince the President to lift the State Department’s power over FBI investigations. In a secret directive, Roosevelt did so, and “FBI officials soon parlayed their trumping of the State Department into an exclusive FBI monopoly” to monitor “subversive activities” related to security threats from abroad, and also to investigate and suppress any activities of American citizens who criticized foreign policy, “as well as radical labor leaders who could disrupt military production” (p.48). The war against Nazism became a war against home-grown dissent, and the FBI was given complete control over it. Hoover expanded his surveillance powers by enlisting such groups as the American Legion to provide constant spying on political activities everywhere in the nation, and by instituting a Custodial Detention list of persons who should be “watched carefully” because they were anticipated to be subversive and potentially detainable. When a subsequent Attorney General, Francis Biddle, attempted to rein in the Bureau, ordering Hoover to discontinue the Detention program because it had “no statutory justification,” the action paradoxically “had the unanticipated consequence of undermining the ability of Attorneys General to oversee the FBI” (p.55). Hoover simply continued his activities while keeping all the files secret, a practice that deepened and expanded in ensuing decades. Thus, [*554] accountability to any other government agency was prevented, and the results of this sad history are apparent today.

This story certainly has ominous parallels to the current situation, in which one of the political responses to the horrible events of September 11 is the Patriot Act in its various versions. Another story, that of wiretapping domestic organizations and citizens because of Cold War fears, chronicles how a series of Attorneys General deferred to FBI wishes by issuing secret directives permitting the Bureau to wiretap and search without pre-approved warrants. Theoharis notes that Herbert Brownell, Eisenhower’s Attorney General, “was uneasy about directly authorizing a violation of the Fourth Amendment,” so he would not sign any permissions and would not seek judicial approval of warrants, thus assuring there would be no record of law violation on the part of the Justice Department – which serves to “underscore how legal and constitutional limitations no longer governed administration policy toward the FBI,” says Theoharis (p.68). Today, the Patriot Act openly and explicitly permits some bugging and searches without probable cause and without warrants, though the actions are reviewable in subsequent prosecutions.

Given the history that this book nicely recounts, is it wise to expand the powers of the FBI after 9/11? Actually, it is possible that those powers have been both expanded (through the Patriot Act) and controlled (because the FBI must now answer to the newly-created “Intelligence Czar” who oversees and coordinates anti-terrorism efforts of several federal agencies.) The 2002-2003 joint House-Senate Intelligence Committee’s investigation report concluded that the FBI should “strengthen and improve its domestic capability as fully and expeditiously as possible,” while the 9/11 Commission convinced Congress to create the office of a national intelligence director who will be capable of overseeing the FBI along with the CIA, at least in matters related to foreign threats. This book was published before the 9/11 Commission found that infighting between the FBI and CIA had caused vital information to be ignored prior to the attacks and that the FBI’s efforts to expand its domestic counterintelligence activities after 9/11 were “counterproductive” (Commission 2005).

The main thesis of Theoharis’ book is that the FBI has concentrated so much on suppressing political views with which Hoover and his allies disagreed that it has not developed the capacity for conducting competent intelligence gathering about more dangerous threats – most notably, Al Queda. The recommendations of the joint congressional Intelligence Committee appear to be indifferent to the FBI’s history of intelligence failure and civil rights abuse, calling for the expansion of surveillance powers and the adoption of more aggressive tactics, although this approach has been shown by the history of the FBI – and, indeed, by the events of 9/11 itself – to be severely flawed.

Unfortunately, the book does not develop all parts of its thesis. Theoharis masterfully documents the FBI’s history of suppressing political activity but does not demonstrate that a different approach would have improved the mishmash of intelligence that led to September 11. The book includes almost too much [*555] detail regarding the FBI’s abuses of democratic principles, and this is sufficient to make a compelling case for controlling the agency more carefully. But it is only in the Introduction and last section, “The Modern Bureau and Politics of Terrorism,” that the stated thesis of the book is explored. The main point is that, unless the FBI is considerably revamped, civil liberties will continue to be eroded, but better security for the nation will not necessarily result. Theoharis adds that the FBI’s inability to prevent 9/11 was not caused by lack of sufficient authority or an outmoded law enforcement culture; the problem was that agents knew very little about the terrorists and were unable to distinguish them from those simply holding militant Islamicist views. Presumably, if the Bureau had devoted energy to understanding the distinctions, a better outcome might have been possible. But this is merely speculation, the sort of “anticipation” that Theoharis decries in FBI policies. The book’s Introduction and “Modern Bureau and the Politics of Terrorism” sections are almost certainly the most germane to current debates, but they are thin chapters bracketing the painstakingly presented middle sections chronicling decades of abuse of democratic processes.

Overall, this is an excellent piece of scholarship with important implications for current policy debates. But those implications remain contentious in the political arena, and this book does not take a stand on them other than to raise George Santayana’s old caution: those who do not remember the past are condemned to repeat it.

REFERENCES:

National Commission on Terrorist Attacks Upon the United States. 2005. 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES. Washington, DC: Replica Books.

Powers, Richard Gid. 1987. SECRECY AND POWER: THE LIFE OF J. EDGAR HOOVER. New York: Free Press.

Theoharis, Athan G., Tony G. Poveda, Susan Rosenfeld, and Richard Gid Powers (eds). 1999. THE FBI: A COMPREHENSIVE REFERENCE GUIDE. Phoenix: Oryx Press.



© Copyright 2005 by the authors, Jennifer Koleser and Candace McCoy.

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CATO SUPREME COURT REVIEW 2003-2004

by Mark K. Moller (ed). Washington, DC: Cato Institute, 2004. 536pp. Paper. $15.00. ISBN: 1-930865-58-9

Reviewed by David K. Ryden, Department of Political Science, Hope College. E-mail: ryden@hope.edu .

pp.546-551

I am penning this review of the CATO SUPREME COURT REVIEW 2003-04 shortly after Lawrence Tribe has announced he will forego further editions of his constitutional law textbook. His stated reason – the Court’s work is so contradictory and lacking in grand theory or cohering principle as to render the writing of a lucid, intelligible text impossible. Indeed, the Rehnquist Court is defined by its very lack of jurisprudential definition, defying description or label as consistency eludes it. Whether the topic at hand is church-state relations, federalism, criminal procedural protections, redistricting, or any number of other issues, the Court’s output is notable for the absence of a discernible guiding principle of interpretation. As editor Mark Moller rhetorically queries in this collection’s Foreword, one wonders whether anything this uncertain deserves to be called law.

In its broad sweep, this book is a refreshing antidote to the stumbling, uncertain, muddled jurisprudence at the heart of so much of the Supreme Court’s work these days. The libertarian think tank has solicited a varied array of contributors to critique the High Court’s 2003-04 term. In the process, the book gives the reader a striking illustration of what constitutional law might look like if it did adhere to a clear set of animating first principles—in this case “individual liberty, . . . property rights; federalism; and a government of . . . limited powers” (p.1). The result is a principled, consistent, coherent, overarching decision making philosophy applied in a wide assortment of legal contexts. Even for those who may disagree with that philosophy (as I would guess the majority of this section’s members probably do), this volume should facilitate a much needed discussion over whether and to what extent the Court’s work should grow out of a comprehensive judicial ideology or philosophy. One need not be a dyed-in-the-wool libertarian to appreciate the value in this enterprise, or to find much of value in this volume.

One preliminary cautionary note: The volume is intended to render the Court’s work accessible to a diverse audience, written for “citizens interested in the Constitution and the Court’s interpretation of it” (p.1). I question whether the contributors succeeded on that front. The chapters assume substantial familiarity with constitutional analysis, and as a rule are exhaustive in their respective treatments. While this can make the book satisfying for the serious student of constitutionalism, it will challenge the casual reader. The book can be tough slogging at times. Nevertheless, there are rewards for those willing to do the slogging.

Any review of an edited collection is likely to reveal the idiosyncratic interests and [*547] tastes of the reviewer. The chapters I found most interesting were those implicating the general jurisprudential affliction plaguing the Court that I cite in my opening paragraph. Vikram David Amar does so within the framework of CHENEY v. U.S. and questions of executive privilege as they apply to the office of the vice president. Without detracting from Amar’s fine historical analysis of the substantive issue, I found his most significant contribution to be his fleshing out of an important, but dispiriting, overarching theme of the Court in 2003-04, of which CHENEY is just one example – namely the Court’s “deciding not to decide” (p.185). In numerous cases, including CHENEY, the Court’s ultra-cautious collective judicial temperament produced results that failed to resolve, clarify, or otherwise meaningfully elucidate significant open questions of constitutional law. In NEWDOW, the pledge of allegiance case, the Court invoked technical standing objections to sidestep the merits. In LOCKE v. DAVEY, it similarly ignored the elephant in the room of establishment clause jurisprudence, namely the constitutional validity of the Blaine amendments found in most state constitutions. In VIETH, the partisan redistricting case from Pennylvania, the Court “simply put off the question whether it will ever police overly zealous political gerrymandering” (p.189). In the enemy combatant cases, the Court determined that Guantanamo prisoners in theory had some undefined right to contest their detention but offered no assistance in determining what those rights might include. In his analysis of CHENEY, Amar delineates numerous inconsistencies in the executive privilege precedents, which the Court could and should have corrected in CHENEY, but did not. As a result, the law of executive privilege remains in a state of utter confusion.

The Court’s minimalism – its tendency to issue fact specific, narrowly drawn opinions with limited precedential application – has been a subject of much scholarly discussion, and even praise (e.g., Sunstein 1999). I find it a troubling development, of which the Court’s “deciding not to decide” is a related judicial impulse. Both indicate an aversion to decisiveness, distaste for actually laying down legal principles of some breadth that might illuminate law or guide legal actors in the future. I wish Amar had made more of an effort to reflect upon the general significance of these corollary trends. One would hope that, with its ever-contracting workload and docket, the Court’s time and resources are invested in cases where it is able and willing to shape a reasonably comprehensible body of constitutional law. At first glance, the Justices’ minimalist inclinations suggest an admirable judicial modesty and perhaps even recognition of the Court’s proper place in a governmental structure of separated powers. Sunstein credits the Court with an intentional ambiguity that is inherently democratic, pushing tough issues back into the legislative arena where they belong. I am skeptical. Intuitively, it strikes me that the Court’s indecision is more likely to have a chilling affect on a range of other actors – the lower courts, Congress and state legislatures, private parties – whose behavior and actions derive from their ability to know the law. Ironically, less may be more in terms of judicial power; by wielding its power tentatively, the Court may gain greater control over the [*548] other branches and elevate its power. But it comes at the expense of a rule of law that is knowable, understandable, and a serviceable guide to future conduct.

In what I found to be easily the most provocative and creative chapter in the book, Jonathan Turley makes a similar argument – that the Court’s decisions fail the basic test of principled, predictable rule of law. He does so within the framework of the enemy combatant cases, using them to analogize modern constitutional decision making to impressionistic art. Turley describes the rise of the impressionistic school of constitutional interpretation, as legal formalism and structure have yielded to abstraction and creative translation, what Turley terms a “constitutional surreality” (p.72). The greatest connoisseurs/practitioners of this legal abstractionism, of course, are the legal academy itself. Anyone who might actually look for textual meaning or guidance is sure to suffer their scorn and derision. The Supreme Court, more impressionistic than outright abstract, exhibits the same tendencies in less extreme form. In the HAMDI case, master impressionist Justice O’Connor takes what should be a transparently clear provision (the Suspension Clause), and views it “through the lens of experience and contemporary realities, distorting and reproducing it in a new interpretive form” (p.91). Turley calls O’Connor a “faux-impressionist” whose insatiable taste for balancing and reasonableness is not aimed at truth or substantive correctness, as one would expect from a true artistic impressionist. Rather it is the tool of convenience, enabling her to reach her preferred outcome. In the hands of O’Connor and her fellow impressionists, the Constitution itself is “mere object for extrapolation and reinvention,” as the Court relies upon elastic balancing tests to reach results so prosaic and opportunistic as to be unintelligible in practice or application (p.97). After analyzing PADILLA and RASUL in a similar vein, Turley concludes that we are no closer to a discernible understanding of fundamentally important concepts implicated by the anti-terrorism cases – separation of powers, the role of the courts, and executive authority. The result – at a time when the government is obsessed with national security and anti-terrorism, and hence the need for clear constitutional markers is greatest – is a “vacuum of authority and confusion” (p.114). Turley attributes this legal impressionism to the Court’s dysfunctional dynamic in personnel and personalities that deprives it of the ability to offer much beyond minimalist pronouncements. Certainly the melding of this dynamic with the especially pronounced impressionist tendencies of the key swing Justice (O’Connor) amplifies the murky minimalism of the Court, to ill effect. In impressionistic art, the satisfaction is heightened when one brings her personal emotions, experiences, and interpretation to the work. But the consequence of the legal version of impressionism is hardly benign; rather it is the loss of knowable, applicable, principled rule of law.

Turley’s piece is one of three essays devoted to the anti-terrorism/enemy combatant cases that were at the center of the Court’s 2003-04 term. Casual followers of these cases, for whom the legal issues might blur together, will benefit greatly from Timothy Lynch’s [*549] chapter, entitled “Power and Liberty in Wartime.” Lynch catalogues the distinctive rights that designated “enemy combatants” might have in varying circumstances, depending upon (1) the detainees’ status as American citizen, illegal immigrant, or nonresident alien, (2) whether capture took place in America or abroad, and (3) the punishment sought by the government. I found the straightforward analysis especially helpful in thinking clearly about the host of issues raised in these cases.

Robert Levy, in an excellent essay examining 11th Amendment sovereign immunity for state governments, extends Turley’s portrayal of a Court freed from constitutional text. He demonstrates that this is an equal opportunity Court, whose conservatives are as capable as their more liberal colleagues of “distending” and “distorting” to reach conclusions “wholly unleashed from . . . crystal-clear text”(p.161). Levy eviscerates the string of decisions extending sovereign immunity to state governments as based on a facially flawed reading of the 11th amendment. He suggests, rightly in my mind, a conservative bloc increasingly frustrated with boundless congressional power, wielded in blatant disregard of the limits of enumerated powers. But the conservatives’ attempts to constrain that power through sovereign immunity have only insulated governments from the legitimate claims of individual citizens. Levy exhorts the Court to do right the right way, by requiring that every federal law have “an obvious and direct relationship to the specific constitutional power . . . [it] purports to execute.” Of course, this would mean a “frontal assault on overarching central government – confining Congress to those functions that are limited by and enumerated in the Constitution” (p.184).

In his contribution, Mark Moller anticipates an issue that has received much attention recently, the appropriateness of American judges looking to international legal norms in deciding constitutional issues. Moller parses SOSA v. ALVAREZ-MACHAIN, the Alien Tort Statute (ATS) of 1789, and the Constitution, concluding that Congress rather than the courts is the preferred expositor of international law. Separation of powers and the limited jurisdiction of the courts compel explicit statutory authorization and direction before judges affirmatively render determinations under international law. Moller is highly critical of the 9-0 SOSA decision, in which the Court dusted off the long-dormant ATS to decide Alvarev-Machain’s claims on the basis of international law. Moller bemoans the weakening of the Court’s “fidelity to the rule of law” (p.237), worrying that the decision will “give impetus to judicial use of international law to construe the content of substantive constitutional . . . rights” (p.240). Those fears were realized this term in the ROPER v. SIMMONS death penalty case. Unfortunately, Justice Anthony Kennedy’s reference to international norms in SIMMONS was every bit as muddled, ill-defined, and unbounded as Moller’s argument in this chapter is clear, logical, and impressive.

Other essays in the book do a fine job exploring campaign finance reform (MCCONNELL v. FEC), Congress’ ongoing struggles to regulate the internet (ASHCROFT v. ACLU II), the establishment clause (LOCKE v. DAVEY), [*550] and the Court’s refusal to take up a series of commerce clause challenges to environmental regulation. Finally, a trio of essays examine decisions pertaining to the constitutional procedural protections of criminal suspects.

Two aspects about the book raise questions of the nature and effectiveness of a broad-based constitutional critique such as this. One is the book’s tone. A lone essay on the confrontation clause gives the Court credit for getting it right. Otherwise, the inexorable drumbeat of criticism borders on monotony. This is especially true when the arguments are akin to tilting at windmills, as libertarian critique is prone to do. For example, Gary Lawson dissects a relatively minor case (SABRI v. US) to argue, convincingly, that the federal spending power is unmoored from the constitutional constraints of the “necessary and proper” clause. But he spends countless pages on an argument he openly admits that no lawyer in his right mind would make before the Supreme Court. Lawson may be correct in asserting that the Court’s work in this area has been “egregiously” wrong for 75 years. But at some point, it arguably becomes self-indulgent to keep fighting battles that are so clearly lost.

The book’s other frustrating aspect is the tendency to state the case in absolutist terms. I have often thought purer forms of libertarian thought would be quite persuasive if only we were beginning the task of government formation anew. But the arguments are too easily dismissed when they ignore historical, social, and political developments, and the legitimate demands upon government engendered by those developments. This mindset is most evident in the analysis of criminal procedural cases. To illustrate, this volume contains two broadsides on the Supreme Court’s approval of what most would consider reasonable, common sense police practices. Tracey Maclin attacks PRINGLE, in which the Court upheld a finding of probable cause to arrest all three men in a car where drugs and cash were found after none of the three would provide any information (Maclin contends that “particularized probable cause” is needed to arrest each suspect). Likewise Christine Klein derides a unanimous decision in HIIBEL, validating the arrest of an individual who refused to give the police his name. Both essays are well written and forcefully argued. But they are indicative of a tendency to elevate individual liberty to the exclusion of a consideration of competing constitutional values. Neither Maclin nor Klein gives much thought to the practical impact of their arguments, which would seemingly place impossible burdens on police officers’ basic investigatory functions.

I am not unsympathetic to much of the libertarian critique. But the arguments would have more force if tempered by an acknowledgement of other constitutional values at stake. In the end, readers’ reactions to this book will depend in no small part on how they feel about the appropriateness of a comprehensive constitutional approach flowing from a single set of basic principles. It also highlights the practical challenge facing those who are deeply dissatisfied with the state of contemporary jurisprudence as to how best to move the constitutional law in the direction they prefer. [*551]

REFERENCES:

Sunstein, Cass R. 1999. ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT. Cambridge: Harvard University Press.

CASE REFERENCES:

ASHCROFT v. ACLU II, 124 S. Ct. 2783 (2004).

CHENEY v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, 124 S.Ct. 2576 (2004).

ELK GROVE UNIFIED SCHOOL DISTRICT v. NEWDOW, 542 U.S. 1 (2004).

HAMDI v. RUMSFELD, 124 S.Ct. 2633 (2004).

HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, 542 U.S. 177 (2004).

LOCKE v. DAVEY, 540 U.S. 712 (2004).

MARYLAND v. PRINGLE, 540 U.S. 366 (2003).

MCCONNELL v. FEC, 540 U.S. 93 (2003).

RASUL v. BUSH, 124 S.Ct. 2686 (2004).

ROPER v. SIMMONS, 540 U.S. 1160 (2004).

RUMSFELD v. PADILLA, 124 S.Ct. 2711 (2004).

SABRI v. US, 541 U.S. 600 (2004).

SOSA v. ALVAREZ-MACHAIN, 124 S.Ct. 2739 (2004).

VIETH v. JUBELIRER, 541 U.S. 267 (2004).

*************************************************

© Copyright 2005 by the author, David K. Ryden.

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BRENNAN AND DEMOCRACY

by Frank I. Michelman. Princeton: Princeton University Press, 2005, 160pp. Paper. $17.95 / £11.95. ISBN: 0-691-00715-2.

Reviewed by Robert Justin Lipkin. Widener University School of Law. Email: Robert.J.Lipkin@law.widener.edu .

pp.539-545

Is it possible to square judicial review with democracy? Just where do judges derive the democratic credentials to overturn laws enacted by elected officials? For the past five decades, if not considerably longer, American political scientists and legal scholars have been preoccupied, even obsessed, with this so-called “counter-majoritarian problem”? In BRENNAN AND DEMOCRACY, Frank I. Michelman, one of America’s pre-eminent constitutional theorists, tackles this question head-on. From the pages of Justice William Brennan’s judicial opinions, Michelman cobbles together the idea of romantic democratic liberalism as a possible savior of judicial supremacy in a constitutional democracy.

In fact, Michelman is more concerned with the dialectic of judicial supremacy than with final answers. Through Michelman’s methodology of dialectic exposition the idea of romantic democratic liberalism unfolds, depicting the process through which the American political community becomes more inclusive as the public recognition of individual dignity increases. This dialectic presents a rare opportunity to be privy to the reflections of one of the most philosophically sophisticated constitutional theorists in contemporary scholarship as he dramatically explores the prospect of a democratically bona fide system of judicial review.

The major players in this drama are constitutional theorists, Ronald Dworkin and Robert Post, Justice Brennan, and of course, Michelman himself, with political theorists Claude Lefort and Nancy Rosenblum, philosopher John Rawls, and legal scholars Robin West, Steven Shiffrin, and Roberto Unger making brief but significant appearances. The book consists of two chapters, the first examining the idea of democracy and constitutionalism through the theories of Dworkin and Post, the second teasing out Justice Brennan’s commitment to romantic democratic liberalism and contrasting it with communitarianism.

Serving as a shill for a host of other, more fundamental, issues in political philosophy and constitutional theory, the counter-majoritarian problem is less important in Michelman’s inquiry than it may first seem. Keeping the counter-majoritarian problem in focus, Michelman’s inquiry assumes an explanatory framework, which raises four distinct, though interrelated, questions: (1) What legitimizes political authority? (2) Is individual liberty compatible with collective self-government? (3) Are democracy and constitutionalism compatible? and (4) Is the judiciary a democratically appropriate institution for deciding the content of constitutional constraints on self-government? [*540]

The first question reflects political philosophy’s relentless pursuit of the source of political authority. What justifies political organization and the duty to obey law in the first place? This primary question opens the door to the remaining questions in the framework of political legitimacy, though Michelman has little explicitly to say about its answer. The second question is the touchstone of Michelman’s inquiry. Here Michelman reveals his commitment to the moral sovereignty of the individual and the salience of consent in a constitutional democracy. For Michelman, the individual is the basic moral unit of political legitimacy; any state warranting allegiance must respect the individual’s freedom to govern her own life. This second question attempts to understand how individual freedom and democracy are compatible. Is it possible for someone to be self-governing while simultaneously obeying laws of which she disapproves? And, in the end, how can a person identify with such laws as her own? If, for example, an individual opposes social security, how can she retain her freedom to self-govern in a democracy requiring social security? The third question asks how constitutional constraints on self-government are possible. Are such constraints legitimate? If so, according to which conception of democracy? If not, what other sources of legitimacy are available? Finally, assuming an affirmative answer to question three, namely, that democracy is compatible with constitutionalism, how can such an ostensibly undemocratic institution as the judiciary serve as final arbiter of constitutional constraints on self-government? More germane to the subject of Michelman’s dialectic, what justifies Brennan’s judicial activism?

Michelman approaches the third question by presenting the paradox of constitutional democracy, which sets constitutionalism—“the ideal of self-government constrained by law”—against democracy—“the ideal of self-government by the people” (p.4). One possible way to overcome this paradox, in the first instance, is to realize that democracy may depend on both substantive and procedural norms. Substantive norms have content; they take a stand on what has value, while procedural norms are methods for deciding which substantive norms are correct and just what their content is.

As an exemplar of substantive democracy, Michelman explores Dworkin’s conception of democracy as rights. Democracy, according to Dworkin, requires the basic laws of a country to include: a prohibition against caste, the right to vote, non-arbitrary use of state power, freedom of speech, conscience and association, and “the intellectual and moral independence of every citizen” (p.18). Democracy as rights requires that both constitutional text, and interpretations of constitutional text, respect these democratic rights as constitutional constraints on lawmaking. For Dworkin, once we grant this conception of democracy as rights, there is no obvious reason why judges should not appeal to these rights in formulating the laws of lawmaking. This conclusion becomes even more evident when one considers “the practical possibility that an independent judiciary will tend to get closer to the truth than would the great body of the people or their elected tribunes in the legislatures” (p.19). [*541]

After all, in a democracy some branch of government must decide whether ordinary laws, enacted by the elected branches of government, satisfy the laws of lawmaking as set forth in the Constitution and in the governing interpretations of constitutional text. It stands to reason that the branches that enact ordinary laws should not sit in judgment over the constitutional propriety of these very same laws. Indeed, that would be posting a fox as guard of the hen-house. By keeping the legislative fox at bay, the courts constitute a proper guard over the operations of self-government.

Judicial review disciplines the government to maintain fidelity to the Constitution. Independent courts, with only an interest in protecting the Constitution, are perfectly situated to enforce the laws of lawmaking. Impartial judges can make sure that the legislative and executive branches are not carried away by sudden fashions or by the perceived necessity to enact legislation that, in the end, conflict with the laws of lawmaking and therefore are undemocratic and illegitimate. Democracy as rights expresses the proper conception of “democracy” when judges, though interpretive review, enable constitutional rights to trump wayward legislative choices. Democracy as rights also helps determine who is morally eligible for membership in the political community without the bigotry and intolerance often associated with legislative exclusion of marginalized citizens.

Michelman clearly recognizes the tension between democracy as rights and self-government. Even if we grant that democracy as rights requires enforcement against a maverick majority, it hardly follows that the courts are the appropriate enforcer. Why not the people? Why not let the electorate decide in the next election whether the present majority violated the laws of lawmaking? Doesn’t judicial review “put the court in the people’s rightful place” (p.22)?

While realizing the people’s central role in self-government, Michelman’s impulse is to resist the idea of popular constitutionalism. If laws have a correct, determinate content, then subjecting them to politics can be catastrophic. Letting the electorate decide effectively denies the connection between constitutionalism and truth. That is where judges come in. As outsiders to politics, judges are especially suited, if anyone is, to articulate the true content of these laws. Remember, in a democracy, “the electorate and the legislatures act on the basis of policy and preference, and [we should] leave it to the judges to tell them when their policies and preferences are over the line of morally necessary constraint” (p.23).

Because the judiciary is impartial, it is also the best institution for determining who is morally eligible for membership in the political community; these eligibility conditions, interpreted correctly, guarantee that everyone is afforded the dignity and respect they deserve. An independent judiciary, guaranteeing these conditions, enables citizens to identify their own political agency with the lawmaking acts of the polity (p.31).

Yet problems remain. Even if “democracy” has a determinate meaning, why should we credit judges with any special expertise in deciding what it is? Why not give the job of interpreting the laws of lawmaking to political philosophers, whose professional job is [*542] to analyze and rank competing conceptions of democracy? What in a legal background qualifies judges to decide the meaning of democracy? More important, Dworkin ignores the possibility that the best conception of democracy not only includes individual rights, but also requires that people, individually and collectively, discover the content of these rights themselves. Emphasizing individual rights might imply that it is the electorate’s responsibility and prerogative to determine through political engagement just what the parameters of this content are. Finally, should there not be some empirical evidence that judges guarantee the eligibility conditions of membership in a political community better than the elected branches or the people? DRED SCOTT, PLESSY, and a host of other Supreme Court decisions, suggest otherwise.

If democracy as rights fails, what about procedural democracy? In the eyes of its proponents, procedural democracy is necessary for self-government. However, any possibility of pure procedural democracy seems doomed from the start. If democratic politics is the method of deciding the content of democracy, we face the paradox of needing to know what democracy means before we can deploy a democratic procedure for deciding its meaning. To overcome this paradox, a democratic polity must possess a procedurally independent conception of democracy. However, any procedurally independent conception seems to make self-government illusory. Because citizens have little, or no, say in what counts as the procedurally independent content of these laws, the most important question of self-government, namely, just what democracy means is beyond the people’s reach. Is there any way to resurrect the possibility of procedural democracy in order to avoid this paradox? In search of an answer, Michelman turns next to Robert Post’s procedural conception of “responsive democracy.”

Post’s responsive democracy echoes what the philosopher Richard Rorty refers to as free, undistorted conversation, perpetual and unrelenting argument between and among members of a diverse population. Values, old and new, are continually tested through deliberative discourse, and as a result some are revised or abandoned while others are retained. No one’s values have any assurance of prevailing and the debate has no guarantor or necessary termination. Participating in this public discourse enables each member, winner and loser alike, to make the lawmaking system her own (p.37).

Post’s responsive democracy is not restricted to any particular norm except robust free discourse itself. This renders responsive democracy exceptionally attractive because it requires no foundations, and so bars no one. Instead, democracy is achieved when discourse is responsive to each and every citizen who wants to participate in shaping the identity of the democracy at any given time. Michelman considers Post’s commitment to anti-foundationalism to be suspect. In his view, Post’s responsive democracy cannot be jump-started without a commitment to the foundational principle of free and unfettered discourse open to all who choose to participate. Without this foundational principle the distinction between legitimate and illegitimate discourse is impossible. Yet, this distinction is necessary if responsive democracy is to make good on its pledge to create free and open discourse. We [*543] need to know when discourse fails to satisfy this pledge for responsive democracy to work in the first place.

In Post’s defense, however, Michelman seems to overlook the distinction between strong and weak foundationalism. Democracy, in a strong foundationalist sense, is fixed or dedicated to a closed set of particular values such as libertarianism, socialism, capitalism, and so forth. Post’s weak foundationalism is not committed to any such substantive values. Responsive democracy relies on citizens to determine the content of the laws of lawmaking through free and open debate. The differences between substantive democracies and Post’s responsive democracy are broad enough to deflect Michelman’s charge that Post is committed to foundationalism. Michelman is correct that no theory can escape weak foundationalism. But Post’s weak foundationalism is sufficiently different from other strong democratic foundations to warrant the name “anti-foundationalism” or at least “limited foundationalism.” Of course, even so, Post’s responsive democracy is open to the charge that it lacks the resources to prevent a current majority from establishing tyrannical rule. This raises the perennial question of whether normative democratic theory permits democrats to democratically end their democracy. Michelman’s view seems to reject any conception that permits this possibility.

In rejecting Dworkin’s substantive conception of democracy and Post’s procedural conception, Michelman has not, of course, damned the project of grounding democracy in one or the other or in some syncretic conception of both. However, there exist a priori reasons for doubting the possibility of either conception. Substantive conceptions seem to introduce an undemocratic element into democracy, namely, deciding on democracy’s content independently of politics. Procedural democracy seems defective because if nothing substantive guides the procedure, its susceptibility to tyrannical preemption is ubiquitous.

Substantive conceptions also suffer from Rawls’ “burden of judgment,” the fact that reasonable disagreement over basic values is an inevitable feature of social life in diverse societies (pp.54-55). Since the burdens of judgment make universal agreement on the constraints of lawmaking unlikely, a fair-minded person would not insist that these constraints completely match her considered moral judgments. Why should her ego-centric perspective dictate for everyone else the proper constitutional constraints on lawmaking? Other fair-minded individuals have different, equally provable or unprovable, perspectives. Hence, the burdens of judgment make it highly unlikely that any substantive conception, requiring universal acceptance, can be the basis of what makes the law “publicly respect-worthy” (p.57).

Perhaps procedural norms should be given a second look. With this in mind, Michelman shifts the inquiry from what the laws of lawmaking mean in a democracy to which institution should decide the governing interpretations of these laws. Remember such interpretations must be democratic. The question for Michelman then becomes how should we understand the democratic basis of judicial interpretations of constitutional law? But again, why should the institution be the judiciary? The courts’ democratic pedigree is much less obvious than that [*544] of the elected branches. Of course, constitutional democracy supervised by the courts may simply be the worst form of constitutional review except for all the rest. Michelman resists this backhanded justification (p.62). So his inquiry seems to have reached a dead-end. Not quite. At this point, Michelman turns to Brennan as the best exemplar of constitutional democracy through the courts.

Brennan is the central jewel in Michelman’s pantheon of democratic theorists; but Michelman derives Brennan’s “theory” from his judicial opinions. Brennan, in Michelman’s view, was committed to the inherent worth and dignity of individual human beings and to an abiding respect for their political judgments (p.62). And Brennan expressed this commitment through a particular approach to constitutional interpretation, namely, that of a democratic liberal (p.64). As a democratic liberal, Brennan is committed to basic individual rights, constraining and nurturing majoritarian politics. But Brennan is more than just a democratic liberal; he is a democratic liberal committed to romantic constitutionalism and social emancipation (p.68). Romantic democratic liberalism embraces basic individual rights, as in Dworkin’s democracy as rights, as well as the relentless examination of social and personal values, as in Post’s responsive democracy. The romantic democratic liberal eschews dedicated or fixed values and instead seeks self- and context-transcendence (pp.68-69). This commitment to revisionism requires self-expression, which is both an “individual right of self-presentation” and a basic feature of any political system governing a diverse population (p.71). For romantic democratic liberals, conflicts in values give rise to the perennial examination and revision of tradition, as well as novel solutions to traditional constitutional controversies.

Michelman next examines several of Brennan’s judicial opinions to demonstrate their commitment to the singularity and independence of a person’s life in contradistinction to an encumbered communitarianism where group rights may prevail (p.91). Singularity and independence do not preclude encumbrances (p.123). All of us are situated in a particular society exhibiting certain customs and traditions. That is our lot. But the romantic democratic liberal takes these encumbrances and subjects them to comprehensive criticism and revision, at least as far as possible. Through this penchant for revision citizens may discover goods collectively that they could not know alone.

Michelman’s dialectic presents a formidable conception of constitutional democracy through the courts. However, his approach is not without difficulties. One major difficulty is that his dialectical methodology obscures and conflates the questions of political legitimacy. It is often unclear at any particular stage in Michelman’s dialectic, whether he is addressing the question of political legitimacy generally, the question of democracy’s legitimacy, the question of the compatibility of democracy and constitutionalism, or the question of the legitimacy of the courts as the appropriate institution for explicating the constitutional constraints on democracy. The issue, for example, of why an individual should respect a democratically grounded law of which she disapproves is a general problem for [*545] democratic theory not just for the theory of constitutional democracy. Indeed, the idea of constitutionalism is often given as the answer to the question of democratic legitimacy. Similarly, the question of whether constitutional constraints are compatible with democracy is applicable to all constitutional constraints, not just those decided by courts. In the end, Michelman’s failure to keep these questions distinct, or at least to explain explicitly how answers to these questions are inter-related, detracts from the power of his dialectic.

Finally, Michelman fails to take seriously enough the problems posed by unelected, virtually unaccountable judges interpreting the basic structure of a democratic system of lawmaking. Institutional checks on the legislature may be required. But that in itself fails to prove that courts are the best checkers. Michelman is certainly aware of this problem, but his answer is more perfunctory than convincing. Justice Brennan might have been a powerful constitutional voice; indeed, in some interesting sense, Brennan might have been a constitutional “framer,” as Michelman suggests (p.138); but who effectively checks Brennan? Article Five? The difficulty of constitutional change through Article Five is notorious, and without an effective means of formal constitutional change, some informal mechanism will inevitably take its place. Judicial supremacy as the mechanism of constitutional change permits the Brennans and the Scalias on the Court to go virtually unchecked. Self-government requires that some mechanism be capable of checking the checkers, and the electorate must effectively control that mechanism.

We certainly need a constitutional system that is capable of systemically re-considering the constitutional fidelity of ordinary laws. But in a republic, the ultimate authority must lie with the people or their representatives, and this is just as true in a democratic republic as it is in a majoritarian democracy. While a republic is more than a simple majoritarian democracy, the last word nonetheless should be left to the people. Depriving citizens of an effective last word seems to eliminate self-government from the idea of a republic.

Despite these objections, BRENNAN AND DEMOCRACY is rich in content. It illuminates the questions of political legitimacy in a constitutional democracy where courts determine the meaning of the laws of lawmaking. Michelman’s examination cannot fail to deepen our understanding of these questions even as it raises, as the tenor of his dialectic demands, additional questions about constitutional democracy and judicial supremacy.

CASE REFERENCES:

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

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



© Copyright 2005 by the author, Robert Justin Lipkin.

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EXPERTISE IN REGULATION AND LAW

by Gary Edmond (ed). Burlington, VT: Ashgate Publishers, 2004. 302pp. Hardback. $99.95/£55.00. ISBN: 0754624013.

Reviewed by Paul Teske, Graduate School of Public Affairs, University of Colorado at Denver and Health Science Center. Email: Paul.Teske@cudenver.edu .

pp.537-538

This book is an edited collection, coming from a 2002 conference in Canberra on the topic of expertise. Gary Edmond is a member of the law faculty at the University of New South Wales in Australia.

Edited conference volumes rarely exceed the sum of their parts, sometimes equal that sum, but most often present something less to readers. While there is much of interest in this volume, I find the latter the overall sense a reader is likely to glean from it. Part of the problem is the issues related to expertise are quite broad, in both legal and regulatory settings. Some of the book focuses upon very specific legal decisions about the admissibility of expert testimony in legal proceedings; other sections abstract into very broad philosophical questions of what expertise actually means compared to other forms of evidence; and some of the book is about specific examples of expertise in particular regulatory settings. Often these do not feel connected. Moreover, the analysis was not well served by the heavy dose of “30,000 foot” philosophical and sociological approaches; I expected some more political-economic or law-and-economic rigor to be attached to some of these issues.

Although the wide lens might leave the reader feeling unable to absorb the entire picture of expertise in a meaningful way, the advantage is that one can follow some of the many specific threads. Recent news reports suggest that “junk science” is often presented in legal proceedings for corporate or individual financial gain, and that scientific data can be misused for political advantage. The media’s approach to these issues certainly confuses citizens about the value, or even the existence, of true expertise. It is nearly as difficult for many scholars to sort through the relevant issues, and this book provides some nice examples and valuable reflections to better understand the problem.

Another element of the book that provides both advantages and disadvantages is the multi-national perspective. The primary focus is on Anglo nations (UK, US, and Australia) with somewhat similar legal and regulatory structures. But, there are important institutional differences across these systems, and unless a scholar is highly interested in the comparative aspects, the institutional focus of the book is a bit vague, even regarding legal and regulatory policy.

Individual chapters address expertise in the pharmaceutical sector, which has been a hot topic recently in the U.S., expertise in U.S. environmental regulation, health risks related to electric and magnetic fields, fingerprint expertise, DNA profiling, and ethical [*538] issues in expertise. One chapter presents an anthropological study of Aboriginal claims (which, although interesting, fits in least well of all the chapters). I found the pharmaceutical study (by John Abrahams) and the environmental study (by Marc Eisner) to be the most useful and interesting of these chapters.

Edmond is author or co-author of three chapters, which help to provide a somewhat tighter focus. Edmond gives substantial attention to the landmark U.S. Supreme Court decision, DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC. (1993), which provided judges with more autonomy to interpret the standards for allowing expert evidence into trial proceedings. The introduction and conclusion provide considerable material on the making of this decision, its broader implications, and the impact on subsequent cases. Jasanoff’s work on “the fifth branch” – scientists as policy makers – and Popper’s approaches to scientific reasoning figure prominently. Generally, this is an excellent demonstration of the strong interrelationship among politics, social context, and decisions about what constitutes useful and valid expertise.

EXPERTISE IN REGULATION AND LAW will be most useful to legal scholars interested in standards of expert evidence, although the analysis jumps between highly specific, on-the-ground examples and cases, and extremely general consideration of expertise as a social-philosophical phenomenon. Those more interested in regulatory issues will find the book too specific and legalistic at times, and too general and vague elsewhere. The book works best in the areas where the concrete and the abstract are better connected. This is hard to accomplish consistently with multiple authors, and it is an all too common problem in edited collections.

CASE REFERENCE:

DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC., 509 US 579 (1993).



© Copyright 2005 by the author, Paul Teske.

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THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY

by Vernon Bogdanor (ed.). Oxford: Oxford University Press, 2003. 816pp. Hardback. £55.00/$95.00. ISBN: 0197262716. 2004. Paper. £21.99/$29.95. ISBN: 0197263194

Reviewed by Thom Brooks, Department of Politics, University of Newcastle. Email: t.brooks@newcastle.ac.uk

pp.531-536

Vernon Bogdanor is one of the most important authorities on British politics. This collection no doubt benefits both from his scholarly acumen, as well as his considerable ties with similar major names in the field. The contributing authors reads much like a who’s who list of figures defining the study of British politics: John Curtice, David Feldman, Jeffrey Jowell, Robert Holland, Geoffrey Marshall, Paul Seaward, Anthony Seldon, Paul Silk, Robert Stevens, and Diana Woodhouse, amongst others contribute papers across eighteen chapters. At over eight hundred pages, this is a rather considerable volume exploring all issues of British politics from issues in Britain’s electoral system and governing structures to Britain’s relationship with Europe and the Commonwealth.

There is to my mind no other work that so comprehensively considers the British constitution in all its richness. As the Queen is quoted at the beginning of the volume—“The British Constitution has always been puzzling and always will be” (p.v)—political and legal theorists (and not only Americans) have been puzzled by Britain’s unwritten (or, in the words of Bogdanor, Britain’s “uncodified”) constitution (p.5). Several items are far from clear in such a political system. For example, as Bogdanor notes, what exactly is the role of the Cabinet? We learn that the modern Cabinet did not begin to exist in any identifiable form until the 1900s. Before then, Bogdanor says, “[a]t the beginning of the twentieth century, it still had no regular time of assembly, nor fixed place of meeting, the date of meeting being fixed, usually at short notice, by the prime minister. There were no rules of order, no quorum, no agenda and no record for minutes of what was decided; and it was considered contrary to etiquette to take notes at a Cabinet meeting” (p.9).

So why keep such a system with such problems? Well, for one thing, it has been felt that just such a system’s strength is in its flexibility and relative responsiveness to emerging situations, within certain constraints.

I cannot discuss all eighteen chapters here, although I will discuss several that may be of particular interest to the American readers of the LAW & POLITICS BOOK REVIEW.

Geoffrey Marshall discusses “The Constitution: Its Theory and Interpretation” in the second chapter (pp.29-68). Marshall asks, “In which sense then does the United Kingdom have a constitution?” (p.31). He comes up with four views of what a constitution “is”:

(a) the combination of legal and non-legal (or conventional) rules that [*532] currently provide the framework of government and regulate the behaviour of the major political actors;

(b) a single instrument promulgated at a particular point in time and adopted by some generally agreed authorisation procedure under the title “constitution” (or equivalent rubric such as “basic law”);

(c) the totality of legal rules, whether contained in statutes, secondary legislation, domestic judicial decisions or binding international instruments or judicial decisions, that affect the working of government;

(d) a list of statutes or instruments that have an entrenched status and can be amended or repealed only by a special procedure (p.31).

When looked at against these criteria, the British constitution is not that odd and mysterious after all. It clearly satisfies conditions (a) and (c), although not conditions (b) and (d)—although Britain did have a constitution in sense (b) under Oliver Cromwell. The “unwritten” constitution is really a reference to the fact that Britain’s constitution is not a particular document with “historical significance” (p.31). In other words, it is perhaps not as peculiar as it might seem at first.

All that said, there is one particular worry for legal theorists as a result of an unwritten constitution and that is the fact that “[t]he idea of a codified constitution, or even fundamental laws, by which executive or legislative decisions might be judged, was alien to both the royal prerogative and parliamentary sovereignty” (p.340). That is, many British judges have struggled with the question of whether it can be possible to declare a parliamentary statute “unconstitutional” given the royal prerogative and parliamentary sovereignty (p.341). For example, as Lord Halsbury says in WEBB v. OUTRIM (1907), “That is a novelty to me. I thought an Act of Parliament was an Act of Parliament and you cannot go beyond it . . . I do not know what an unconstitutional act means.” This fascinating concern is addressed by Robert Stevens in his chapter “Government and the Judiciary” (pp.333-72).

What has changed over the twentieth century (amongst many other things) is that the judiciary has attained a role of greater prominence in the British constitution. For instance, today the Law Lords can declare Acts of Parliament unconstitutional. (In addition, the European Court of Human Rights can do likewise and strike down Acts of Parliaments in a further interesting twist.) An additional way in which the judiciary has become more important is in their being used—with growing frequency—to chair commissions and committees, as they have become “increasingly seen as ‘impartial’ and capable of ‘objective’ solutions” (p.345).

Indeed, most recently readers may remember Lord Hutton’s enquiry into the circumstances surrounding the death of Dr. David Kelly. Dr. Kelly had been identified by the BBC’s reporter Andrew Gilligan as the source for the claim that a major intelligence analyst had told him that the Prime Minister (with particular help from his director of communications and former tabloid editor, Alastair Campbell) had “sexed up” the government’s dossier detailing Iraq’s weapons capabilities and alleged weapons of mass destruction (now known in Britain as “the dodgy dossier,” [*533] as it had plagiarised a PhD thesis written in the early 1990s found online). Dr. Kelly worked at the Ministry of Defence and was Britian’s top Iraq weapons inspector. Of course, this inquiry was thought to do some damage to the judiciary’s credibility as it was thought Lord Hutton—himself a former “Diplock Court” judge (a judge who sat juryless criminal trials of suspected IRA members during the Troubles)—too favourably disposed towards governments generally, and his report was often thought a whitewash job, as it laid no blame with the government surrounding the circumstances of Dr. Kelly’s death (which went across the grain of widespread public opinion from both left and right). That said, I would doubt the judiciary was affected too much from this enquiry (Lord Butler’s investigation shortly thereafter into the intelligence used to justify the war in Iraq was more critical of government) given the already divisive nature of the context, the deeply unpopular Iraq war. I only mention this case as the most recent and best well known use of judges as “impartial” and “objective” authorities to address questions of trust and public accountability. It is a welcome change for the better. While many may well disagree with the conclusions of various Law Lords, few would want politicians to administer these commissions and committees, as well as judicial enquiries, instead.

Much of the chapter—like most of the chapters in the volume—provides a masterful point-by-point analysis of the various changes over the twentieth century. One interesting development was the move away from formalism in the 1970s. Legal formalism had been the school of thought within which British judges had worked. However, its end is captured well in the following passage by Lord Reid in 1972. He says:
There as a time when it was thought almost indecent to suggest that judges make law—they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave, there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when a judge muddles the pass word and the wrong door opens. But we do not believe in fairy tales anymore (p.354, also see Lord Browne-Wilkinson’s quote on pp.364-65).


This new judicial view of their own role led to a number of changes, including the restoration of procedural due process, and moved towards adding a doctrine of substantive due process. Of course, it is difficult to tell how much judges were influenced by important legal philosophers, such as Ronald Dworkin, who have forged new ground in pointing towards just such a position.

One particular peculiarity of the British constitution is the position of Lord Chancellor. The position is unique in that the Lord Chancellor plays major roles in all three branches of government: he (it has thus far always been a man) sits in the House of Lords (the legislature), sits in the Cabinet (the executive), and often sits as a judge in both the Lords and Privy Council (the judiciary). Of course, what is problematic is the fact that the position of Lord Chancellor seems to violate the principle of the separation of powers. While Stevens does note that the British constitution seems to be working well, I think he underplays potential problems [*534] with the Lord Chancellor, especially in matters before the European Court. Stevens observes that the New Labour government, under Tony Blair, has been active in seeking to reform the position, but the government has not done too much as of yet. (That said, it is true that there were plans to scrap the position and replace with something else, more respectful of the separation of powers, but this more radical reform—which was met with much public derision—is on hold for the foreseeable future.)

Another chapter worth mentioning is David Feldman’s fine piece on civil liberties (pp.401-81). At eighty pages, it is a real tour de force and covers quite a broad sweep of ground effectively. Feldman discusses women’s rights, adult suffrage, Crown privilege, free speech, pornography, prostitution, terrorism, and a range of other issues. Of course, the twentieth century saw a number of significant developments in civil liberties. For example, the Royal Commission on Capital Punishment, set up in 1949, staged the way for the abolition of the death penalty with its report in 1953, although the death penalty is only abolished for crimes like murder in “normal times”—i.e., when Britain is not at war. Another significant change was the British Nationality Act of 1948 which created British Commonwealth citizenship for members of the Commonwealth. Instead of bringing a clearer coherence to what it meant to be “British,” as it were, the act “led to fears of uncontrolled immigration” (p.429). In some sense, this sense of “British-ness,” if we can so call it, has become a matter of increasing concern to many citizens of the United Kingdom with the onset of devolution, creating regional assemblies in Wales and Scotland. Northern Ireland has had its own assembly for a while now, although its activities are currently suspended. Now only England has all its decisions made in Parliament, leading to calls for a future regional assembly in the North of England (which failed a referendum with voters).

Perhaps a move backwards for civil liberties was what Feldman describes as “the assault on the right of silence in England and Wales” (p.463). Here he has in mind the Human Rights Act of 1998, which allows judges and juries to draw adverse inferences from a defendant who exercises the right of silence and refuses to take the stand. This idea has its precedent in British law, in particular, in Northern Ireland where this was instated in 1988. Indeed, this aspect of the Human Rights Act is particularly regrettable, and one can only hope that there will be a change in the law soon. No doubt future governments will be slow to make any change, as they may think that it will enable higher conviction rates. Only the future can tell.

However, the 1998 Human Rights Act brought about another change that is largely positive; it incorporated the European Convention on Human Rights (ECHR) into British law. Thus, the European Court of Human Rights can decide British cases, and the UK is obliged to follow its decisions. This has had a most profound impact on recent legislation enacted to help Britain avert terrorism attempts in the wake of the 11th of September, 2001 atrocity in the United States: namely, the European Court ruled one by one that virtually every aspect of the government’s anti-terrorism legislation violated the human [*535] rights of British (and European) citizens as laid out in the ECHR.

A further concern is that the European Court ruled in a Dutch case that criminals have a right to be given a reason for their conviction—beyond a statement “well, you’ve been found guilty,” and the like. Much of Europe does not employ jury trials and so this decision has not been seen as particularly problematic for those countries, such as France, Germany, and Italy. However, many countries, including Sweden, Belgium, Ireland, and not least the UK (where the modern jury trial began), have become somewhat nervous about the implications of this decision on their legal systems. At the moment, there have not been any calls to end jury trials; however, some scholars are beginning to lobby for major reforms in the jury system (and, in particular, arguing that they should give “special verdicts” laying out their case for why a defendant was guilty) and, indeed, for abolition of juries altogether. For the moment, the right to trial by jury looks very safe, as it rightly should be.

Finally, a few words are warranted for what might be the most peculiar institution in the British constitution from American eyes: the British monarchy. Rodney Brazier writes a very engaging chapter on the topic, detailing the monarchy since 1900 (pp.69-95). The current monarch, Queen Elizabeth II, is often held up as a model constitutional monarch. However, in Brazier’s not unreasonable view, he doubts whether this is the consequence of her effective leadership (and restraint) or of constitutional amendments. It is true that the queen performs many important functions. For example, Brazier notes:
She is a symbol of the nation, a focus for national loyalty transcending political partisan rivalries. As with her predecessors, the queen personifies the state and the nation, their history, stability, and continuity. The sovereign recognises success and achievements, especially through the honours system [knighthoods, and the like], and encourages citizens to do good by each other (pp.70-71).


However, the monarch is more than this. He or she was more powerful in the early twentieth century than at its end. For example, George VI met weekly with Winston Churchill for lunch on Tuesdays by 1940, and they formed a close pair. These meetings continued even after the war (p.79). Not all advice shared by the king with his prime minister was poor. For example, George VI advised Churchill to not “set to sea with the Allied forces on D-Day,” a warning Churchill followed (p.80).

The monarch does continue to enjoy a number of powers, called “the royal prerogative.” Often these powers take effect upon advice from government ministers. For example, when Queen Elizabeth gives her annual Queen’s Speech detailing the future plans for her government, it would be hard to imagine her scripting the document herself, dictating what the government will do (instead of the speech being drafted by the government itself, as it now customarily does). However, there are a number of powers the monarch retains, including the ability to insist on (or refuse) the dissolution of Parliament and to call for elections, the ability to refuse royal assent of Acts of Parliaments, and [*536] the ability to dismiss ministers (p.81). While it is difficult to imagine any modern monarch taking up these powers against the wishes of government ministers, it is equally difficult to imagine a future (or the present) government enacting legislation to limit or abolish the royal prerogative. There is simply no will to do so amongst government, its opposition parties, or the public.

One final thought (and criticism) should be noted. I found a particular aspect of this volume particularly annoying: the poor copy-editing. Sometimes poor copy-editing results in misspelled words or incongruous notes and/or bibliographical entries, but that was not the worry here. In this volume, the copy-editor does a very poor job indeed at picking up grammatical errors. In nearly every chapter, different quotation marks are used, sometimes before or sometimes after different forms of punctuation. Usually, the grammar is correct, but often a single page will have two different grammatical forms running simultaneously. In fact, the first example occurs on page 1, and, as I say, the problem recurs throughout. What is most disappointing about that is simply that, of all the weaknesses of any piece of work, the one problem that is most unnecessary and easiest to avoid—not least for a publisher of the calibre of Oxford University Press—is poor grammar. Such a problem distracts from the merits of the arguments and the otherwise erudite essays by these distinguished voices. Bogdanor gives us no hint as to the copy-editor’s identity, but he or she has done a truly terrible disservice to an otherwise brilliant collection.

Bogdanor’s THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY is a true achievement and will, perhaps, become the final word on the subject—at least for the foreseeable future. In addition, it has the remarkable feature of being quite useful not only to all students (whether undergraduates or postgraduates) but to the academic community itself. I have gained much from its pages and have little doubt fellow colleagues will benefit likewise.

CASE REFERENCE:

WEBB v. OUTRIM, [1907] AC 81 (Aus. 1906).



© Copyright 2005 by the author, Thom Brooks.

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GOOD GOVERNMENT? GOOD CITIZENS? COURTS, POLITICS, AND MARKETS IN CANADA

by W.A. Bogart. Vancouver: UBC Press, 2005. 264pp. Cloth $85.00. ISBN 0-7748-1164-1.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: Richard.Brisbin@mail.wvu.edu .

pp.527-530

If there is a common theme in most Canadian scholarship about Canada, it is the question, “What is it to be Canadian?” Canadians might not be paranoid schizophrenics, as asserted by the premier Canadian novelist Margaret Atwood, but they certainly are introspective about their collective identity. This book by University of Windsor law professor, W.A. Bogart, exhibits the introspective strain through his answers to the questions about the nature of Canadian public life that comprise title of his book. In providing the answers to his questions, he has produced a book of interpretation and opinion that reflects the tradition of adversarial prescriptive argument rather than a book that reports new social scientific research.

Bogart’s thesis is that “momentous” change is underway in Canada. The change threatens the Canadian tradition of good government and good citizenship. The change brings alienation from the Canadian legacy of civic interaction, deference to elites and representative political decision makers, openness to regulation, collective public services, and communitarian policymaking. With the erosion of the traditional consensus comes less orderly and just government. As the sources of such change he posits the expansion of a politics of rights, the failure of representative institutions, and a change in markets and ideas about economic rights.

In a chapter devoted to rights, Bogart describes the end of a “marginal role” for courts in Canadian public life. He cites the Charter of Rights and Liberties of 1982 as the key factor in the emergence of a new role for the judiciary. The Charter, when coupled with the development of a practice of “rights talk” by the legal profession, allowed the Canadian Supreme Court to adopt a group rights orientation. After diverging into an assessment of the utility of such an orientation toward litigation on specific issues using evidence from the United States, he discusses the effect of the rights orientation of Canadian courts on representative politics. After a critique of other assessments of the Court’s actions on rights issues, he concludes that, “Our conception of individuals and their relationship to each other and to the state has been transformed” (p.42). The result, he charges, is the “myth of rights . . . . pulls people farther from a commitment to government institutions and the public welfare” (p.46).

Turning to representative government, Bogart documents a decline in public trust in parliamentary politics. He attributes the decline with the failure of the federal government to resolve the constitutional issues about the status of [*528] Quebec, the problems of First Nations peoples, the social isolation of new immigrants, and the inefficiencies of welfare state and regulatory programs. In contrast, he notes greater confidence in courts. Then he argues that the disenchantment with parliamentary politics has induced various “critical citizens” and citizen groups to seek their policy objectives in the courts.

In his chapter on markets, Bogart focuses on the influence of economic globalization on Canadian politics. He notes that the development of free trade policies, changes in technology and productivity, the decline of unionized labor, and wage stagnation provide evidence of a more laissez-faire, market-oriented economic life in Canada. With these trends, he finds the influence of representative institutions weakens. Also, he contends, the judiciary has offered mostly “symbolic victories” to the groups disadvantaged by such economic trends. Instead, as with the ideological language of free marketers, the judicial interpretation of rights reinforces the idea that government is bad.

Having set forth the causes of change in Canadian public life, Bogart then offers four examples of the results of change: First Nations issues, the Internet, education, and the treatment of older citizens. The chapter on First Nations argues that proponents of aboriginal national rights, including the judiciary, and those who argue aboriginals should share the same rights as all Canadians or become assimilated have created “fractiousness and litigation” rather than a reasonable collective effort to address the poverty and deprivation suffered by First Nations peoples. His discussion of the Internet addresses the implications of cyberspace for deliberative democracy. However, he is pessimistic that the Internet can provide an effective means to restore representative democracy or assist in “the hard labour of making representative politics strive for its ideals” (p.142).

A chapter on public education takes on a variety of issues–minority language education, the quality of education, voucher programs, the direct public subsidization of private education, and special needs education. Through a review of federal and provincial policies and judicial decisions, Bogart points to the injection of market ideas and rights talk into educational policies. These policies, he asserts, have stripped resources from public education and undercut equal access to the “public good” of education by all Canadians. Turning to the implications of an aging Canadian population for health and social policies, he finds rights talk has exposed discrimination against seniors. However, market forces and rights litigation have not provided economic dignity and the public goods that the older population requires.

As a solution to these problems, Bogart’s conclusion curiously poses a new task for courts. “They need to emphasize the limits of litigation and the boundaries of the market in tackling complex social, economic, and political issues. They ought to say that rights are essential to a free and democratic society but that rights are not enough. They should declare the critical value of good public goods” (p.202). Additionally, they need to support and vibrant representative and participatory [*529] government and generally build trust in government.

Bogart’s often nostalgic introspection about the state of Canadian public life raises interesting questions about the role judges play in the constitution of public life. These questions are not new ones, but he makes them central to his prescription for the future of Canada. Although his insights are suggestive, his examination and his prescription raise questions.

First, are judges and rights talk, including ideas of laissez-faire economic rights, really the primary cause of pathologies in Canadian public life? Bogart could provide much more hard evidence about the causes of the asserted decline of representative institutions, such as the Canadian parliament. Have courts and free market ideas really caused the loss of confidence in Canadian legislative bodies’ capacity to provide collective civic goods and build civic consensus? Canadian legislative institutions might be less legitimate for the public, but they still have an important policymaking capacity that judges and private bodies apparently have not offset. Despite a few issues such as gay rights, judges in Canada still tend to react to what legislators have done about First Nations, schools, and the aged. They do not often dream up new policies. Parliaments still structure how markets operate and the scope of economic rights. Therefore, without solid empirical evidence about the causes and effects of decline in public support for parliaments, more information about why persons use courts rather than parliaments, and information about how frequently judges generate important policies, it is not possible to accept fully Bogart’s assertions.

Further, even if the reader accepts Bogart’s argument that legislative institutions are in disarray and less capable of effectively devising public policy, why is it the case? Perhaps the disarray might be caused by the weakness of political parties rather than by rights talk and courts. By ineffectively stating a policy agenda or succumbing to the interests of campaign contributors, parties have undercut their ability to represent, define policy options, and make policy. Alternatively, with parliamentary links to popular sentiments in disarray, there is another reason Canadians have turned to other sources to secure their interests, including courts and the less regulated market that he depicts. Therefore, it could be argued that judges and corporations fill in after the legislature acts, but they do not cause the disarray in representative institutions or distrust in politics.

Regardless of whatever is transpiring in the practice of Canadian civic life and the meaning of being a Canadian citizen, Bogart is correct that a different political role for courts has emerged in Canada. Whether it will work for good or ill raises a second question: Can judges reject the current rights-oriented direction of their decisions and adopt his suggestion that they do much more to support civic ends? In his concluding prescription he offers little evidence that judges can or will change their approach to rights or whether courts are truly capable of building public trust in parliaments. Also, his remedy neglects whether the global spread of corporate power can be offset by less rights talk [*530] from courts or by more legitimate and trusted parliamentary institutions.

For this reviewer, the trends in Canadian life seem to be less determined by rights talk and less amenable to judicial solutions than Bogart suggests in his book. Traditional Canadian identity and civic life instead might have already succumbed to global corporate economic and ideological forces well beyond the control of Canadians and their judges. Nonetheless, Bogart offers an important thesis about the power of judges and rights that demands further inquiry both in Canada and elsewhere in the West. Or, to what extent can judges and rights talk reshape regime politics and civic life?



© Copyright 2005 by the author, Richard A. Brisbin, Jr.

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PUTTING LIBERALISM IN ITS PLACE

by Paul W. Kahn. Princeton: Princeton University Press, 2004. 336pp. Cloth. $29.95 / £18.95. ISBN: 0-691-12024-2.

Reviewed by James Magee, Department of Political Science and International Relations, University of Delaware. Email: jjmagee@udel.edu .

pp.523-526

At the end of the 19th century Sir Henry Maine summarized the history of British law in a pithy expression: “from status to contract.” Feudalism had gradually been supplanted by a more liberal, capitalist system in which legal rights of “contract” offered a means to escape from a fixed status and climb to a richer life through the open market. Contract has also been the concept spun by political theorists for hundreds of years to explain the emergence of the liberal state and its obligations—from Thomas Hobbes on down. “We the people” made a deal with a powerful “state” to protect us from the anarchy and brutality of the “state of nature;” in turn, we surrendered some of our freedom inherited from the state of nature and agreed to obey decisions of the state. The terms of the contract have changed with the values promoted by the theorist. For Hobbes, the objective was order; John Locke advocated property rights; John Rawls sought justice. In this latest of his several books, Paul W. Kahn, of Yale University Law School, fundamentally rejects the social contract foundation of liberalism. The state does not exist merely to guarantee rights or justice. He reconstructs and redesigns liberalism with a mélange of fascinating analyses of intellectual thought and pure myth and renders an explanatory principle more eloquent and moving than Maine’s succinct, impersonal conclusion about law: “Attachment to the political community is a matter not of contract but of love” (p.12).

The book’s title suggests hostility to liberalism, but Kahn completely accepts the core ideals of individual dignity and equality, ethnic and religious diversity, representative but limited government, a regime of rights, the rule of law, an independent judiciary, and well-regulated but generally free and open markets. “These liberal values do not, however,” he says, “explain the conditions that bind a community into one sustained historical project. They do not explain why citizens will put survival of a particular political community ahead of their own survival” (p.10). Later in the book he is even more critical: “liberalism is a political theory without any understanding of politics” (p.182). The massive body of liberal theory that has been produced from Hobbes to the present is not per se wrong, but fundamentally incomplete.

Weaving in and out of legends, folklore, literature, history, plays, law, and political discourse, Kahn analyzes Supreme Court decisions, the biblical myths of Adam and Eve, Abraham and Sarah, the plays of Sophocles, Jesus on the cross, Shakespeare, and medieval, modern, and contemporary thinkers like Hannah Arendt and John Rawls. Any reader of this book will quickly concur when the author says: “I am aware that my argument is not easy to follow” [*524] (p.21). At the risk of misstating his elaborate and complex argument, here is an encapsulation of the central message of his theory:

Jesus on the cross reflected sacrifice, love, redemption, revelation, and grace. Before Christ these always existed in the human condition, both in actual experience and in the aspirations of writers, thinkers, playwrights, religious leaders and others who were searching for ultimate meanings about human life and death. Though somewhat sporadically, Kahn devotes quite a bit of his analysis to pre-Christian ideas, but the book’s theoretical coherence seems to take root and build with the image of Christ on the cross. From that symbol emerged the Christian church; the body of Christ became the body of the church destined to be universal and the central organizing mechanism for human life on earth (at least in the western world, where liberalism was born). Sacrifice everywhere augmented the church’s stature and growth; a star-studded cast of martyrs demonstrated affinities with Christ and his teachings and produced a litany of saints.

Kingdoms arose, and the king’s body became the sovereign “mystical corpus of the state” (p.89). From the religious wars secular states emerged. The world appeared after the Peace Westphalia as a space of nation-states, and the church slowly receded as the forger of human communities knitted together by allegiance to Jesus and the meaning of his crucifixion and resurrection. Kahn writes: “The domain of sacrifice shifted from that of religious resistance to that of political patriotism. . . . Western nation-states became grand institutional structures for the sacrifices of their citizens to the idea of the necessity of the state’s continued existence.” The “state” became the secular successor to the church. Ultimately, through revolution—the “will” of “the people”—liberalism appeared and monarchies declined, and “we the people” became the transcendent sovereign, and the written expression of our will became enshrined as revelation in governing instruments such as the Constitution of the United States: “The constitution preserves that sacred appearance of the popular sovereign and organizes political life around it” (p.161). Reason does not underpin the liberal state, because the sacred is always beyond reason. Instead, the politics of modern nation-states, like the Christian world from which they materialized, is filled with “symbols and miraculous appearances” (p.164).

The secular state and its liberal descendant developed, not through “reason” or “contract,” but through revolution expressing the sovereign will of the people, and the liberal state entered history bearing the experience and traditions of Christianity. Love and sacrifice are the touchstones of a meaningful life: “These are the critical elements of political experience, yet they fail to appear when we begin with the Hobbesian state of nature or the Rawlsian veil of ignorance” (p.64).

Kahn canvasses a staggering portfolio of issues. There is a chapter (called “The Erotic Body”) on love, romance, sexuality, and pornography. Unlike Catherine MacKinnon who condemns pornography as the manifestation and perpetuation of power of men over women, Kahn sees it a “fantasy of freedom” that temporarily liberates us from powerlessness and the burden of [*525] our ordinary lives (p.207). The first order of politics is to domesticate the erotic, “the turning of love toward the labor of social and familial reproduction” to maintain the “intergeneration project that is the polity.” Pornography is closely associated with political revolution and is viewed by the state as an act of “political rebellion” (p.226). Liberal theorists confine love and sexuality to the private domain, outside the realm of the state, which “pushes love to a contractual model of relationships. Liberalism is a political philosophy of a loveless world” (p.141). For Kahn, love is the base of the nation “which is a political organization of human sexuality” (p.181). Love and sexuality produce families and children, the future of the state, some of whom will be sacrificed for the state’s continued existence. “The modern nation-state demanded of families that they give up their children for the sake of the state. For the most part, families have done so” (p.202). Sacrifice and love are the heart of both politics and family: “To imagine a family in which sacrifice was not ordinary is to image a dysfunctional family; the same is true of the state. Liberalism, however, is speechless in the face of sacrifice” (p.224).

This intriguing book is filled with challenging ideas and supplies some missing ingredients of the intellectual groundwork of liberalism. Like most grand scholarship of this kind, however, it provokes more questions than it adequately answers. For example, while the great tradition of Christianity can help to explain liberalism, liberalism also selectively screened that tradition, for not all of the church’s belongings were inherited or accepted by the successor state system. The imperialist church brought the crusades, and through ghettos, expulsion, and death it punished heretics, Jews, and other non-believers. Science was retarded by a church that silenced and jailed Galileo. Kahn does not address that side of Christianity nor does he explain how liberalism eventually sifted the good from the bad within the modern liberal nation-state. Excluding these ugly traditions has more to do with reason and the Enlightenment than with love and sacrifice.

Kahn is astounded to see that liberal theorists have ignored sacrifice even in the face of the mass slaughter and sacrifice that characterized the twentieth century’s global wars: “one would never know that the modern nation-state has been the site of endless passion and sacrifice for ultimate meanings” (p.93). To Kahn this is evidence of the centrality of sacrifice, but perhaps these horrors were no more than the Hobbesian state of nature on a global scale that has since been less brutal and more harmonious. Moreover, sacrifice may describe the motives of suicide bombers and radical Islamic fundamentalists, but neither Kahn nor any liberal will claim that liberalism underlines the purpose of either of these groups.

Finally, immeasurable sacrifice is given by those sent to fight war in Afghanistan and Iraq, but most Americans have been asked to sacrifice very little (even their taxes have been reduced as the country braced for a seemingly endless war against terrorism and ostensibly in the name of liberalism itself). Volunteers for military service are harder to find, and suggestions of a military draft amount to [*526] political suicide. Aside from occasional reports about Iraq, TV news in America—the source for most Americans—is consumed with sensational sideshows that often border on the vulgar and irrelevant. “If citizens refuse to see themselves as the material bearers of the popular sovereign, then the nation-state can quickly become a mere abstraction. Formally, it may continue, but political life ceases for its population. . . . The material reality of the state is not its geographic reach, but the bodies of its citizens” (p.274). If Kahn is right about sacrifice, we should expect more from citizens and their political leaders.



© Copyright 2005 by the author, James Magee.

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CORPORATE GOVERNANCE IN GOVERNMENT CORPORATIONS

by Michael J. Whincop. Aldershot, England & Burlington VT: Ashgate Publishing Ltd., 2004. 258pp. Hardback. $99.95/£55.00. ISBN: 0 7546 2276 2.

Reviewed by Daniel J.H. Greenwood, SJ Quinney Professor of Law, S.J. Quinney College of Law, University of Utah. Webpage: http://www.law.utah.edu/greenwood

pp.518-522

Michael Whincop’s monograph begins with a summary of law and economics theories of the firm and a useful survey of the current state of quasi-independent government controlled business corporations in the English speaking world. The core of the book reports the results of a questionnaire-based study of Australian governmental corporations. His surveys, consisting mainly of multiple choice questions of the “agree-don’t agree on a scale of 1 to 5” type, were submitted to 55 current and 66 former board members of 22 governmental corporations organized under the Queensland Government Owned Corporations Act of 1993. They cover a range of issues including managerial and directorial appointment, compensation, independence, and relations with the governmental shareholders. This, then, is a case study from the perspective of one role only of a limited sample of governmental corporations in one corner of the developed world. The book is filled out with some suggestions for reform of governmental corporation governance informed more by the theoretical imperatives of law and economics models than by any of the reported empirical results. Generally clearly written, the book is unfortunately marred by typographical errors (pp.15, 26, 76, 81, 86, 92, 130, 155, 157, 190) including one instance where reported values appear to have been reversed (p.81).

Despite the limitations of the small sample and limited questionnaire, I found the book an interesting and important addition to corporate governance scholarship. Political scientists, lawyers and corporate governance theorists puzzling about the relationship between reality and the theoretical models of the firm used in corporate law and related fields will want to consider the views of these participants in a deviant form.

Whincop works within the dominant – but increasingly unsatisfactory – paradigm of corporate law scholarship, which views corporations as private economic actors that, as a normative matter, exist to make as much money as possible for their shareholders (in their role as shareholders, neglecting other relationships they have with the firm). Markets, in turn, are expected to ensure that maximizing this narrow view of shareholder interests is also in the social interest: firms seeking to maximize their residual (which the model, oddly, contends is the same as maximizing shareholder return) will seek to minimize their costs and maximize their returns – i.e., to produce attractive products as efficiently as possible. The major concern of the law, on this view, is to ensure that the firm’s managers operate the firm in accordance with these norms of shareholder primacy and profit maximization, without succumbing to [*519] the temptations of mixed loyalties or risk-aversion.

Governmental corporations (GCs) by their nature challenge almost every assumption of the dominant paradigm.

First, of course, in the English speaking countries, they exist almost exclusively in areas where there is broad consensus that ordinary market processes do not reach acceptable results. Utilities supply necessities in monopolized markets or at below market costs. National reserve banks and Ginnie Mae overcome informational failures, providing credit where non-governmental entities would not. The general ideological presumption that private profit maximization is also social welfare maximizing is simply untenable when, as is often the case in GCs, the corporation has a monopolistic lock on essential services or otherwise was formed specifically to respond to market failure.

Whincop reports that, perhaps in reaction to the collapse of the post-war British model that subjected nationalized industries to intensive ministerial control with little market responsiveness (p.25), the Australian model has sought to create broad areas of firm autonomy, to make explicit where market signals will be overridden, and to account for them explicitly (rather than relying on implicit cross-subsidization within the firm). This is done through negotiated agreements with the relevant ministries: Statements of Corporate Intent (SCI), setting out goals to be met (as an equivalent to internal evaluation mechanisms and stock market pricing signals) (p.31), and Community Service Obligation (CSO) agreements, providing for explicit subsidy of services to be delivered at below-market prices (p.33).

Although Whincop is not centrally concerned with whether firm directors are aware of conflicts between market pressures and alternative understandings of the public interest or how they deal with them, he does report that these agreements are generally negotiated between the board and the relevant minister (rather than between the two bureaucracies) (p.130) and that a substantial minority of directors view them as basically meaningless, with no consequences if they are violated, especially when the minister is not involved in their negotiation (p.133).

Second, the standard model postulates role-bound shareholders interested only in economic returns to shareholding. It is harder to imagine that the shareholder of these firms – in the Australian model, the ministers of the Treasury and the relevant ministry – have such narrow concerns. To be sure, the human shareholders of ordinary business corporations also have multiple and conflicting interests (many, after all, are also employees or pensioners of the firms in which they hold stock), but in practice our financial intermediaries ordinarily will filter out those other interests. Even if I take a broader view of my interests, my mutual fund manager is unlikely to survive unless he focuses strictly on increasing returns to the shares he manages. Governmental corporations, in contrast, put the mixed interests of shareholders front and center: the cabinet minister shareholders of these Australian governmental corporations would be derelict in their duties if they encouraged their charges to profit-maximize at any cost. In the [*520] government corporation, as Whincop states, the “single objective function--maximization of profits--simply disappears” (p.10).

Interestingly, Whincop reports that half of his directors nonetheless believe that their primary duty is to cause the firm to profit-maximize, and only 28% see acting in the interests of Queensland as a whole as their job (p.89) . Even though these firms are in businesses where maximum profit is not in the social interest and have a shareholder that is not interested in maximum profit, directors still accept profit as an imperative. Thus, the profit maximization imperative appears to function on a moral, ethical imperative – not as an expression of personal interest, adopted “interest” of a role-constrained client, or even as a proxy for social interest. Whincop no doubt would disagree, but he appears to provide additional evidence that the values of homo economicus are learned, not innate, and once learned, are applied even beyond their rational sphere.

Third, these firms are entirely exempt from the market for corporate control. While these firms are less likely than ordinary business corporations to have the self-appointed board of the Berle and Means model (p.69), and indeed directors are frequently replaced – most commonly when the relevant ministry changes party (p.106) – still, this is not a grove in which “at the end of every vista, you see nothing but the gallows.” (Burke, Reflections on the Revolution in France (1790)) – the strongest market incentives are missing. In publicly traded corporations, declining financial performance is rapidly reflected in declining stock price that invites takeover; here, directors answer to a political boss for whom short-term financial projections are likely to be less salient. If, as the dominant model claims, the key determinant of ordinary publicly traded business corporations is market pressure, these firms should operate radically differently from standard financial-market controlled firms. In contrast, if the central determinants of agency behavior are sociological or consequences of the internal incentives of bureaucracies, they may be quite similar to ordinary firms, particularly if they function according to private rather than public norms on matters such as hiring and tenure, public regarding-ness, conflicts of interest, working culture and the like.

Interestingly, despite his conclusion that governmental corporation boards operate “in a manner quite different” from business corporation boards (p.195), my reading of Whincop’s survey evidence does not show any glaring differences. (To some degree, this interpretive difficulty is a problem of experimental design: Whincop provides no evidence at all about his implicit control group – he did not survey directors of non-governmental firms). For example, his directors believe that formal educational qualifications and managerial skills are key qualifications for directors, while political party membership and experience are not (p.81): suggesting, like their views on the goal of the firm, that they see these firms as more like the business than the governmental sector. Nor does it demonstrate raging discontent among the directors; for example, proposals to increase board representation of community, labor or managers, or conversely, to shrink the board overall, were all rejected by the [*521] sample (increasing community representation receiving the most support) (p.83).

Moreover, the survey does demonstrate consistent differences between the views of directors with private sector experience and those without. Thus, while most directors view their firm as having sufficient “freedom to maximize workforce productivity” (presumably at the expense of values that might not show up in productivity measures), directors with private sector experience are far less positive (p.175). Whincop interprets this difference as reflecting the private sector directors’ “greater experience” (p.176), but it seems more plausible that it reflects different acculturation, that the difference is one of values rather than empirical perceptions. Directors out of the private sector are more likely to place a higher value on maximizing measured productivity and less on competing values such as social service, worker satisfaction, equitable treatment and equal access, or environmental and quality issues that are harder to measure.

Finally, the standard theory tends to assume that shareholder control is relatively unproblematic, not least because shareholders are modeled as simple, identical fictions with only a single interest, readily visible to any competent observer. Here, however, the shareholder is a governmental minister standing in for the entire citizenry: it is impossible to ignore the reality that these shareholders (like all citizens) have values and interests outside the stock market. As Whincop points out, the government is not only shareholder, but also customer, regulator, lender, supplier, neighbor – just like us. Here, the complexity of social demands on the corporation cannot be ignored. Whincop theorizes this as creating “costs of governance” (in addition to the more conventional “agency costs”) and quite correctly emphasizes the need to consider the problems arising from unclear and conflicting agendas at the shareholder (and political/social) level (p.11).

Whincop views the governmental corporation’s deviance as potentially troubling. In his recommendations he seeks ways to focus ministerial attention on narrow financial success rather than broader social (or narrower political) values – for example, by increasing the influence of the debt market (p.191), by a two-board structure in which social values will be restricted to advisory roles (p.196), by increasing the size and variance of CEO pay (p.200), and by making the board effectively self-perpetuating during good performance (p.214).

More broadly, however, his work raises issues about the proper balance between role-bounded professional understandings and broader “statesman” visions. UK-style nationalization and our own experience with “captured” agencies (TVA, the nuclear regulatory agencies) have taught us the dangers of asking the same bureaucracy to promote and regulate, grow and restrain, a single industry. But after Enron it is impossible to ignore the opposite problem: when agents are told that their only obligation is to profit-maximize without violating the rules of the game, the powerful incentives and moral imperatives of capitalism are likely to break all restraints, pushing the rules to the point where competition serves no [*522] one. Governmental corporations are attempts to mediate market and political systems of decision-making through novel separations and joinings of bureaucratic roles and obligations. This pioneering effort at examining them should inspire much additional work.



© Copyright 2005 by the author, Daniel J.H. Greenwood.

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CONSTITUTIONAL GOODS

by Alan Brudner. Oxford: Oxford University Press, 2004. 464pp. Hardback. $135.00 / £70.00. ISBN: 0199274665.

Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin@skidmore.edu .

pp.513-517

Everything about Alan Brudner’s new book, CONSTITUTIONAL GOODS, is large. The language is broad and complex; the tone is serious and erudite; the sheer volume of pages (464) is sizeable; and, at a hefty $135.00 even the price tag is substantial.

But the largest aspect of Brudner’s work is its ambitiousness. Seemingly frustrated with the parochialism that characterizes discourse surrounding contemporary constitutional theory, Brudner attempts to synthesize competing paradigms in an effort to envision a new constitutional order. Too often, he says, scholars of liberal constitutionalism focus on the specifics of particular regimes and not on the features these constitutional traditions share in common. The consequence of such provincialism is that any “universal theory” of constitutional government has to be “analytical and formal rather than interpretive or substantive” (p.vii). In other words, any attempt to understand the broad contours of liberal constitutionalism—the substantive qualities that certain constitutions around the world share—is difficult. We can understand the “premises” upon which these constitutions exist or the “concepts” that they espouse, but we cannot articulate a deeper substantive thread, a “conception of justice in the exercise of political power that explains and justifies the common features [of liberal constitutions]” (p.viii).

According to Brudner, the broad aim of the book is to remedy that insularity by proposing a new model of liberal political order which proponents of vastly different constitutional frameworks will find appealing. His goal, in short, is to construct (dare I say it?) a meta-model, a higher or more complex model of constitutional politics than what is currently available. What this means is that Brudner takes the leading theories that explain most Western constitutional polities—libertarianism, egalitarianism, and communitarianism—and initially criticizes their first principles as somehow not adequately capturing the breadth of the modern constitutional project. So, for example, in the beginning of the work he takes aim at such luminaries as Ronald Dworkin and John Rawls, insisting that they and others “seriously misdescribe” the model of liberal constitutionalism. He claims that the neo-Kantian conception of justice, when viewed alone, cannot hope to portray the entire landscape of liberal-democratic order.

But, interestingly, Brudner is not quite ready to discard completely the theoretical scaffolding that supports most contemporary scholarship in this area. In fact, he insists that when viewed as part of a larger, more complex picture of constitutional politics the neo-Kantian vision can be illuminating. He claims that what he proposes is a more evolved [*514] conception of what Rawls and Dworkin are trying to articulate. What is interesting about the author’s plan, therefore, is that once he describes their individual flaws, he turns around and articulates a model that uses parts of each framework—each theoretical paradigm—in a coherent whole.

Brudner begins with a simple assumption: “there exists a model of the liberal constitution that can be studied on its own, as something distinct from existing constitutions” (p.1). His model (as the term suggests) is the conceptual ideal, the vision of a constitution that does not rely on extant documents but rather on what is possible if we explore the shared virtues of competing theoretical frameworks and the values of abstract theory itself. Informing Brudner’s central assumption is his recognition that “constitutional practice has outrun the prevailing theory” (p.21). That is, a thick conception of liberal justice requires that we expand our understanding of contemporary liberal constitutions as promoting the right over the good so as to acknowledge that constitutions now include certain “goals” and “social institutions”—goods in Brudner’s words—that have become significant state concerns. Consider the example of South Africa. Not satisfied with simply rooting particular individual freedoms in a bill of rights, the constitutional Founders in South Africa went further by “entrenching goals, [and] mandating state measures to enhance the status of indigenous languages, to prohibit unfair discrimination, to protect the environment, and to guarantee housing, health care, social assistance, and both a basic and a higher education” (p.21). The South African constitution is a liberal constitution by contemporary standards, but, says Brudner, it is not a traditional example. It differs precisely because it includes the concern for goods alongside the protection of rights; it seems to include both traditional libertarian values and less conventional communitarian ones. Thus we need a new theory of liberal justice, one that can account for the development of changing constitutional priorities.

Throughout, Brudner acknowledges what his critics will no doubt think. The logical consequence of looking more deeply at constitutional experiments that include both the protection of rights and an equal concern for social goods is that they cannot possibly be made compatible. Prioritizing the right over the good means that when individual freedoms conflict with promised state goals, a certain value-neutrality emerges. In contrast, emphasizing the good at the expense of the right often translates into a sort of tyranny of the majority, or, as he puts it, a certain loss of an individual’s “distinctive worth.”

But Brudner has an answer. He claims that constitutional theorists have articulated the liberal constitution as either a “simple whole” or a “mere plurality.” A simple whole is a vision of constitutional politics whose “parts are ordered to a single idea” (say, in Dworkin’s work, “an equal concern for citizens”); whereas a “mere plurality” is one where a group of independent values (liberty, equality, community, and so on) all compete for hegemony. Neither is ideal. What is preferred, Brudner insists, is his model of the liberal constitution that is best characterized by the idea of the “complex whole.” A “complex whole,” he claims, is one where values [*515] are “constituent” rather than “independent;” they act in unison rather than individually to promote justice. These values retain a certain distinctiveness—individual rights, after all, are not the same as egalitarian or communitarian principles—but they act together to support the polity’s paramount idea or conception. There will surely be times when the differing priorities of a constitutional polity exist in an uneasy tension, but at those moments Brudner argues that a polity must rank the values “according to how well they instantiate the inclusive idea” (p.28). A constitutional interpreter must first understand the polity’s “inclusive idea” and then, during those moments when tensions arise, advance the value that best aligns with that central belief.

The nature of Brudner’s model of liberal constitutionalism, therefore, is a complex whole consisting of three “paradigms of justice,” each of which conceives of a slightly different conception of freedom. The libertarian paradigm of justice, as described in Part I of the book, conceives of freedom as the individual capacity for self-direction or self-authorship. The book’s next section describes the second paradigm of justice—the egalitarian paradigm—which takes as a given the principle that one’s liberty is always in some sense regulated by custom or convention. The third conception of freedom, to which Part III of the book is devoted, is the communitarian paradigm, where humans recognize their capacity for self-authorship only by harmonizing libertarian principles with our dependence on the social institutions that surround them. Aided by the work of Hegel, the author thus describes the principal idea of public reason found in each of these separate paradigms. He then concludes by declaring the combination of all three conceptions of public reason is the complex model of liberal constitutionalism he originally set out to portray.

Certain problems arise from a synthesis of competing paradigms, and Brudner is attuned to most of them. He insists that his model must acknowledge that each paradigm has several component parts and that a synthesis of those parts may not be possible. But, just the same, he also asserts that each paradigm has a dominant theme and that a synthesis of those themes is most definitely possible. Secondly, he knows that he must be careful with the process of breaking down each paradigm individually and then building them up collectively: too much damage to the principle of one paradigm will make it less effective as a portion of his meta-model.

This is all abstract stuff, to be sure. In fact, CONSTITUTIONAL GOODS is one of the most abstract works of constitutional thought to hit the market in some time. That is both a blessing and a curse. On the one hand, it is not possible to conceive of such a multifaceted theory of constitutional government by inhabiting a single theoretical perspective. That is, after all, precisely what Brudner is trying to avoid. Thus, what is intriguing (and I might add most rewarding for the reader) is Brudner’s ambition—his willingness to challenge the predominant view that the three paradigms of western political thought are not naturally congruent. For him, the idea that these theoretical traditions can be united to envision a richer, more nuanced model of liberal constitutionalism is what is missing in [*516] the analysis of contemporary constitutional theory. I agree. On this score, Brudner’s book is an unqualified success. The author has admirably moved the discourse of constitutional thought to a higher plane.

However, the level of abstraction is also problematic. Like Brudner’s concern about integrating the essential, though smaller, components of each paradigm of justice into a broader and more cohesive view of liberal constitutionalism, readers may find it difficult to integrate his more delicate points into a larger intellectual framework. In other words, we might commend the author for the subtlety and sophistication of his many, many intellectual moves, but those moves, unfortunately, draw our attention away from the central thesis of the book. I found various sections contributing more tenuously than others to the general thrust of the argument. I suspect all scholarship does this to some degree, especially in the realm of constitutional and legal theory; but because of the level of abstraction throughout CONSTITUTIONAL GOODS, it seemingly happens more often here.

More damning perhaps is the author’s unwavering assertion that his model is not tied to any existing polity. There is a reason most contemporary scholarship within the arena of constitutional theory borrows, even slightly, from extant regimes: they lend a certain reality or credibility to the project. Brudner’s book suffers a bit because it is hard to imagine the model in practice. (In fact he even admits that although “anchored in liberal constitutional practice generally, the theory is not . . . tied to any particular text, national history, or legal precedent,” and thus “the theory of liberal constitutionalism presented in these pages is not recommended without adaptation to judges engaged in the everyday practice of constitutional adjudication” (p.xi)). Certainly, his book includes an impressive array of concrete illustrations that help reinforce his theoretical premises (most of which are borrowed from U.S. or Canadian court cases). But there is no illustration that helps us to see the entire model in practice. It is true that no perfect illustration exists; but what about the German Basic Law, or the Canadian Charter of Rights and Freedoms, or the South African Constitution, or the documents that compose the Israeli constitution? What about considering how these constitutions, or even multi-national constitutions, might advance the argument? Aside from the rare mention of some of these texts, there is no sustained discussion of their application to Brudner’s central thesis. Can these constitutional documents, with their allegiance to multiple theoretical paradigms and differing principles of justice, be at all helpful in illuminating the author’s general model? I don’t know, but I would have liked to see some discussion on this point.

In the end, CONSTITUTIONAL GOODS is a difficult but rewarding read. It sets an ambitious goal and comes close to achieving it. My fear is that the scale of the work—its highly sophisticated thesis, combined with its sheer volume and high price tag—will deter many from investing the effort to contemplate its importance as a vehicle that moves liberal constitutional theory in a new and exciting direction. That would be a shame; for it is reminiscent of another important but largely [*517] overlooked work of constitutional thought, James Tully’s STRANGE MULTIPLICITY. In the preface of that book, Tully anticipates the work’s inevitable obscurity. He writes, “In these dark and discordant times, I do not expect [this book] to move more than a few readers.” And yet he ends on an optimistic note: he insists that the only way to “lessen the darkness and discord” is to continue the dialogue, even if few are listening. Alan Brudner has continued the dialogue; we should all hope that he now exhibits that same fortitude.

REFERENCES:

Tully, James. 1995. STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF DIVERSITY. Cambridge. Cambridge University Press.



© Copyright 2005 by the author, Beau Breslin.

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CYBERCRIME: A REFERENCE HANDBOOK

by Bernadette H. Schell and Clemens Martin. Santa Barbara, CA: ABC-CLIO, 2004. 247pp. Hardcover. $50.00. ISBN: 1-85109-683-3.

Reviewed by Alan Gaitenby, Center for Information Technology and Dispute Resolution, Legal Studies, University of Massachusetts, Amherst. Email: gaitenby@disputes.net .

pp.510-512

CYBERCRIME, by Bernadette Schell and Clemens Martin, is a straightforward report on the major areas of criminal intrusions into computer networks, systems, and data bases. This text is presented as a reference handbook, and it succeeds by thoroughly focusing on the topic of illicit systems intrusions, providing a nice glossary of relevant terms, cases, and codes – largely in the American context. Schell and Martin complete the handbook with an enlightening presentation of historical and biographical surveys of the major cybercrime events and cyberspace figures respectively. This text would serve nicely as a backbone or primary resource for an undergraduate course on cyberspace and law with considerable focus on the black letter law of systems intrusions. Similarly, it would be a nice supplementary reference to graduate or law school courses.

Schell and Martin take a largely positivist approach to the topic, which makes the text accessible to the widest possible audience. As such they do not stray from the accepted notions of what constitutes crime and criminal liability in this area. Basically a cybercrime occurs when someone knowingly, and without permission, accesses a system, or data on a system, or they use appropriate access permissions to conduct damaging and prohibited acts to persons or property. A small collection of federal statutes define the wrongs and potential penalties in this area of cyber law, and the authors do an effective job of mapping the terrain. While this is a straightforward and accepted way of approaching the topic, the book would be improved further by taking a broader view, looking beyond system break-ins to a wider range of criminal and civil wrongs facilitated through cyberspace (both by illicit system penetration and otherwise). Additionally, the text focuses considerable attention on the potential for terrorist-inspired cybercrime (e.g. a “CyberChernobyl”) in the form of system intrusions intended to cripple socio-political-economic infrastructure. Clearly, a reasonable inquiry must pay heed to these concerns; however, the attention given here implies that this is the major issue of concern with respect to crime and cyberspace. Statistics and data presented by the authors undercuts this somewhat, showing that much more mundane pursuits and inspirations make up the bulk of cybercrime. Of course, the absence of a cyber terror attack does not mean that it is not a problem, nor can it be assumed to mean that such attacks have been successfully thwarted. It is hard to ascertain causality for the absence of such a shadowy phenomenon.

In addition to illicit systems intrusions and subsequent damaging actions, there remains a need to address some of the other growth areas of cyberspace and [*511] law, areas where perhaps there is greater social and economic impact. The text rightfully reflects the problem of fraud, and certainly illicit systems access as a result of fraud is an appropriate subject. But the authors could have significantly deepened the discussion by spending more time on the rapidly expanding problems of identity theft and online commercial fraud. Identity theft can be the result of illicit systems access, as with the spate of recent reports of stolen personal data of clients / customers of credit corporations and data aggregation operations. Although computer systems access is not essential to identity theft, the subsequent fraud that results from such theft very often has a cyberspace component. Another expanding area of fraud is in online auctions and other commercial exchanges, and companies like eBay expend considerable energy trying to ameliorate the impacts of such behaviors. Despite these sorts of efforts, online fraud continues to grow, people still suffer damages, and many complaints are taken to federal and state agencies. Internet gambling, money laundering, and other potential financial misdeeds may also be legitimately considered within the realm of cyberspace crime – or they soon will be as law makers (i.e., legislators and judges) catch up.

Chapter One presents an overview of the history and types of cybercrime. The authors introduce the basic set of actions they consider cybercrime, consistent with positive notions of damage to property and persons in or via cyberspace. That set includes: Cracking or Hacking into systems inappropriately (and perhaps damaging that system); Pirating data or software without permission; Phreaking, or accessing the phone system to avoid payment for services; Flooding, or accessing a particular system or service rapidly and repeatedly to cause that system to gag on the multiple requests for service; Virus and Worm production and release, causing a variety of individual and system wide problems; Cyberstalking moves harassment and stalking online; Cyberpornography represents the illicit production, manipulation, and possession of prohibited materials including child pornography. Cyberterrorism represents damage to property and persons, as part of a social or political agenda calling for destruction / damage of key information technology infrastructure and related social practices.

Right from the start we are introduced to hackers in “white hats” and “black hats”—good and evil in the world of cyberspace. Hackers or crackers are individuals who illicitly access systems either though social or technological engineering. Social engineering occurs when individuals manipulate a social situation to access information from legitimate system users, and technological engineering refers finding ways into systems through a variety of technical means (e.g. data ports and buffers, email, or web based virus / worm intrusions). While informative about the basics of hacking, the authors perhaps oversimplify reality too much, categorizing hackers as either good and bad, and suggesting that the bad ones often transform ones when caught (or when they mature). Hacking’s social reality is likely more complex than that. In fact, there are probably many varieties and levels to hacking. However, the most significant group are those on the cutting edge who write the viruses and [*512] worms that infect our systems. Thus we need to have gray hats, and perhaps a plethora of other colors to truly reflect reality. The authors keep returning to the potential worst case scenario of the black hats of cyber terrorists, and it remains to be seen if this is an appropriate fixation.

Chapter Two delves deeper into two major topics: the means and methods of systems intrusions, and issues and controversies relative to system vulnerabilities. The first section on systems intrusion is effective, describing the targets, perpetrators, and existing / potential methods. Readers are taken through the landscape of hacking, flooding, viruses and worms, spoofing, phreaking, and the technological, and sometimes socio-legal, defenses crafted for them. This section of Chapter Two closes with a discussion of piracy and intellectual property / copyright, a placement that seems a little odd. While certainly some piracy is the result of illicit systems access, a growing share is facilitated through voluntary exchange of pirated data, the so-called file sharing dilemma now being faced by organizations like the Recording Industry Association of America and being pursued by them through several copyright infringement cases against selected individuals who make massive file sharing possible by hosting pirated info which is then widely available for downloading.

Schell and Martin identify and explore several issues and controversies related to system vulnerability in Chapter Two. Specifically this section looks at the types of attacks on software and systems, patching strategies to deal with technical, as opposed to social, vulnerabilities, and challenges to managing access by system administration posed by users, internet protocol, and domain name issues. Finally, in this section Schell and Martin look at legislative and law enforcement efforts to deal with systems intrusions. The authors are to be commended for raising the issue of “honeypots,” systems purposefully made vulnerable and available in order to watch and perhaps “sting” hackers.

Chapters Three, Four, Five, Six, and Seven respectively present a cyberspace chronology, cyberspace and cybercrime biographies, codes and cases of cybercrime, public and private agencies or organizations working on cybercrime, print and non-print cybercrime resources, and a glossary or relevant terms. These chapters are all useful reference materials for teaching and research in this area.

In sum, this is a nice work that would be most useful at the undergraduate level, and would also have utility for some graduate or professional training purposes. The book’s strength is its focus on traditional notions of crime in cyberspace, and especially as that relates to systems intrusions. Professors and students who read this text will be well situated for academic and other discussions of what is currently understood as cybercrime.



© Copyright 2005 by the author, Alan Gaitenby.

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LAW IN AMERICA: A SHORT HISTORY

by Lawrence M. Friedman. New York: The Modern Library, 2004. 224pp. Paper. $12.95. ISBN: 0-8129-7285-6. Hardcover. $19.95. ISBN: 0-375-50635-7.

Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky. POL140@uky.edu .

pp.507-509

Lawrence Friedman has written a delightful little book (only 184 pages of text). Informally written and sparse on legal jargon, it seems aimed at a lay audience that is somewhat curious about the development of our law and legal institutions but is not in the mood for an extended historical or philosophical treatment. It starts with the Puritans and carries through to the modern federal Leviathan. LAW IN AMERICA is not a must read for the professional who is fairly familiar with American legal history, but it is a nice refresher. We even learn a few interesting bits of trivia – e.g., Friedman debunks the myth that a common law marriage required seven years of open cohabitation (a couple holding themselves out as husband and wife was sufficient) – and he offers us a few surprising facts – e.g., it was illegal to sell cigarettes in Arkansas during the first two decades of the 20th century.

LAW IN AMERICA is loosely organized as it proceeds partly chronologically and partly topically. It begins with an introduction to the necessity of law in societies and then to the nature of the common law. Chapter Two focuses on colonial law, explaining how English law was partly preserved and yet also transformed in light of frontier, non-aristocratic conditions, along with the easy availability of land and the heavy dependence on slavery. Chapter Three moves into the 19th century, focusing on the law as an instrument of economic development. Classic cases, such as DARTMOUTH COLLEGE (1819), CHARLES RIVER BRIDGE (1837) and FARWELL v. BOSTON AND WORCESTER RR. (1842), illustrate the theme. A short fourth chapter covers family law, describing colonial and 19th century husband and wife relationships and the development of divorce law. It then moves into the 20th century, covering the use of formal adoption procedures, the spread of married women’s property statutes and the more recent invention and rapid diffusion of no-fault divorce.

Chapter Five, the longest and fullest, is about crime and punishment. It is rich in short discussions about philosophical changes – e.g., the shift from shame to incarceration as a means of crime control, and the decline of sin as a criminal offense (except for drug use which was not a classical sin). It also focuses on practical changes, such as the modern prevalence of plea bargaining and probation and our cyclical views about judicial discretion in sentencing and the use of parole. In Chapter Six, Friedman explains the rise of the “administrative-welfare state” as a function of the 20th century’s urban, industrial and continental economy. There are some side excursions here into the civil rights movement and major Warren Court decisions such as [*508] GRISWOLD (1965) and BAKER v. CARR (1962) The last chapter discusses the considerable increase in the nature, numbers and functional importance of the legal profession.

Of course, a 184 page history cannot be comprehensive about nearly 400 years of legal development, so some important areas receive little attention. While Friedman recognizes that the American economy “floats on a sea of lawyers” (p.168), there is no coverage of the massive growth of corporation, finance or marketing law in the 20th century, and only slight forays into matters like anti-trust and labor relations. While tort law is tied to 19th century economic development and 20th century manufacturers’ responsibility – e.g., the demise of privity beginning with MACPHERSON v. BUICK MOTOR CO. (1916) – many other aspects of tort, such as the demise of municipal and charitable immunity from liability, changes in libel law, and the rise of the invasion of privacy tort, do not make the cut. Nor do 19th century contract law or late 20th century class action consumer remedies. Friedman wonderfully explains the difference between entailed property in England and the rise of fee simple in colonial America (without having to resort to these legal terms), but there is little mention of the increasing, indeed dominating, importance of intangible property in America.

There are some recurring themes found in LAW IN AMERICA. One is the shameful treatment of minorities – not just blacks, but Hispanics and American Indians, and going beyond minorities, the poor, disabled, elderly, and – this is a history – indentured servants. Several pages cover the law of slavery and Jim Crow arrangements. Another theme, more to be teased out than highlighted, is the cyclical nature of legal change, especially in criminal law, such as the rise and fall and then rise again of indeterminate sentencing and the shifting public attitudes about judges’ discretion in sentencing.

At the end, Friedman makes a few perhaps obvious predictions about the future of the law. One, classic federalism is dead, despite Rehnquist Court decisions, like LOPEZ v. U.S. (1995) and U.S. v. MORRISON (2000). Such decisions, he tells us, are “essentially pinpricks rather than stabs” (p.173) at the inevitable federalization of American law. Two, the staying power of the “imperial presidency” is another inevitable fact of life. The president is the focus of national media attention. Single-handedly, he makes foreign and military policy and sets the major domestic issues agenda. Well, not single-handedly. It is president and company; his White House (or palace) advisors are more powerful than cabinet secretaries and majority leaders. This is what makes the presidency imperial. Three, group consciousness about rights will increase (e.g. race, gender, gays, handicapped), but our legal system will not adopt the concept of group rights. Four, the “liability explosion” will continue. “Suing the bastards” is now part of the American consumer ethos for those who get the run-around from their HMOs and even for those whose coffee from McWhatever is too hot.

I urge those who teach an introduction to law or a similar course to consider adopting LAW IN AMERICA. It will give you many opportunities to illustrate how cultural developments and [*509] technological innovations mold the law – and with subject matter that ought to generate discussable student questions.

CASE REFERENCES:

BAKER v. CARR, 369 U.S. 186 (1962).

CHARLES RIVER BRIDGE v. WARREN BRIDGE, 11 Pet. 420 (1837).

DARTMOUTH COLLEGE v. WOODWARD, 4 Wheat. 518 (1819).

FARWELL v. BOSTON AND WORCESTER RR., 4 Mass. 49 (1842).

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

LOPEZ v. U.S., 514 U.S. 549 (1995).

MACPHERSON v. BUICK MOTOR CO., 111 N.E. 1050 (N.Y., 1916).

U.S. v. MORRISON, 529 U.S. 598 (2000).



© Copyright 2005 by the author, Bradley C. Canon.

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THE LOUISIANA CIVILIAN EXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION

by Vernon Valentine Palmer. Durham, NC: Carolina Academic Press, 2005. 304pp. Paper. $35.00. ISBN: 1-59460-060-0.

Reviewed by Rick A. Swanson, Department of Political Science, University of Louisiana at Lafayette. Email: ras2777@louisiana.edu .

pp.504-506

THE LOUISIANA CIVILIAN EXPERIENCE is a series of loosely-connected, previously published, yet slightly revised “historical and comparative critiques of the Louisiana Codes,” which present Vernon Palmer’s views on “the origins and antecedents” of the codes as well as their subsequent development (p.ix). Palmer states the “general theme of this book” is as follows: “Plant French-Style codes in an utterly different soil. Subject them to all the pressures and vicissitudes of the mixed jurisdiction experience. After 200 years, assess the results and assemble the academics for a veritable tournament of scholars” (p.x). Since Palmer is the sole contributing author of the book, however, his text is a tournament of one.

Palmer’s introduction notes that in the year of the Louisiana Purchase (1803), Louisiana was nearly an equal mixture of free whites, black slaves, and Native Americans, but “the prevailing stamp of life and culture” (including politics) was French, even when formerly under Spanish rule. Thus, although the Territorial Legislature recognized that public law must be uniform with the American federal system, it decided private civil law would be based on codification rather than common law. Accordingly, the legislature enacted a Civil Code named the “Digest,” which was later bolstered by the 1812 Louisiana Constitution. This combination of federal public law with a state private civil code resulted in a “mixed legal system” (p.11).

Palmer’s first essay attempts to resolve the “famous Pascal/Batiza debate” (p.19)—i.e. whether the Digest was predominately based on the then-in-effect Spanish-based code of the Louisiana Territory, or whether it looked more to French civil codes for guidance. Palmer concludes, based on extensive notes made by the author of the Digest, that the Digest was “a significant step toward a general reception of French law in Louisiana (p.36). The next essay offers additional evidence to bolster this thesis. Indeed, by 1828, “eight-five percent of the content of these new codes consisted of French-derived articles” (p.52). Palmer explains that the Pascal-Batiza debate matters, because it tells “a story about a dominant culture’s attachment to its laws, the effects of substituting alien laws, and the spontaneous reassertion of that attachment when the political opportunity arose” and thus is a story about “the link between law and society.” He then summarizes the effect of extensive revisions of the Digest between 1828 and the present day. He concludes by noting although the Digest still has a lasting and significant impact on Louisiana law, “in a number of respects, however, the legacy of the Code Napoléon is nearly extinct” (p.99). [*505]

Palmer’s next essay discusses the development of France’s Code Noir which regulated slavery in the French colonies of the Caribbean and Louisiana. Palmer disagrees with previous authors who have argued that the Code Noir was largely based on ancient Roman slave law. Detailing the differences, he asserts “The grounding of the code is fifty years of France’s own experience with slavery in the New World, not its reliance on the ancient law of Rome” (p.106).

Turning discussion back to the broader, general civil code in Louisiana, Palmer notes how substantial statutory revisions and critical judicial decisions over the last two centuries have caused “the death of a code and the birth of a digest”(p.163). He details what he sees as the serious flaws of the most recent ongoing Revision, so that it has “become more complex and more uncertain” (p.174). He laments “even if the Revision well reflects the system we want, it is an unavowed abandonment of the system to which we aspired” (p.165).

In the next brief chapter, Palmer first notes there is an ongoing “frenzy of codification” of “feverish intensity” (p.177) as forty-seven nations have enacted codifications since the Second World War. Both Quebec and Louisiana, for example, are undergoing recodification efforts. Palmer explains that the need for such recodification is based on three objectives: “certainty, justice, and modernity” (p.181). However, recodification is a lengthy and laborious process, and “policy groping rather than policy planning” has bogged down the process in both Quebec and Louisiana.

The penultimate essay, “The Collapse of the General Clause” details how common law tort principles have encroached into Louisiana’s civil code. The original 1825 “general clause” stated “Every act whatever of man that causes damage to another obliges him by whose fault it occurred to repair it.” Palmer notes how the “abstractness and brevity” of the clause invited common law clarification and expansion by judges. The legislature repeatedly responded by codifying specific tort principles, especially in the area of wrongful death, so that the general clause now contains more than 1000 words. Despite the legislature’s efforts, however, common law principles have been “assimilated” into the jurisprudence of Louisiana tort law: “The Louisiana mind has become culturally conditioned by Anglo-American thought” (p.221).

Similarly, and in his final essay, Palmer explains how the doctrine of equity in Louisiana has also incorporated jurisprudential elements of the common law. The 1870 Louisiana Constitution required judges to state the specific statutory basis for their ruling. The Code itself, however, in a “Directory Provision,” required judges to apply “equity” as a “return to natural law” in the absence of specific positive law. Moreover, in judicial decisions over the decades, Louisiana courts gave themselves some other limited, yet inherent, equitable powers. Examining how several specific principles of equity have evolved in Louisiana, Palmer demonstrates that the power of Louisiana courts has extended far beyond what the original drafters of the civil code intended, although it is still significantly short of the power of common law courts. [*506]

The main strength of Palmer’s book is that he has succeeded in the (at least implicit, if not explicit) goal of having his essays serve as a window into a particular legal jurisdiction’s historical struggles with a civil code, especially in the context of a mixed legal system. All his points are thoroughly supported and documented. The book certainly has educational value for Louisiana historians, as well as judges and practicing civil code lawyers within Louisiana. Less obviously, comparative lawyers from civil code jurisdictions around the world should be able to glean various lessons from Louisiana’s experience in their own jurisdictions’ ongoing efforts to create, perpetuate, and re-invigorate civil codes.

That being said, the biggest weakness of the book is the lack of any coherent, central theme that would clarify any helpful lessons it provides. The fact that the book is simply a collection of previously-published essays is obvious by their piecemeal diversity. Moreover, it is unclear who his target audience is. If it is Louisiana legal historians, then all the chapters should be highly useful. If it is Louisiana legal practitioners, then the chapters are hit-and-miss, as several of the chapters are of historical interest only. If the target audience is comparative legal scholars or practitioners hoping to learn lessons from Louisiana’s civil code experience, then the lack of essays discussing such fundamental judicial concepts as principles of statutory construction or the power of judicial review (if any) within Louisiana’s civil code experience will leave readers sorely wanting. Finally, had there been additional essays written specifically for the book, or especially a concluding chapter distilling important themes, the organizational and substantive strength of the book would have been significantly enhanced, regardless of intended audience.

The lack of new or synthesizing essays for the book is especially surprising given that Palmer appears to be an unabashed supporter of civil codes, and his own Louisiana code in particular. For example, his essay “The Death of a Code—The Birth of a Digest” has almost an angry tone to it. For example, he concludes that essay by positing numerous unanswered questions about why and how the Louisiana code died, to which he finally states “To bury the Code without examining such questions would cast dishonor upon the law and ourselves” (p.176). Despite such hyperbole, he leaves out any over-arching framework for the book or additional essays that would enhance his defense of civil codes. As such, the book should be of interest yet limited use to practicing lawyers, law students, or history students seeking to study Louisiana’s civil code experience.



© Copyright 2005 by the author, Rick A. Swanson.

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TERRORISM AND COUNTER-TERRORISM: CRIMINOLOGICAL PERSPECTIVES

by Mathieu Deflem (ed.). Amsterdam: Elsevier, 2004. 226 pp. Cloth. £63.50 / €95.00 / $95.00. ISBN: 0-7623-1040-5.

Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy. Email: zotti@usna.edu .

TERRORISM AND COUNTER-TERRORISM: CRIMINOLOGICAL PERSPECTIVES is a collection of eleven essays brought together by editor Mathieu Deflem to present an overview of terrorism and counter-terrorism scholarship, in terms of social control, crime, and law. The fifth volume in a series, entitled “Sociology of Crime, Law and Deviance,” this work is the child of September 11, 2001. The book showcases the contribution of criminological sociologists to the study and understanding of terrorism and counter-terrorism.

The first section discusses the theoretical foundations of studying terrorism and the viewpoint of criminological sociology. The first author, Donald Black, writes in his chapter, “Terrorism as Social Control,” that the act of terrorism is a form of unilateral self-help. In defining terrorism, Black states that self-help, the handling of a grievance with aggression, is a distinguishing characteristic. Terrorism is highly violent, more so than other forms of self-help aggression like assault. He goes on to define and distinguish terrorism as well organized, mass violence, and quasi-warfare. Pure terrorism is a by product of the modern age as is international terrorism in which grievances and their aggression cross national borders. The author’s goal is foundational, to establish definitions and terms as a building block of inquiry.

Richard Rosenfeld builds on Black’s work by considering the predatory nature of terrorism and the institutional components which assist the growth and development of terrorism. In other words, Rosenfeld adds a criminological perspective to Black’s sociological one. His chapter, “Terrorism and Criminology,” applauds the sociological approach to terrorism as social behavior. Yet the weakness of Black’s work, from Rosenfeld’s viewpoint, is that it does not make use of the contributions of criminologists. Rosenfeld argues that the use of predatory violence to accomplish moralistic goals is an aspect of terrorism which is missed by Black’s pure sociological approach.

In “A Reciprocal Approach to Terrorism and Terrorist-Like Behavior,” Gregg Barak espouses a theory of violent and nonviolent behavior that cuts across interpersonal, institutional and structural spheres of social organizations. He applies this theory in his piece to three terrorist-like behaviors. Focusing on “killer boys,” “suicidal terrorists,” and genocidal exterminators,” Barak broadens the definitional boundaries. He links the three examples, proposing that in each the perpetrators and victims are dealing with issues of shame, esteem, and lost, repressed, or suppressed anger. [*502] Certainly a vantage point atypical of the political and religious motivations for international terrorism, Barak’s narrative makes the point that institutional and interpersonal failings can contribute to violence toward others. The definition of terrorism is sociological in nature and broad in application.

The second section of the book addresses methodological issues in terrorism research. The first chapter assesses the similarities and differences between crime and terrorism research. Indeed, Gary LaFree and Laura Dugan survey the current state of the literature and glean similar and different constructs for terrorism and crime. The authors also explain that most crime data are based on official reports (such as the Uniform Crime Reports in the United States), self reporting, or victimization studies. Global event data sets, such as the Pinkerton Global Intelligence Services, have been created to identify and code terrorist events. The State Department, RAND and other domestic and international organizations attempt to capture and codify terror. The authors then consider the methodologies appropriate for analyzing these data sets and conclude that the similarities between crime and terrorism research should encourage criminologists to undertake more work in advancing the study of terrorism.

The remaining chapters of the methodological section call for better use of existing data and the creation of more useful data sets. In the chapter, “Terrorism and Empirical Testing: Using Indictment Data to Assess Changes in Terrorist Conduct,” the authors argue that the empirical assessment of rarely used data sets can advance the study of terrorism. In “Counteracting Terror: Group Design and Response Modalities,” the author analyzes the United States government’s categorization of terrorist groups. Concluding that the methodologies used are inadequate, the author proposes two models to better categorize terrorist activity.

The final authors in this section argue that, although the shift in federal funding after 9/11 to study terrorism is meaningful, it still represents only a small proportion of the federally funded research agenda. In “Terrorism and the Federal Social Science Research Agenda,” the authors document the budgetary contribution to the social science study of terrorism before and after 9/11. It is interesting to note that monies flow to agencies as diverse as the National Institute of Justice, the Centers for Disease Control and Prevention, the National Institutes of Health as well as Homeland Security.

The next section of the book concerns counter-terrorism, ideology and security. Two authors write here, both assessing various responses to the attacks of 9/11. “Neoconservatism and American Counter-Terrorism: Endarkened Policy?” addresses the case of Guantanamo Bay. Rather than analyzing the policy of detaining enemy combatants from a military or political perspective, the author considers the ideology of neoconservatism and elements of it, such as secrecy and elitism. The author argues that in the aftermath of 9/11, aggressively classifying documents as secret and using tools such as the Patriot Act support a neoconservative response. The author concludes that this response is an [*503] endarkened policy of governance which manipulates national security and fails the standard of legitimacy. The author is blunt in his disdain for the counter-terrorism approach, as he views it, in Guantanamo Bay. Another political piece is by Bonnie Berry in which she draws parallels between the right wing ideology of American politics and right wing terrorism groups. Taken almost entirely from news sources, the piece is clear in its anti-Bush stance. This section of the book is more political than scholarly.

The remaining portion of the book concerns the construction of terrorism. The first authors consider terrorism as a construct of moral panic. Victor E. Kappeler and Aaron E. Kappeler analyze speeches by political and law enforcement figures to identify the constructs of political discourse. Rhetoric, in terms of saving civilization, vilifying the enemy, and terrorism as epidemic, all serve to create dramatic dichotomies and distinctions for public consumption. The authors argue that more research is needed to codify the language of leaders in the messages they send to the public at large.

In “the Challenge of Terrorism to Free Societies in the Global Village,” Paul Leighton calls upon criminologists to reinvigorate the understanding of crime in a free society and consider the new challenges that terrorism brings. Leighton argues that criminologists could suffer from disciplinary inertia if they fail to think about terrorism differently in the post-9/11 world. If criminologists view the war on terrorism as they have the war on drugs, their contributions to understanding could be minimal. The author challenges others to think globally and to apply theoretical constructs to new situations. Leighton persuasively makes the case that the challenges of understanding terrorism call for creative and inventive approaches.

The collection of writings in TERRORISM AND COUNTER-TERRORISM is diverse. As editor, Deflem chose a wide-ranging group of authors, presenting varied work—some quite scholarly, some more theoretical, others more political. Readers will have to choose which are the most useful for their purposes. Considered as a whole, this book reveals the schism existing among disciplines in their approaches to inquiry and study. Perhaps it is not a schism, just varied perspectives which lack integration. It is fascinating to understand the sociological and criminological views of terrorism, yet disheartening to see such little overlap among criminologists, sociologists, and political scientists.

*************************************************

© Copyright 2005 by the author, Priscilla H. M. Zotti

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ON THE RULE OF LAW: HISTORY, POLITICS, THEORY

by Brian Z. Tamanaha. Cambridge: Cambridge University Press, 2004. 188pp. Hardback. $70.00/£40.00. ISBN: 0-521-84362-6. Paper. $28.99/£16.99. ISBN: 0-521-60465-6.

Reviewed by Mark Welton, Department of Law, United States Military Academy. Email: Mark.Welton@usma.edu .

The rule of law – its definition and attributes, the possibility and conditions for its existence, and its significance as a political virtue – has long been a subject of scholarly investigation and debate. In recent years, it has emerged from the confines of academic and philosophical discourse onto the wider stage of contemporary political events, transcending national borders, political regimes, and legal systems. Such diverse public figures as Paddy Ashdown, Mohammed Khatami, George Bush, and Vladimir Putin have all recently extolled the rule of law as the sine qua non of economic development, democracy, human rights, and international stability. The rule of law seems increasingly important and desirable. But the question remains: what is it?

In his short book ON THE RULE OF LAW, Brian Tamanaha seeks to answer this basic question, and he succeeds. This is a valuable work that fills the need for a clearly articulated introduction to this now widely praised, but often poorly understood, political ideal. Remarkably comprehensive for such a short work, the contributions of such figures as Plato, Cicero, Locke, Montesquieu, Madison and Hamilton to the development of the concept of the rule of law, as well as the refinements made by recent and current thinkers like Joseph Raz and Ronald Dworkin, are explicated within a well-constructed framework of the historical, economic, and political forces that have shaped the concept. Tamanaha’s own evaluation and conclusions about the rule of law are balanced, yet he does not hesitate to expand our understanding of the value and shortcomings of the rule of law, especially when applied to non-western cultures and to the international arena.

Viewing it as a product of western political and legal thought, Tamanaha offers a concise examination first of how the rule of law emerged from Greek and Roman roots and survived as an inchoate concept during the medieval period. He then examines the core set of meanings that became associated with it as a component of liberalism during the Enlightenment, as well as the various critiques that have more recently been applied against it, ranging from nineteenth century conservatives (Dicey, Hayek) to twentieth century American realists and critical legal scholars. From this historical review, the author derives three main themes that inform our understanding of the rule of law.

The first (and broadest) theme is government limited by law. This focuses not on individual liberty, but on restraint of government tyranny, and was the dominant version (preceding the idea of individual liberty) until the advent of liberalism, when the focus shifted to [*498] formal legality. It means first that government officials must abide by the currently valid positive law, and second there are restraints on their law-making power (how they can change the law), imposed by natural law, divine law, customary law, or more recently human/civil rights.

This restraint in the first sense came in premodern times from affirmation by the monarch that the law was binding (though not always voluntarily), such as the oath upon taking office, the Magna Carta, a common understanding (such as from German customary law), and the routine conduct of officials. Church leaders, merchants, aristocrats, and others usually cited breaches of law to justify their resistance to arbitrary government actions, which usually took political (or theological) form, since there were few legal remedies for violations of law by the sovereign. But it is possible to apply legal sanctions against the sovereign for violations of the positive law; this usually requires an independent judiciary capable of holding the other parts of government accountable on legal grounds, and whose decisions are respected.

Restraint of government tyranny in the second sense is more ambitious. In Islam the Shari’a may serve this purpose, but in modern times there are tensions even in the Muslim world that result from modernity and pluralism. Ultimately the success of this theme of the rule of law depends on a pervasive belief in it by the people and by government officials. While the role of written constitutions is considered at various points in the book, here the author might have usefully discussed the concept of constitutionalism and its close relationship to the rule of law.

The second theme is formal legality: public, prospective, stable, general laws equally applicable with a fair hearing within a judicial process. This is the dominant theme within liberalism and capitalism, and there is a positive correlation between formal legality and economic development. It emphasizes predictability, deemphasizes the content of the law, is not incompatible with authoritarian regimes, and foregoes requirements of distributive equality and justice in individual cases (though it is not incompatible with these). It may also be inappropriate is some cases, where compromises or political solutions are preferred, or in communitarian societies where social values may clash with aspects of formal legality. Finally, there can be rules that are so numerous and complex that they defeat the purposes of formal legality.

The third theme is rule of law, not man. This avoids the unpredictable predilections of individual actors. But since laws are not self-interpreting or applying, individuals cannot be excluded from consideration. The rule of law response has been to identify the judiciary (legal experts) as the special guardians of the law, and reduce the significance of the individual as judge – at its most extreme in formalism, which values the objective, mechanical judge. This theme has been supported by the growth of law and lawyers and their extensive social penetration in liberal societies, and by the separation of powers and subsequent independence of judges, which was made possible by the professionalization of law. To prevent the rule of law in this theme from [*499] becoming rule by judges is important, especially following the decline of legal formalism. It requires careful selection of judges committed to fidelity to the law, deference to proper authority to make the law, diverse social background of judges, and qualities of judicial honesty and integrity, among other factors.

On the international level, an infrastructure of global law (public and private international law) has been and continues to be laid through rules, acceptance by states, and the creation of international tribunals, especially in the commercial arena which has been driven by the global economy. But here an analogy to the rule of law within nation-states is difficult. International law is characterized by consent-based tribunals, lack of a legislature and executive agencies, and voluntary rather than compelled acceptance of (and compliance with) various legal regimes, all of which create rule of law difficulties. Self-interest and power, and the overall voluntary nature of international adjudication, counterweigh fidelity to the law. However, this situation is roughly similar to the early (medieval) period of the state-centered rule of law tradition; there is then potential for further development of an international rule of law.

Regarding formal legality on the international level, the piecemeal creation of rules and tribunals, which often overlap, along with varying national interpretations and applications of rules, all tend to reduce consistency, certainty, and equality in the application of the law. The creation of international law rules is not always transparent, and compromise and politics, rather than rule application, more often prevails.

Underlying support for the rule of law in nation-states has been supportive beliefs that the law is just, made by the people, and/or for the good of the community. This is lacking in the wide variety of states on the international level, and may be seen as designed to support western power and values. To be successful, an international rule of law must be perceived to reflect the interests of the entire international community.

Tamanaha concludes his book by asking whether the rule of law is a universal human good. The first cluster of meaning of the rule of law, that government officials operate within a legal framework in the two senses of abiding by the law as written and accepting limits on law-making power, is indeed a universal human good. The state system and modern government is a recent (seven centuries old) invention of the West, and in pluralistic societies is not just an extension of the community. Experience shows that government is capable of abusing power as much as benefiting the communities under it. But the situation is more complicated when parts of the positive law or limits on the law (like bills of rights) are transplanted from western (individualistic) societies to non-western (communitarian) ones.

Tamanaha believes that a helpful approach would be to start not with identifying zones of individual autonomy to identify limits on government (a liberal approach), but with the idea of preventing government tyranny, and to decide what limits are appropriate consistent with prevailing social-cultural views. The second [*500] cluster, formal legality (rule by rules), is a valuable good but not necessarily a universal human good. It can be alienating when set in different cultural contexts, such as those with greater emphasis on communitarian values and the importance of social justice (for example, those within the Islamic tradition). The third cluster – the rule of law, not man – follows whenever the first or second is adopted. Self-restraint to avoid descending into rule by judges is necessary.

Finally, Tamanaha notes that all of these clusters are open with regard to content. In his view, justice and the good of the community should be considered in any evaluation of the value of the rule of law. He notes in this regard that “pervasive societal attitudes about fidelity to the rule of law – in each of the three meanings – is the mysterious quality that makes the rule of law work.” (p.141)

So often used as a slogan by politicians for “the pot at the end of the rainbow,” and as a straw man for the vices of modern law and politics by academics, study of the rule of law has long needed a fresh approach that discards the political baggage that has often accompanied any discussion of the concept. ON THE RULE OF LAW offers that approach. Concise but comprehensive (though as noted earlier, some attention to the close relationship between constitutionalism and the rule of law would have been welcome), it considers not only the historical and theoretical framework for the rule of law as a western liberal concept, but also the usefulness of the concept both in other (non-western) cultural contexts, as well as within the international community of states. For anyone seeking to evaluate the multitude of public statements or academic works that promote, critique, or disparage the rule of law, this book is an excellent point of departure for that evaluation.



© Copyright 2005 by the author, Mark Welton.

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GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER

by Gerry Simpson. New York: Cambridge University Press, 2004. 414pp. Hardback. $95.00/ £65.00. ISBN: 0521827612. Paper. $35.00/ £22.99. ISBN: 0521534909.

Reviewed by Maxwell O. Chibundu, University of Maryland School of Law. Email: mchibundu@law.umaryland.edu .

In 1825, Chief Justice Marshall of the Supreme Court of the United States, in THE ANTELOPE, asserted that “No principle of general law is more universally acknowledged than the perfect equality of nations.” The Charter of the United Nations Organization, 120 years later, stated that it was based “on the principle of the sovereign equality of all its Members.” Sixty years further on, barely any one, including the Secretary-General of the United Nations, subscribes to such ringing declarations of the primacy or exclusivity of national sovereignty, let alone that of the sovereign equality of states.

At core, the idea of the sovereign equality of states posits that the conduct of states towards each other, their regulatory competence within their boundaries, and their capacities to participate in and generate rules for the international system are entitled to the same level of legal deference without regard to their territorial size, population, material wealth, technology, or cultural sophistication. In recent years, this doctrine has come under challenge from several sources. At a descriptive level, a common refrain is that the proposition cannot be squared with observed behavior, nor can it be maintained in the face of the ever-present and pressing realities of unequal military power and economic wealth between national societies. At a normative level, scholars puzzle over whether the doctrine applies in all contexts, or whether it is and should be constrained by subject matter, excluding it from application when the issue is protection of “fundamental human rights,” or some other notion of jus cogens. And cutting across both is whether the concept is applicable only in the context of the horizontal relationships of states to each other, or just as well to vertical relations between states and international institutions. An understandable answer among scholars has been to throw one’s hands up in frustration or ennui, asserting that sovereign equality is at best a deceptive bit of fiction, at worst an organized hypocrisy, and in both events a dystopia. A reader might thus ask whether we need yet another tome in this intellectual morass.

In GREAT POWERS AND OUTLAW STATES, Gerry Simpson provides a conceptualization of the doctrine of sovereignty – or, more accurately, the included concept of “sovereign equality.” He seeks to define the doctrine and to show how it coexists with legalized hierarchies among states in international law. He contends and demonstrates that the modern formulation of sovereignty since 1815 is as much about the legalization of [*492] hierachies within the system as it is about the doctrine of perfect equality among nations. What flows from this understanding of the divergent impulses for legalizing the coexistence of both equality and hierarchy is what he terms “juridical sovereignty.”

“Sovereign equality,” Simpson contends, should be disaggregated into three distinguishable concepts: “formal equality,” “legislative equality,” and “existential equality.” While formal equality has always operated as a background norm of international relations – at least since the Treaty of Westphalia – it has never fully represented international society’s conception of the juridical basis for formal relations among states. To the contrary, it has operated in tandem with, and has been qualified by, its coexistence with two other conceptions of “equality”: the existential and the legislative. Embedded in these two latter conceptions is the hierarchical ordering of international society. Integral to any conception of existential equality is what Simpson terms “anti-pluralism,” while legislative equality is conditioned by “legalized hegemony."

These core concepts are developed in the Introduction and first three chapters of the book. Chapters 4-6 trace legislative equality and the correlative concept of “legalized hegemony” at foundational legal moments between 1815 and 1999; notably at the Congress of Vienna, the Second Hague Conference of 1907, the Versailles Conference of 1919, and the San Francisco Conference of 1945. Chapter 7 explores the relevance of legalized hegemony to the debate over the 1999 Kosovo war. Chapters 8-10 trace the foundations of existential equality and anti-pluralism between 1815 and the present. Chapter 11 seeks to demonstrate how disaggregating the concept of sovereign equality provides a superior understanding of the propriety of the use of force in Afghanistan in the aftermath of September 11, 2001.

Simpson confines the definition of formal equality to that of being no more than “equality before the law”—the right of similarly situated states to be treated in the same way by a judicial tribunal. In his view, formal equality does not entail legal acknowledgement or endorsement of the equal capacity of all states to act with equivalent force on all matters, and it certainly does not require identical allocation of substantive rights. As he puts it, formal equality “extends neither to forms of jurisdictional equality nor to equal capacity to vindicate rights outside the judicial context” (p.47). This limitation of formal equality to a very narrow and highly technical procedural sphere is essential for two reasons. First, it permits Simpson to argue that states – all states – are entitled to undiluted formal equality. (Parenthetically, the viability of even this most minimalist of claims surely has been put into doubt by the recent decision of the International Court of Justice in the case brought by Serbia and Montenegro against Belgium and other members of the North Atlantic Treaty Organization.) Second, and a good deal more significantly for this book, it also permits Simpson to contend that international law, while maintaining the concept of sovereign equality, validly has discriminated among states through the application of the doctrines of legalized hegemony and anti-pluralism (pp.47-48). [*493]

As a normative proposition, legislative equality embodies the notion that international law confers equal recognition and dignity upon the acts of states in the international arena. Simpson distinguishes between two possible statements of this norm. In its weak form, it recognizes that states are bound by only those legal norms to which they have assented. In a stronger form, it would “mandate an equally weighted vote and equal representation in the decision-making processes within international bodies, and an equal role in the formation and application of customary law and treaty law. More particularly, . . . a strong commitment to legislative equality would deprive the Great Powers of any special role within the international legal order” (p. 48).

Simpson has little difficulty demonstrating that the stronger form of legislative equality has never been recognized by international law, certainly not since 1815. Beginning with the Congress of Vienna, and running through Versailles and San Francisco, he conclusively shows how the diplomats who met to reconstruct their world orders in each case privileged the roles that great powers were to play in their refashioned worlds. The unequal legal position given to the five Permanent Members of the Security Council in the post-World War II international legal order, far from being aberrational, was consonant with prior practices. Nor, Simpson exhaustively demonstrates, were these decisions merely expedient or secretively imposed. Rather, they were the clear-eyed products of extended discussions and debates among diplomats and jurists as well as state practice at the various conferences and in the intervening years. The norm of legislative equality, Simpson thus persuasively argues, generates within the international legal order, an equally powerful antithesis, that of legalized hegemony. International law has not been able to (and more controversially cannot) embody the one without the other.

Existential equality, Simpson asserts, “arises out of a recognition by the international community that an entity is entitled to sovereign statehood and that equality is the immediate product of fully recognised sovereignty.” Its corollary is the principle of nonintervention by others in the internal affairs of the state, including its choice of government (p.53). This norm, which probably was at the core of Justice Marshall’s statement in THE ANTELOPE, has come under sustained attack in recent years. Indeed, it has become commonplace to treat the claim, when interposed as a limitation on crusades for “democracy” and for “international human rights,” as a canard. As with the treatment of legislative equality, Simpson sets out to demonstrate that our contemporary debunking of the primacy of existential equality – what he terms anti-pluralism – is by no means a singularly postmodern phenomenon. Again relying on contemporaneous historical sources, he demonstrates that international law has always distinguished between the right of those within the family to equal treatment and respect, and the absence of such rights to outsider societies. And cultural homogeneity has always factored significantly in deciding which states belong and which do not. Contemporary classifications between so-called “pariah” or “rogue” states, on the one hand, and “liberal democratic” [*494] states on the other, and the prescriptive consequences that are to be attached to these distinctions, he cogently shows, have a rich pedigree. Anti-pluralism’s claim for a distinctive legal position for “liberal democracies” is in fact heir to a familiar nomenclature: that of the “Christian,” or “European,” or “civilized” family of states and nations.

As a historically-grounded study in the evolution and continuities of the concept of sovereign equality in international law, Simpson’s work is first-rate. He is careful to delineate with nuance and precision the spheres of his interest. Unapologetically – and I think rightly so – he comes at the claim of sovereign equality from an exclusively legal perspective. He does not portray sovereignty as a fixed or simplistic black box with which his preferred norms have to wrestle for supremacy, nor as an indecipherable metaphysical concept, nor as the product of unprincipled pragmatic compromises. Relying on familiar sources for a legal scholar – diaries, letters, diplomatic communications, conference working papers, speeches, academic writings and judicial opinions – he capaciously (if occasionally repetitiously) carefully argues for and effectively demonstrates the coherence and continuities of sovereignty and sovereign equality as legitimating legal formulations in the regularization of interstate relationships. His basic thesis, that diplomatic practice as well as the writings of jurists have persistently distinguished among forms of sovereignty, seems to me beyond cavil. His trichotomy of legalized inequalities is also persuasive.

Yet, for lawyers – including those who are academically inclined – the past is worth evoking and arguing about only to the extent that it provides ammunition for dealing with current conflicts. Simpson, clearly an academic, is just as much a lawyer. He tells us that his approach to international law has been influenced by the so-called “English School” of reasoning about the relationship of international law and international society. He identifies three elements of this school as being particularly relevant. These include: 1) emphasis on identifying the historical sources and evolutions of ideas and institutions; 2) a focus more on norms than on specific rules and doctrines; and 3) a view of law as a serious enterprise in which participants are bound together by accepted precepts (p.230). The English School would thus appear to treat the legal sphere as integral to but not beholding to politics. Law is an arena of principled realism that is neither abstractly idealistic nor cynically manipulative. So conceived, the School is a foil both to those American legal realists who treat law as a tool of contingent pragmatism, and to those continental legal philosophers who present jurisprudence as an exercise in abstract normative theorizing. In two striking chapters, Simpson valiantly deploys this methodology to evaluate contemporary debates about the legal validity of the use of force in international relations: NATO’s use of force to overthrow Serb rule in Kosovo, and the U.S. invasion of Afghanistan following September 11, 2001.

The “Kosovo action,” says Simpson “represents a potentially revolutionary moment in the history of the international order.” Discussion of the legitimacy of the action has been framed either as the usurpation of law, or as the {495] start of a constitutional renewal for international order. These arguments, he contends, are not unlike those engaged in by European diplomats and legal scholars following the defeat of Napoleon Bonaparte. He draws parallels between the special role for maintaining Europe’s collective security that was assigned to Austria, Great Britain, Prussia, Russia and France at the Congress of Vienna, and that given the Five Permanent Members of the Security Council at San Francisco. More tellingly, he analogizes the disagreements between the Five Permanent Members (and their supporting casts of academic commentators) over the legal propriety of intervention in Kosovo to that between the Eastern Powers of the Holy Alliance, on the one hand, and Great Britain, on the other, as to the propriety of Great Powers intervention in the Spanish crisis of 1822. And for this reader, most interestingly, he points to similarities between the normative underpinnings of the legal justifications for great power interventions in both Spain and Kosovo. Ultimately, in both cases, it is the self-imposed restraint (or lack of it) generated in arguments among the Great Powers – rather than any simplistic notion of legal sovereignty or of sovereign equality – that is the final arbiter of the legality or legitimacy of intervention.

The cogency of the explanatory value of history, demonstrated in the Kosovo case, is lacking in Simpson’s account of the possible legality of the U.S. invasion of Afghanistan. If Kosovo represents a contemporary checking of legislative equality by legalized hegemony, one might expect the invasion of Afghanistan to draw on the counterweight that anti-pluralism ostensibly presents to existential equality, and to some extent, Simpson attempts to make the case. Terrorism (and those states that supposedly support it), Simpson aptly observes, has taken on the familiar pariah status (previously held by such nomenclature as “primitive,” “uncivilized” or “unchristian”) that is foundational to anti-pluralism. In the nineteenth century, pariah societies were, within the law, treated distinctly differently from member states of the European family. Similarly, the notion of rough parity in the treatment of outlaw states within our contemporary international law is a mistaken one. But despite this insight, much of Simpson’s discussion of the legality of U.S. invasion of Afghanistan is uninspiring, and relies very little on his hitherto carefully presented historical insights. For the most part, he simply rehashes the well-worn disagreements about the extent to which military responses to terrorism fit within the familiar legal paradigm of permissible self-defense under Article 51 of the United Nations Charter.

Concluding that the conventional arguments are either too narrowly formalistic or too expediently pragmatic, Simpson tentatively suggests that the legality of the invasion of Afghanistan is best understood in terms of the existence of a legal regime that discriminates in the application of international law norms between “outlaw” and “non-outlaw” states. Thus, while the United States arguably may legally invoke the self-defense justification in invading a Taliban-led Afghanistan, India may not legally rely on the same justification were it, in response to a terrorist attack across the line of demarcation in [*496] Kashmir, to attack Pakistan. Moreover, how about if Russia were to invade Georgia in response to Chechen terror? One may validly ask whether the advanced justifications are genuinely legal, and if so, what makes them so. If the value of Simpson’s work is that he deploys accepted legal tools in demonstrating and explaining the valid existence of hierarchies in our conception of sovereignty, this strength is conspicuous by its absence in his effort to proffer an acceptable alternative legal basis for evaluating the use of force by the United States against Afghanistan. His explanations, grounded neither in history nor in familiar legal doctrines amount to little more than the assertion of politics as law. And so, at least in the context of Afghanistan, the English School (at least as exemplified in this work by Simpson) provides no more an objectively responsive grounding for the place of law in international relations than the competing “formalist” and “pragmatic” schools.

In GREAT POWERS AND OUTLAW STATES, Simpson has provided a rigorous and useful model for conceptualizing the reach of the doctrine of sovereign equality in international relations. The effort to anchor the concept firmly within a legal framework is an important undertaking. As illustrated by its application to Afghanistan, however, it does have limitations, and the dissonance is likely to be even sharper when his model of legality is tested against recent events in Iraq. This failing, however, should be placed in context. It simply reminds us that the predictive value of legal models is only as good and as replicative as the behavior of human beings and human institutions. Those who seek a descriptive understanding of sovereignty as a legal concept will find that understanding substantially enhanced by Simpson’s work. Those who seek to find in the book a scientific theory of sovereignty will be disappointed, and rightly so.

REFERENCES:

Annan, Kofi. 2004. “Courage to Fulfill Our Responsibilities.” THE ECONOMIST, (Dec. 4, 2004).

Krasner, Stephen D. 1999. SOVEREIGNTY: ORGANIZED HYPOCRISY. Princeton, N.J.: Princeton University Press.

CASE REFERENCES:

THE ANTELOPE, 23 U.S. 66 (1825).

Case Concerning Legality of Use of Force (SERBIA AND MONTENEGRO v. BELGIUM), International Court of Justice (2004), Judgment of Dec. 15, 2004.

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© Copyright 2005 by the author, Maxwell O. Chibundu.

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PROVISIONAL MEASURES IN INTERNATIONAL LAW: THE INTERNATIONAL COURT OF JUSTICE AND THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

by Shabtai Rosenne. Oxford: Oxford University Press, 2005. 262pp. Hardcover. $125.00/£60.00. ISBN: 0-19-926806-1.

Reviewed by Christopher C. Joyner, Department of Government and Edmund A. Walsh School of Foreign Service, Georgetown University. Email: joynerc@georgetown.edu .

pp.485-490

While the demise of the Cold War brought about an end to world communism and lessened bipolar nuclear tensions and superpower rivalries, it also ushered in new hopes that an increasingly complicated globalizing society might be more adequately governed by international institutions and legal rules. Although much still needs to be accomplished in the way of fixing legal remedies for world problems, an encouraging trend since 1990 can be seen in the upsurge of new international tribunals in operation for attaining criminal justice and resolving international disputes. International criminal law for adjudicating the behavior of individuals has become firmly rooted in the creation of the International Tribunal for the Former Yugoslavia (1993), the International Tribunal for Rwanda (1994), and the International Criminal Court (1998), all of which remain active. No less important is the realization that governments have sought to create legal institutions to resolve disputes with other governments. The International Tribunal for the Law of the Sea (ITLOS) became active in 1996 to deal with matters affecting ocean space, and the sixty-year old International Court of Justice (ICJ) has taken on renewed import. In May 2005 two cases are being heard, and there are more cases than ever before (twelve) on the ICJ docket.

In this atmosphere of proliferating international legal rules and jurisprudence, Shabtai Rosenne, the former ambassador of Israel to the United Nations, undertakes a critical examination of one apparently small facet of the international legal nexus—the role of provisional measures of protection in international law. These measures, which are tantamount to a court’s interim injunction, are designed to protect the rights of parties pending settlement of a dispute. Yet, since these measures were first introduced as facets of international law in arbitration agreements at the turn of the century, the binding quality of such orders has been uncertain. Requests for provisional measures—that is, interim measures for protection—hinge on a central question that Rosenne poses at the outset: Do these orders convey any legally binding obligations for compliance by parties to whom they are addressed? The bulk of this slim volume focuses on that question, as Rosenne examines the law, practice and procedures of the International Court of Justice and the International Tribunal for the Law of the Sea.

To introduce the study, Rosenne examines the concept of provisional measures as protective instruments within the context of contemporary international jurisprudence. Special [*486] attention is given to provisional measures as instruments contributing to the settlement of international disputes. As Rosenne is quick to point out, the need for provisional measures becomes greatest in the areas of prevention of use of force taken in violation of UN Charter principles or aggravating disputes that present threats to human life. Regrettably, it is in these same areas that provisional measures are most difficult to apply and enforce.

The volume is divided into two main sections. The first part covers the origins of provisional measures as contained in the texts of various international instruments. Rosenne recounts the early modern history of governments’ resort to arbitration procedures and how these efforts directly influenced the evolution of provisional measures as international legal instruments. The author carefully recounts this history, as focus falls on the Hague Conferences of 1899 and 1907, the experience of the Central American Court of Justice (1907-1917), as well as efforts by US Secretary of State William Jennings Bryan to negotiate treaties containing commissions of inquiry (1913-1915), and the jurisprudence of the Permanent Court of International Justice (PCIJ) (1920-1940). Most appropriately, Rosenne pays closest attention to the binding force of provisional measures under various decisions rendered by the International Court of Justice (1947-2004), as well as the newest multilateral court, the International Tribunal for the Law of the Sea (1998-2004).

Rosenne critically reviews relevant “rules” for and subsequent amendments to the Statutes authorizing both the PCIJ and the ICJ. As Rosenne reminds us, these rules not only set out the functions of these tribunals, they also frame the experience for ordering provisional measures. Particularly for the ICJ, the law and practice affecting provisional measures is left to the juridical experience of the court.

The rules and their subsequent revisions determine the changing authority and scope of jurisdiction of these courts. This reader remains intrigued to learn what events or internal conditions throughout the juridical life of these tribunals prompted the decision that rule changes were necessary. What precisely prompted the PCIJ to revise its rules in 1926, 1927, 1931, and 1936? The ICJ adopted its rules in 1946, but later amended them in 1972, with further revisions coming in 1978. Why? Unfortunately, as Rosenne points out, no records of either court’s deliberations on these matters are publicly available. Finally, the ITLOS amended its rules in 1997. In this regard, the analysis by Rosenne of the rules of the ICJ focus on Articles 73-78, revised in 1978, which concern application of provisional measures. He presents a detailed examination of each proviso as it affects cases relevant to provisional measures. The purpose is to demonstrate the use of provisional measures by the ICJ and the LOS tribunal in case deliberations. Interestingly enough, the ICJ first imposed provisional measures in 1951 in the case between Iran and the Anglo-Iranian Oil Company; for the ITLOS, in its first and second cases—which concerned the vessel M.V. Saiga and involved St Vincent and the Grenadines and Guinea—resort to provisional measures was taken.

The second part of Rosenne’s study [*487] deals with jurisdictional implications and procedural ramifications stemming from application of provisional measures. With regard to the ICJ, two general propositions suggest that court’s competence to apply a provisional measure. The first arises in a situation where a question exists over whether a preliminary objection can be raised, e.g., in the 1957 Inerhandel (Interim Measures of Protection) case involving the United States and Switzerland; the second occurs when the court withholds a grant of provisional measures when it considers that damage respective to the claims made is not irreparable, such as in the 1976 Aegean Sea Continental Shelf (Interim Protection) case involving Greece and Turkey.

Respective to the Law of the Sea Tribunal, the heart of Rosenne’s analysis falls on Article 290 of the 1982 UN Convention on the Law of the Sea, which pertains to compulsory settlement of international disputes. Key here is consideration given to freedom of choice among procedures, namely resort to the ICJ, the ITLOS, or a special arbitral tribunal. Rosenne traces the legislative history of Article 290, drawing heavily upon the Commentary on the Convention prepared by the University of Virginia’s Center for the Law of the Sea. Article 290 empowers the court to prescribe provisional measures, and it deservedly receives close scrutiny.

For both the ICJ and the ITLOS, the scope of jurisdiction to indicate provisional measures rests on the court’s jurisdiction to determine a case brought before it. When an application is made, a fundamental question must be unequivocally answered: Does jurisdiction properly attach to an “unwilling respondent”? If so, jurisdiction applies. Likewise, the legal possibility is raised of ordering provisional measures as facets of a deliberative case solution. If jurisdiction does not apply, then the question of provisional measures is rendered moot.

A welcome inclusion to the textual analysis is an appendix listing those international court cases relevant to provisional measures. While it is interesting to note that six cases occurred under the PCIJ (out of a total of sixty-six cases decided between 1920 and 1942), the ICJ took twenty-nine similar decisions (out of eighty-nine judgments and twenty-five Advisory Opinions taken between 1946 and 2004). Since being activated in 1996, the ITLOS decided four cases involving provisional measures (out of a total of thirteen cases submitted).

There is a certain strength that permeates Rosenne’s analysis. His examination is earmarked more by pragmatic renderings than theoretical conjecture. His intent is to assess the role of international courts in proffering provisional measures, the jurisdictional implications, and how they impact upon case outcomes. To this end, an important consideration becomes whether the ICJ retains jurisdiction over the merits of a claim, sufficiently so that it can establish a basis for action under the ICJ Statute. Accordingly, much of the analysis involves intricate assessment of these courts’ rulings.

Rosenne is clearly cognizant of the fact that words are critical in explaining juridical findings. Indeed, to underscore this point and to substantiate his findings, Rosenne reviews each case that eventuates in orders for provisional [*488] measures heard by the PCIJ, the ICJ, and the ITLOS. The result is a highly articulate analytical assessment, bolstered by more than 120 relevant quotations of authoritative paragraphs extracted from the provisions of these tribunals’ statutes and their decisions over the past eighty-five years. What makes this analysis even more valuable is Rosenne’s discussion of these courts’ use of various terms and phrases, the bases for this usage, and the legal implications arising from how the findings are expressed. This point is simply this: Rosenne makes plain that words are critical in judicial proceedings, perhaps no more so than in the determination of how and why certain decisions are arrived at. In these cases, the object of analysis is the nature of provisional measures orders by a tribunal and the legal and political implications that they carry. The phraseology of paragraphs in a decision provides implicit as well as explicit clues to factors motivating a court’s findings. In this regard, Rosenne unveils the obvious, though often overlooked, important consideration of how and why a tribunal articulates its orders.

The taxonomy of analysis mirrors the chronology of these tribunals’ changes in their rules. One particularly interesting chapter deals with “urgency,” which clearly suggests the need for immediate action. In the ICJ and the ITLOS, “urgency” may take the form of a procedural matter, such as calling the tribunal into session. “Urgency” may also suggest a matter of substance, therefore justifying the need for procedural measures to be adopted by a party to the dispute. Judicial examples of this situation for the ICJ would include the 1973 Nuclear Test Cases (Interim Protection) involving Australia, New Zealand and France; the 1973 Trials of Pakistani POWs (Interim Protection) case involving Pakistan and India; the 1984 case on Military and Paramilitary Activities in and against Nicaragua, involving Nicaragua and the United States; the 2000 case on Armed Activities on the Territory of the Congo between Congo and Uganda; the 1991 Passage though the Green Belt case between Finland and Denmark; and the 2003 Certain Criminal Proceedings Case in France, which involved Congo and France. For the ITLOS, “urgency” is mentioned only specifically in Article 290 of the LOS Convention, and in rules 89-95 of the ITLOS’ Rules of the Tribunal. Two “urgency” cases stand out in the ocean tribunal’s experience: the 1999 Southern Blue Fin Tuna Cases (Provisional Measures) involving Australia, New Zealand and Japan; and the 2003 case on Land Reclamation by Singapore in and around the Straits of Johor, involving Malaysia and Singapore. Rosenne critically examines the case decisions by these tribunals and the international legal implications imposed on them by the factor of “urgency.”

Also interesting was the treatment of the proceedings of tribunals with insights into the how they operate. The respective roles of judges, the president of the court, and the requirement of reporting on compliance are particularly intriguing, as is the occasion when the ICJ issues provisional measures and then transmits its order to the Security Council, albeit not necessarily for any designated Council action (such as in the 1979 case involving US Diplomatic and Consular Staff in Teheran between the United States and Iran). Finally, near the [*489] end of the volume, a brief chapter discusses the duration, entry into force, timing and termination of provisional measures.

There is little question that this discussion is interesting and thought-provoking. Even so, a word of caution is in order. This volume is not intended for the casual reader of international legal materials or the neophyte law student. Rather, it presents a sophisticated examination of concepts and cases, supported by heavily documented scholarship relying on primary sources. At times the text is tediously researched, which requires a careful, deliberate read. The result is a thoughtful legal analysis of relevant case law and juridical decisions relevant to the use of provisional measures by international courts and tribunals. The text contains numerous examples drawn from the case law of these courts that illustrate noteworthy points of jurisprudence. Much is drawn from the ICJ’s experience over the past fifty years, but considerable emphasis is attributed also to the PCIJ (especially the 1932 Status of Eastern Greenland case between Denmark and Norway) and the ITLOS. Indeed, the work will be most appreciated by scholars or specialists researching these international tribunals.

All this brings us back to the initial poser that Rosenne sets up for evaluation: Are provisional measures legally binding? In 2001 the ICJ settled this controversy by ruling that such orders were indeed binding obligations (p.42). Moreover, that court held that non-compliance by a party could amount to a breach of state responsibility and provoke cause for action by the court. Rosenne’s analysis suggests that these measures not only substantially benefit international legal order, but also that they may be counted among the ICJ most successful contributions towards the settlement of international disputes. In this regard, Rosenne’s study provides a genuine contribution to the international law literature as it reveals insights into the functions and thinking of these tribunals in reaching decisions of lasting international legal import.

CASE REFERENCES:

Permanent Court of International Justice:

Legal Status of South-Eastern Territory of Greenland (DENMARK v. NORWAY), A/B, 277. Application filed on 18 July 1932, Norway’s application including request, hearings on 28 July 1932, Order made on 3 August 1932.

International Court of Justice:

Anglo-Iranian Oil Co. (U.K. v. IRAN), ICJ Rep. 1951, 89. Application filed on 26 May 1951, request filed on 22 June 1951. hearings on 30 June 1951, Order made on 5 July 1951.

Interhanndel (SWITZERLAND v. U.S.A.), ICJ Rep. 1957, 105. Application filed on 2 October 1957, request filed on 3 October 1957, hearings on 12-14 October 1957, Order made 24 October 1957.

Nuclear Tests (AUSTRALIA v. FRANCE), ICJ Rep. 1973; Nuclear Tests (New Zealand v. France), ICJ Rep. 1973. Paired cases. Applications and requests filed on 9 May 1973, hearings on 21-25 May 1973, Orders made on 22 June 1973. [*490]

Trial of Pakistani Prisoners of War (PAKISTAN v. INDIA), ICJ Rep. 1973, 328. Application and request filed on 11 May 1973, hearings on 4, 5, and 26 June 1973, Order made on 13 July 1973.

Aegean Sea Continental Shelf (GREECE v. TURKEY), ICJ Rep. 1976, 3. Application and request filed on 10 August 1976, hearings on 25-27 August 1976, Order made on 11 September 1976.

U.S. Diplomatic and Consular Staff in Tehran (U.S.A. v. IRAN), ICJ Rep. 1979, 7. Application and request filed on 29 November 1979, hearings on 10 December 1979, Order made on 15 December 1979.

Military and Paramilitary Activities in and against Nicaragua (NICARAGUA v. U.S.A.), ICJ Rep. 1984, 169. Application and request filed on 9 April 1984, hearings on 25-27 April 1984, Order made on 10 May 1984.

Passage through the Green Belt (FINLAND v. DENMARK), ICJ Rep. 1991, 12. Application filed on 17 May 1991, request filed on 23 May 1991, hearings on 1-5 July 1991, Order made on 29 July 1991.

Armed Activities on the Territory of the Congo (CONGO v. UGANDA), ICJ Rep. 2000, 111. Application and request filed on 23 June 2000, hearings on 26-28 June 2000, Order made on 1 July 2000.

Certain Criminal Proceedings in France (CONGO v. FRANCE), ICJ Rep. 2003, 102. Application and request filed on 9 December 2002, case entered on General List on 11 April 2003, hearings on 28-29 April 2003, Order made on 17 June 2003.

International Tribunal for the Law of the Sea:

The M.V. Saiga No. 2 Case (ST VINCENT AND THE GRENADINES v. GUINEA), ITLOS Rep. 1998, 24. Notification under Annex VII made on 22 December 1997, request to ITLOS filed on 13 January 1998, case transferred to ITLOS on 20 February 1998, hearings on 23-24 February 1998, Order made on 11 March 1998.

Southern Bluefin Tuna Case (AUSTRALIA and NEW ZEALAND v. JAPAN), ITLOS Rep.1999, 280. Joined case. Notifications under Annex VII made on 15 July 1999, requests to ITLOS filed on 30 June 1999, hearings on 18-20 August 1999, Order made on 27 August 1999.

Land Reclamation by Singapore in and around the Strait of Johor (MALAYSIA v. SINGAPORE), 8 October 2003. Notification under Annex VII made on 4 July 2003, request to ITLOS filed on 5 September 2003, hearings on 25-27 September 2003, Order made on 8 October 2003.



© Copyright 2005 by the author, Christopher C. Joyner.

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CONSTRUCTING VICTIMS’ RIGHTS: THE HOME OFFICE, NEW LABOUR, AND VICTIMS

by Paul Rock. NY: Oxford University Press, 2004. 608pp. Hardcover. $150.00/ £75.00. ISBN: 0-19-927549-1.

Reviewed by Susan Sarnoff, Department of Social Work, Ohio University. Email: sarnoff@ohio.edu .

CONSTRUCTING VICTIMS’ RIGHTS is a modern history of the development of victims’ rights in the United Kingdom. Its author, Paul Rock, Professor of Social Institutions at the London School of Economics and Political Science, has copiously researched the primary documents relevant to this ground-breaking change in the criminal justice process. The author relies even more extensively on personal interviews and his keen observation of events as they occurred to trace not only the various pieces of legislation that created the body of rights, but the actions that led to its passage and the actors who effected it.

Rock’s approach presents the events as they unfold. He skillfully weaves relevant political and social history into the story of how the traditional British criminal justice focus on preserving defendants’ rights and viewing crimes as offenses against the Sovereign, was finally balanced with consideration for victims.

In doing so, Rock identifies not only what happened, but how and why. He identifies opposition to the 2003 changes and how they were overcome, as well as such catalysts to these changes as the coming to power of the New Labour Government; trends in both criminal justice (such as restorative justice) and agency administration (including the “new managerialism,” “government as a supplier of services to customers,” the focus on performance measures, and the provision of “seamless” services, despite the fact that they are offered by separate agencies). He also notes the individual cases that brought attention to victim issues and affected public attitudes about them.

Rock observes that, in the UK as in other parts of the world, the effort to secure rights for victims was predicated upon recognition of the need for victims and witnesses to report crimes and participate in the criminal justice process. He points out, however, that the similarity ends there. In particular, the efforts in the UK were “gender free”—that is, they ignored activism by women’s groups to provide different or greater rights and benefits to female victims of such crimes as sexual assault and domestic violence. Further, the UK efforts avoided using “victims as political tools to justify a more punitive criminal justice response,” as Rock notes was done in the US.

Ultimately, the UK redesigned its justice system to enable victims to be heard, while being careful not to erode the presumption of innocence of those accused of crimes. This is a thin line, but Rock makes clear that the careful methods used to maintain it resulted in a fairer system for all in the UK than existed before, [*484] or exists elsewhere in the world.

The book is not designed for the American policy analyst who expects tables and charts of data sandwiched between brief sections of subheaded text. In that sense, it is not a reference book that allows the reader to home in on a discrete section of interest. Written as a history, the book must be read as a history, from start to finish. Readers who invest the time will be richly rewarded by a text that is not written for the skimmer or “homer,” but for the scholar who demands context as well as content. The text provides no quick or easy answers, but thorough background on how and why victims’ rights evolved as they did in the UK.



© Copyright 2005 by the author, Susan Sarnoff.

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HOUSING SEGREGATION IN SUBURBAN AMERICA SINCE 1960: PRESIDENTIAL AND JUDICIAL POLITICS

by Charles M. Lamb. New York, NY: Cambridge University Press, 2005. 318pp. Hardback $70.00 / £45.00. ISBN: 0-521-83944-0. Paper $24.99 / £18.99. ISBN: 0-521-54827-6.

Reviewed by Joyce A. Baugh, Department of Political Science, Central Michigan University. Email: joyce.baugh@cmich.edu

pp.478-482

The problem of the twentieth century is the problem of the color-line.
--W.E.B. DuBois, 1903

W.E.B. DuBois’s prophetic words from more than a century ago unfortunately still ring true in the American polity today. Charles Lamb’s outstanding book, HOUSING SEGREGATION IN SUBURBAN AMERICA SINCE 1960: PRESIDENTIAL AND JUDICIAL POLITICS, offers immensely valuable insight into one important aspect of the metropolitan color line. In this meticulously researched, carefully written, and well-documented work, Lamb illustrates the importance of presidential policies and judicial decisions in maintaining housing segregation in the United States, particularly in suburban communities. Utilizing presidential papers and other archival documents, court decisions, and additional primary and secondary sources, he tells a powerful story of how government officials have contributed to this problem.

The book is divided into seven chapters. Early in Chapter One, Lamb identifies the traditional sociological explanations for housing segregation in the United States: discrimination by the real estate and lending industries, neighborhood preferences of blacks and whites, and economic disparities across racial groups. He then indicates that his goal is not to supplant these explanations, but to go beyond them to consider how politics, policy, and law contribute to the problem. Lamb’s purpose is to show “how various components of the political system – the presidency, the bureaucracy, Congress, and the courts – have addressed or ignored the issue of suburban segregation, thereby affecting its fundamental character” and to illustrate “how leading political figures in the United States have framed and tailored this issue in their zeal to attract and retain the crucial suburban vote” (p.3). In terms of presidential influence, the central focus is on President Richard Nixon’s national fair housing policy. The essence of Lamb’s argument is captured in this passage.

Richard Nixon did not invent the politics of suburban segregation. Opposition to housing integration in suburban America was well entrenched prior to the 1970s. Yet President Nixon solidified public opposition to federal desegregation of the suburbs at a time when the nation was poised for change. He enunciated a policy declaring that the national government would not pressure the suburbs to accept subsidized low-income housing against their will. In so doing, he formally embraced a fundamental suburban belief: that government should not and could not force a community to accept economic – and by extension racial – integration. Nixon’s policy cemented [*479] the politics of suburban segregation that informally existed before his administration. He converted suburban political preferences into national public policy – a policy that remains largely intact to this day. No president between Gerald Ford and Bill Clinton revoked that policy, and Nixon’s federal court appointees perpetuated it through their judicial decisions (pp.3-4).

Lamb asserts that Nixon’s interpretation of federal fair housing law was that the law only forbids discrimination in housing on the basis of race, color, national origin, sex, and religion. The contrasting view is that the law requires integration – not just nondiscrimination in housing.

One of the most useful aspects of the first chapter is Lamb’s description of the myriad ways that the federal government has contributed to racially segregated housing. He emphasizes the impact of federal mortgage guarantee programs that channeled money to the suburbs where middle- and working-class whites were able to buy new homes, the creation of the interstate highway system that made it possible for whites to commute from their homes in the suburbs to jobs in the city, and urban renewal programs that displaced African Americans from their communities without providing sufficient replacement housing. Government decisions about where to build public housing, the location of federal jobs in suburban areas rather than in central cities, and federal income tax deductions for mortgage interest also have contributed to the problem. This brief section is particularly helpful for those who believe that racially segregated housing in the United States is merely the product of private choices, e.g., Justice Kennedy’s majority opinion in FREEMAN v. PITTS (1992) and Justice Thomas’s concurrence in MISSOURI v. JENKINS (1995). Before concluding the chapter, Lamb introduces various constitutional and statutory provisions, judicial decisions, and an executive order that have helped to shape federal fair housing policy. These are discussed more fully in later chapters.

The background and passage of the Fair Housing Act of 1968, including President Lyndon Johnson’s leadership on this issue, is the subject of Chapter Two. The author offers an interesting analysis of Johnson’s transformation from being an early opponent of civil rights, to his painstaking efforts to promote passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965. Lamb chronicles the difficulties Johnson and other proponents of the Fair Housing Act faced in getting congressional approval. He notes three critical events that helped to spur passage: 1) the reversal of a key Senator’s long-standing opposition to open housing legislation (Everett Dirksen, Republican of Illinois), 2) the report of the Kerner Commission, which examined the urban rebellions of 1967 and 1968, and 3) the assassination of Dr. Martin Luther King, Jr. Lamb then summarizes the key provisions of the Act and describes the weaknesses that have prevented it from being fully effective. Ironically, the main problem is attributable to Senator Dirksen’s support of the bill. That is, as a condition of his approval, he rejected proposals for strong enforcement by the Department of Housing and Urban Development (HUD). In the Fair Housing Act, “a majority of both houses of Congress agreed that HUD would have only the power of ‘conference, [*480] conciliation, and persuasion’ in housing discrimination cases. This means that in practice, HUD’s enforcement power extends only to asking the parties of a fair housing dispute to come together and resolve the complaint, with HUD’s assistance” (pp.47-48). By contrast, the Equal Employment Opportunity Commission (EEOC) was given significant powers to enforce Title VII of the Civil Rights Act of 1964. This includes the power to file lawsuits in federal district court, to initiate investigations even without specific complaints, and to seek court injunctions when agency officials think the Act has been violated.

Chapters Three and Four are particularly rich in their analysis of bureaucratic and presidential politics. Chapter Three focuses on the extensive efforts of George Romney, Nixon’s HUD secretary, in promoting fair housing. Romney was convinced that integrating the suburbs, both economically and racially, was necessary to end poverty and resolve racial conflict. With the assistance of key HUD staff members, he initiated two extensive programs: Operation Breakthrough and Open Communities. Operation Breakthrough was designed primarily to build a substantial amount of federally-assisted low- and moderate-income housing in both urban and suburban areas. As HUD’s general policy moved toward housing desegregation, however, “Breakthrough soon came to represent more than a large-scale attempt to build low-cost housing; it was used to help spearhead desegregation” (p.63). Not surprisingly, the program provoked hostile reactions from many of the communities targeted as demonstration sites, especially the suburbs. Despite guarantees that communities which accepted the new low-cost housing would receive top priority for funding from other HUD programs, local officials mounted heavy opposition to the program.

From the outset, Open Communities was an even more ambitious project than Operation Breakthrough. Its primary purpose was direct integration of the suburbs, not simply constructing low- and moderate-income housing. What is most astonishing is that Open Communities was planned in secret by Romney and key HUD staff members “with virtually no White House knowledge or involvement for roughly eighteen months into the administration” (p.69). Lamb utilizes internal HUD memoranda and other documents to tell an exquisitely detailed story of the project’s development, implementation, and ultimate demise. He stresses that Romney’s goal of racial and economic integration of the suburbs was opposed not only by suburban officials and members of Congress, but it conflicted directly with Nixon’s suburban electoral strategy.

Although Nixon generally supported (at least initially) Operation Breakthrough, the Open Communities project infuriated him, and, as a result, Nixon withdrew control of fair housing policy from Romney and HUD and centralized it in the White House. Lamb traces this shift in great detail in Chapter Four. He begins by discussing how Nixon’s approach to civil rights changed from one that was generally in line with the Republican Party’s more progressive stance on civil rights to a more conservative direction as he pursued his famous “Southern Strategy” in the 1968 [*481] presidential election. The idea was that the key to Republican electoral success was to win the traditionally Democratic white southern vote, along with the white suburban vote in the rest of the country. These constituents would be assured of limited presidential enforcement of civil rights and the appointment of conservative federal judges. Lamb also attributes the change to Nixon’s personal views on civil rights and race. He notes that, John Ehrlichman, one of Nixon’s closest aides, has indicated that Nixon believed that African Americans were “genetically inferior to whites” (p.119). After providing this background, the bulk of the chapter describes Nixon’s rocky relationship with Romney and explains how Nixon centralized fair housing policy in the White House, including the roles played by the president’s chief aides.

In Chapter Five, Lamb demonstrates that Nixon’s policy on suburban housing withstood five subsequent presidential administrations, even in the face of efforts to change things. Republican presidents Ford, Reagan, and George H.W. Bush were not interested in advocating suburban housing integration and were especially opposed to encouraging subsidized housing in those communities. The HUD secretaries who served under Democratic presidents Carter and Clinton sought to introduce initiatives aimed at integrating the suburbs, but substantial opposition led them to back away from those efforts. Henry Cisneros, Clinton’s HUD secretary, was somewhat successful in integrating existing public housing, and he was assisted in this endeavor by favorable federal court decisions.

While important federal court rulings are discussed in earlier chapters, Lamb’s primary concern in Chapter Six is on Nixon’s appointees to the federal courts and their rulings on housing segregation. After discussing the Warren and Burger Courts’ fair housing decisions and noting the paucity of rulings by the Rehnquist Court, he examines important lower federal court rulings, specifically those where opinions were written by Nixon appointees. Lamb indicates that only one major liberal decision regarding suburban integration was written by a Nixon appointee to those courts. While concluding that Nixon’s appointees made decisions that were in line with the president’s views, he is very careful in drawing conclusions about presidential influence. “Whether President Nixon directly influenced his judges or obliquely affected policy by picking judges who were inclined to oppose suburban integration, he would have been delighted with most of the decisional outcomes. It is far easier, in the end, to demonstrate that Nixon’s policy affected subsequent administrations and HUD than it is to show that he influenced his judicial appointees on the issue of suburban integration. Archival evidence that might demonstrate presidential influence on federal judges is simply less available than comparable evidence in the massive archives for presidential administrations, members of Congress, and federal agencies” (pp.252-253).

In a brief concluding chapter, Lamb offers final observations about the difficulty of studying presidential influence on domestic policy, President Nixon’s fair housing legacy (including its implications for the Republican Party’s continuing electoral strategy), [*482] and the possibility of achieving meaningful suburban housing integration in the future. On this latter point, Lamb is neither overly pessimistic nor optimistic. He asserts that although there currently seems to be no presidential, legislative, or judicial desire to work toward racial and economic integration of the suburbs, “the end is still unknown” and “[o]pposition to integrating the suburbs may wane over time” (p.263). The book’s final passage is nonetheless, sobering.

Racism has subsided to some extent, and people of different colors and ethnic backgrounds can coexist more peacefully today than in the past, living in the same neighborhoods. The rich and the poor, however, remain starkly segregated. . . . The well-to-do, in an attempt to protect their families, property, and quality of life, will continue to keep the poor out of their neighborhoods by resisting the construction of low-income and even moderate-income, housing. In this sense, Richard Nixon’s legacy may persevere beyond racial suburban integration. The politics of suburban segregation may live on, with income, rather than race, the critical factor in the future (pp.264-265).

While not contesting Lamb’s conclusions regarding the impact of income on suburban segregation, one could argue that race will continue to play a dominant role as well. A Dateline NBC broadcast from June of 1997 demonstrated that even when upper-income African-Americans moved into the community of Matteson, Illinois, a well-to-do suburb south of Chicago, white residents moved out. At the time of this broadcast, the population was evenly split, but 2000 census figures showed that the proportion had changed to nearly two-thirds black and one-third white. If that trend continues, the likelihood is that by the next census, the figures will be even starker.

HOUSING SEGREGATION IN SUBURBAN AMERICA SINCE 1960 is a remarkable research effort that is well-organized, well-written, and highly readable. It makes an important contribution to the literature of several fields – presidential politics, public policy, public administration, judicial policymaking, and race and politics. It will be useful both to scholars and for undergraduate and graduate courses in these fields. In addition, however, the book is accessible to members of the general public who are interested in understanding why suburban segregation continues to be a major civil rights issue. Finally, despite the prevailing view that suburban segregation is an intractable problem, Lamb provides a compelling reminder that strong presidential and judicial leadership could go a long way toward addressing it.

REFERENCES:

DuBois, W.E. Burghardt. 1903/1961. THE SOULS OF BLACK FOLK. Greenwich, CT: Fawcett Publications, Inc.

CASE REFERENCES:

FREEMAN v. PITTS, 503 U.S. 467 (1992).

MISSOURI v. JENKINS, 515 U.S. 70 (1995).


© Copyright 2005 by the author, Joyce A. Baugh.

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TERM LIMITS AND THE DISMANTLING OF STATE LEGISLATIVE PROFESSIONALISM

by Thad Kousser. New York: Cambridge University Press, 2005. 286 pp. Paperback: $29.99 / £17.99. ISBN: 052154873X. Hardcover: $70.00 / £45.00. ISBN: 0521839858

Reviewed by Ashlyn Kuersten, Department of Political Science, Western Michigan University. Email: kuersten@wmich.edu .

pp.475-477

Do term limits affect the behavior of legislators and how they organize themselves? Do term limits affect legislator’s roles in the political process and the policies they produce? Thad Kousser’s TERM LIMITS AND THE DISMANTLING OF STATE LEGISLATIVE PROFESSIONALISM answers these questions concisely and clearly in an exceptionally well-written book. Not only is the book accessible to an undergraduate audience but it would also be useful to graduate students. Complicated regression tables are available in the technical appendices to each chapter, but students with a weak grasp of statistical models would find the book thorough and reachable.

Kousser begins by showing how state legislatures in the US are remarkably similar, making comparisons between the states possible. All states have three branches of government, use candidate-based elections, all but two have bicameral legislatures (with Oklahoma and Nebraska the exceptions), all allow candidates to declare an official party affiliation, and the largest gap between Bush’s and Gore’s portions of the 2000 presidential vote was forty percentage points. In the last ten years, twenty-one states have adopted limits on legislative terms (these limits were ultimately overturned in five) and those limits have only recently taken effect. The similarities between the states make it possible for Kousser to isolate the effects of a legislature’s professionalism and its term limits to determine the impact of a legislature’s design on its form and function.

Any law that prevents legislators from serving for more than a given number of terms or years constitutes a legislative term limit. State legislative term limits are clearly constitutional, despite an overturned federal appeals court ruling striking down lifetime limits in California, and various state decisions invalidating specific initiatives. Federal term limits, of course, were held unconstitutional in the Supreme Court’s 1995 THORNTON decision. The populist idea of term limits can now be labeled as a movement. Lawmakers, of course, have been reluctant to curtail their own careers, so term limit advocates have been forced to work through the initiative process. Surprisingly, term limit laws that have been passed are not uniform across the states. “Laws do not guarantee that politicians will again become ordinary citizens in the rotation of authority that Aristotle promoted . . . state political systems provide many opportunities to run for other offices” (p.8). Lengths of careers allowed in each house range from six to twelve years. Limits can ban future runs for a legislative seat for life, [*476] or simply restrict consecutive years of service. Though originally advocated as a way of preventing legislators from running for additional offices, this has not happened. For example, 50 to 69 percent of termed-out California assembly members ran for another office at the federal or local level. Thus, although term limits were advocated as a way to remove election incentives, limits have not been successful.

Kousser categorizes term limits as a simply dichotomy. That is, while there are differences in state laws, comparisons of the impact that term limits have had on various states is an all-or-nothing characteristic of a state. Variation in individual term limit laws can largely be ignored. Laws that have gone into effect are the shorter ones, and sufficient time has not passed since the “implementation of most consecutive-service bans to see many termed-out members return to a house and to gauge their impact” (p.10).

Kousser begins with anecdotal sketches of how various legislatures have changed since the implementation of term limits. Specifically, the similarities and differences between comparable sessions in the California and New Mexico legislatures before and after term limits are identified. The remaining chapters of the book demonstrate how a legislature’s form (e.g., stability of leadership, role of committees and legislative achievement) and function (e.g., bargaining within the governmental structure) change with limitations on member tenure. His conclusions? Redesigning legislatures alters their policies but little else. Professional legislatures have larger staffs that allow for more knowledge of issues. As a result, professional legislatures tend to be more productive. In essence, professional legislatures have more time to perform tasks, and their increased salaries make up for the opportunity costs of not performing private sphere duties.

Advocates of term limits argue that limitations on legislators’ service would alter the institutions dramatically; new types of legislators would be drawn into office, bringing qualities not previously found in state legislatures. As George Will predicted, term limits “would increase the likelihood that people who come to Congress would anticipate returning to careers in the private sector and therefore would, as they legislate, think about what it is like to live under the laws they make” (1992, at 201). But Kousser did not find this to be the case. The numbers of women and minority members, for example, did not change. Many termed out legislators go on to run for another office, gain positions in the governor’s office or join political lobbies. Nor was there much change in the experiences that new members brought to statehouses. New legislators tend to come from the same occupational backgrounds as before, and most continue to come from local government. Shorter terms reduce incentives for seasoned members to specialize in a particular policy area, so legislators under term limits tend to be “generalists.” There is no difference in the percentage of introduced bills that subsequently become law, and term limited legislatures play a diminished role in crafting state budgets than had been hoped by advocates.

Most interesting is Kousser’s finding that term limits produce less innovative [*477] policies. Professional legislatures have more time to craft innovative solutions to policy challenges. In essence, when term limits replace veterans with less knowledgeable new members, policy innovation declines significantly.

A thorough analysis of the impact term limits have had on the functions of state legislatures, Kousser’s book is exceptionally well written.

REFERENCES:

Will, George. 1992. RESTORATION: CONGRESS, TERM LIMITS AND THE RECOVERY OF DELIBERATIVE DEMOCRACY. New York: Free Press.

CASE REFERENCES:

US TERM LIMITS, INC. v. THORNTON, 514 US 779 (1995).



© Copyright 2005 by the author, Ashlyn Kuersten.

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