THE PUBLIC INTEREST IN REGULATION

by Mike Feintuck. Oxford: Oxford University Press, 2004. 299pp. Cloth. $99.00/£50.00. ISBN: 0199269025.

Reviewed by Robert T. Nakamura, Rockefeller College of Public Affairs, University at Albany, SUNY. Email: RNakamura@uamail.albany.edu .

pp.793-796

Mike Feintuck observes that the term “public interest” is frequently evoked in legal and political discourse to justify the use of power, but there is little agreement on what it actually means or on the way to determine what action it requires. He goes further to argue that in regulatory affairs the diffuseness of the term has permitted it to be captured and more narrowly defined by advocates of a market-based perspective. This, in turn, leads to regulatory systems that fail to protect important communal values. Finally, he sets forth a rationale for developing a clearer, more determinative conception of the public interest. These observations and arguments are based on an extensive review of legal literatures and a comparison of how the U.K. and U.S. regulate food and the media.

Feintuck begins with the difficult task of simultaneously arguing that the concept of the public interest is both without meaning and is nevertheless important. At various times he quotes sources that dismiss the definitions of the public interest as overblown, irrelevant, mythic, and folkloric, and cites others who have sought in vain for universal principles or even ways of calculating them (disparaged as head counting schemes). Yet, while he shows how the concept often appears “to be an empty vessel, to be filled at different times with different content,” he insists that the reader take the term seriously. He makes his point in two ways. First, he observes that a conception of the public interest has been persistently evoked by participants in debates over regulation, and the concept has been taken seriously enough for competing claims to be advanced. Second, his more substantive argument arises from an insistence that, in regulatory affairs, a missing conception of the public interest leads regulators to fail in meeting the obligation to protect the most important public values. He bases his argument on a review of the literature and an examination of regulatory issues centered on the precautionary principle.

Feintuck’s extensive review of relevant works by lawyers and academics who use concepts from economics, liberalism, civic republicanism, critical theory, and other approaches, indicates that with the exception of the economics-based approaches, most of the other authors have not found a single conception of the public interest nor a method for calculating such an interest upon which they can agree. In many instances writers have dismissed the enterprise of defining such an interest altogether. By contrast, advocates of market-based models have a clear vision in which the public welfare is advanced most of the time by individuals freely defining and seeking their own advantage in activities with government intervention occurring only in response [*794] to market failures. Moreover, lawyer-economist-risk managers have articulated elaborate schemes for identifying when to intervene (types of market failures), methodologies for making decisions (quantitative risk assessment and cost benefit analysis), and justifications based on serving the public (defined as consumers, or some other specific group whose interests can be determined).

There are, in Feintuck’s view, many problems with this approach. He echoes the critique of others that while “the economist, accountant and mathematician may be drawn into coolly valuing what is measurable, a democratic audit should instead focus on measuring what is considered valuable” (p.18). Feintuck further notes that “an economic version of the public interest . . . is not meaningfully value neutral. . . [I]t privileges systems of market relations and therefore tends to confirm and perpetuate existing social divisions and hierarchy (p.37). While many conceptions of the public interest are value laden, he notes that the values of this one are rarely explicitly articulated. He sees in the assumptions of this calculus “a crude majoritarianism and a legitimation of existing power relationships” (p.42).

The separate discussions of regulation in the U.K. and U.S. and the chapters comparing the approaches are quite informative. Some of the broad differences between the systems have been noted by others, especially differences in conceptions of rights and frequency of judicial intervention. The choice of regulatory topics—emphasizing food and media—is interesting for its similarities in public demand for regulatory protections across the advanced industrialized world from “raw market forces” (p.159). This commonality supports a broader claim made elsewhere by Feintuck that there is some common conception of the public good that is evocable and consequential. In these countries and within the European Union, this desire for protection from potential harm raises the discussion over the proper extent and meaning of the precautionary principle. Feintuck uses these cases to criticize narrowing the concept of the public interest (e.g., consumer interest). When people are defined as citizens, their interests are conceptualized more broadly (and with much greater difficulty) than when they are seen as consumers. This is, of course, a new take on an old argument. Formulating it within the public interest and regulation discourse is a useful contribution.

Feintuck’s point is that in the U.S. (and by extension the U.K.), the concept of the public interest represents less of a “conceptual dead end . . . . but rather appears to represent a missed opportunity” (p.157). This void has been filled by technical legal, scientific, and economic arguments based on narrower consumer or other values. As a result, the regulatory systems of both countries fail to reflect the “set of non-commodity values on which . . . regulation is premised” (p.159). He concludes: “It is clear that in so far as regulation in such fields in both jurisdictions once revolved around a more or less vague concept of public interest, this has now been marginalized, with centre stage taken by an apparently clear, and certainly more fashionable, market-oriented approach” (p.165). He deplores this state of affairs, and tries to [*795] devise a way out which he believes lies with a better formulated conception of the public interest.

The case studies bring Feintuck to a series of issues at the heart of the problem. They include 1) failure to identify with any degree of precision the range of collective values; 2) failure to structure regulatory systems to achieve collective values; 3) a tendency to adopt partial versions reflecting only a subset of values (economic) while marginalizing others (citizen); and 4) failure of the legal system to protect those neglected public values. These failures, in turn, become Feintuck’s formulation of the challenges which must be met by any adequate conceptualization of the public interest as a shaping principle for regulation. Although he discusses some approaches to these challenges (the dialog of civic republicanism and other devices), it is clear that identification of a concept of the public interest, the consequences of not having one, and a formulation of conditions for an adequate definition and system, are meant to constitute Feintuck’s contribution to the discourse. He demonstrates that we do not have a working conception of the public interest and specifies the consequences of that deficiency. That is quite enough for one book.

Of course, Feintuck’s complete argument is subtler, sometimes more qualified and more nuanced than my brief summary indicates. He does, however, present two contradictory assertions about the conception of the public interest: it is too diffuse to guide action, and in its market guise (represented by Stephen Breyer) it is much too narrowly defined and too restrictive. Feintuck’s major objection – if proportion of attention paid in the book is a good indicator of importance – has less to do with diffuseness, which is most developed in the first part of his book, than it does with the economic model and its widely utilized conception of the public interest, which figures largely in much of the remainder. It may be a matter of one’s values whether she would consider that economic formulation as having “captured” the definition of the public interest, or simply as having prevailed in the debate by producing the most useful and accepted definition.

My second observation deals with the nature of Feintuck’s evidence and its influence on his conception of regulation. Despite disclaimers, he relies primarily the writings of lawyers (from within the economics and law camp and beyond), and discussions of regulatory decision making philosophies and cases in the U.K. and U.S. Although there is some discussion of changes in approach over time, the conception of regulation that Feintuck develops is narrower than one finds among political scientists who consider such issues. This sometimes leads to greatly different explanations. Capture of regulatory machineries by private interests, according to Feintuck, centers on the absence of a clearly articulated view of the public interest, thus rendering it “fair game.” For political scientists of an earlier era, capture was a function of the natural history of regulatory agencies in which the zeal for reform diminished while involvement by continuing economic interests remained. More recently, others have argued that private interest capture is less an inevitable function of time than it is dependent on [*796] the state of political constituencies surrounding a particular regulatory issue. Furthermore, at least two other sources of changing regulatory mission have been identified in the political science and organization literature—bureaucratic drift (the principal-agent problem in which agencies pursue their own goals) and political drift (susceptibility to changes in political decision-makers due to insufficient insulation for agencies).

Another difference lies in how to interpret the absence of a clearly defined set of statutory principles to guide regulation. Feintuck finds such a context to be conducive to his preferred approach for defining a public interest which is to make decisions in a broadly informed, participatory, anticipatory process of some sort. Many political scientists would react differently. For students of policy implementation, for example, the absence of clarity is a sign that policy makers could not agree on the elements they left ambiguous despite feeling obliged to take some legislative action. Students of environmental regulation would see parallels in debates over “how clean is clean enough,” or “how safe is safe enough,” vague concepts used by bureaucrats to focus concrete activities.

We are indebted to Mike Feintuck for a sustained and focused examination of the legal literature’s varied perspectives on the public interest. It is an achievement because there seems to have been a sustained effort in this literature to avoid the topic, to dismiss it, or to push it to the margins, while focusing on something else. Feintuck convincingly demonstrates that the concept does seem to have a life of its own despite these efforts at marginalization. Furthermore, although the topic has been addressed widely but fleetingly by scholars, it continues to slip from the tongues of regulators, legislators, paid advocates for special interests, and citizen activists in discourse over what should be regulated and how. Until concepts catch up with talk, Feintuck’s conclusions about what an adequate concept entails can stand as a way of measuring the gap between talk and reasoned expectations.

© Copyright 2005 by the author, Robert T. Nakamura.

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LAW AND GOVERNANCE IN POSTNATIONAL EUROPE: COMPLIANCE BEYOND THE NATION-STATE

by Michael Zürn and Christian Joerges (eds.). Cambridge University Press, Cambridge, 2005. 312pp. Hardback. $75.00 / £45.00. ISBN: 0521841356.

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, Zaragoza, Spain. E-mail: garruego@unizar.es

pp.788-792

LAW AND GOVERNANCE IN POSTNATIONAL EUROPE is the result of a long and interdisciplinary work between lawyers and political scientists whose origins can be traced back to 1997 and whose guiding question is whether “law – understood as a normatively meaningful form of social regulation – [is] conceivable or indeed possible beyond the nation-state.” Under the conviction that, to be considered legitimate, governance beyond the nation state must contain elements of law, the authors try to find the answer to that dilemma through empirical research comparing compliance with three different sets of norms at three different levels of governance – Germany, the European Union, and the World Trade Organization. Therefore, LAW AND GOVERNANCE IN POSTNATIONAL EUROPE presents an empirical analysis of compliance directed by deep theoretical questions concerning, not only the possibility of law beyond the nation state, but the concept and the very nature of law itself. Actually, the authors underline these profound normative concerns as one of the differences between their study and other analyses of compliance which have inspired it.

The three sets of comparisons that constitute the core of the empirical analysis contained in the book were the result of the combination of two steps: the type of policy –constitutive, regulative and redistributive – and its implementation at three different levels of governance –Germany, the EU and the WTO; this combination leaded to the study of compliance with subsidy controls in Germany, the EU and the WTO; foodstuff regulations in the EU and the WTO and, finally, redistribution of financial resources in Germany and the EU. The departing hypothesis of this case-study design was that comparing compliance with regulations that share a similar content and depth across those three political settings, could be a good way to identify the key variables explaining “the determinants of compliance.” Yet, one of the first theoretical problems the authors had to overcome was the possibility of that comparison itself. Contrary to those who affirm the special nature of the European Union, a feature that would not allow such a comparison with a nation state, such as Germany, or an international organization, such as the WTO, the study treats Germany, the EU and the WTO as governance systems that are comparable, though without denying or ignoring their differences: all of them establish binding rules to promote the collective wellbeing and the three of them occasionally face non-compliance problems and must find ways to promote compliance. [*789]

The conceptual and analytical framework for the research develops the concept of compliance as different from implementation and effectiveness, though strongly connected, and as having a double dimension: the difference between obligation and behavior, and how those eventual differences are dealt with –“how non compliance is handled.” By combining both compliance dimensions, the authors use four values to describe the different degrees of compliance observable in the three different cases studied: good compliance –“if the difference between the prescriptions and proscriptions of a norm is non existent or negligible and its addresses do no publicly voice their discontent with a rule,” recalcitrant compliance – “if the difference between the prescriptions and proscriptions of a norm is non existent or negligible but nevertheless its addresses publicly voice their discontent with it,” initial non compliance –“if a significant difference between the prescriptions and proscriptions of a norm and a change in the behavior of its addresses due to allegations of non compliance and the activities following the allegation” are observable – and compliance crisis – “if a significant difference between the prescriptions and proscriptions of a norm and no change in the behavior of its addresses although the practice has been detected, alleged and/or outlawed by a decision of an authorized dispute settlement body or court” are observable (p.9).

The book uses three different sources to determine whether there is a rule break – subjective evaluation, statistical data provided by International Organizations and doctrine – and the explanatory variables derive from two sets of non compliance sources: voluntary and involuntary non-compliance and non-compliance due to a substantial challenge to the norm or due to a technical problem rendering compliance impossible despite a willingness to do so. These sets – cheating/ambiguity and wrongfulness/lack of capacity to implement – relate to several theoretical perspectives explaining compliance and non-compliance. The authors conceive these perspectives not as competing points of view but as complementary and strongly connected theoretical frameworks which provide the variables to explain the empirical results obtained in the cases studied:

  • Rational institutionalism, which provides two variables explaining compliance: monitoring and sanctioning.
  • Legalization, which provides three different values: juridification, legal internalization and civil internalization.
  • Legitimacy, which focuses on participation and social acceptance.
  • Management, which relates to resources/capacity and responsiveness/reflexibility.


According to this analytical/conceptual framework, Chapter 2 (State Aid Controls in Germany, the EU and the WTO), Chapter 3 (Foodstuff Regulations in the EU and the WTO), and Chapter 4 (Redistributive Policies in Germany and the EU) follow the same structure:

  • First, a description of the contents of the regulation under examination and presentation of some examples of how non-compliance is handled are provided.
  • Second, each study examines the degree of compliance with the specific regulation at the different levels [*790] establishing a kind of “compliance ranking.”
  • Third, the variables derived from the four theoretical perspectives are used to explain the empirical analytical results in order to determine which ones seem to have the greatest influence.


Using this design, the authors reach two different kinds of conclusions, those derived from the empirical analysis and those linked to the theoretical concerns guiding the research, with special attention to the European integration process.

With regard to subsidy control, the EU achieves the best compliance rates and, since 1993, has the strictest state aid control regime, with considerable correspondence between member states’ practice and the norms. On the other hand, there has been no compliance with the rules in Germany, and the same applies to the former GATT until 1995, when its capacities were strengthened by the creation of the WTO. According to the authors, these empirical results are best explained by the rational institutionalism and legalization variables.

The empirical analysis of compliance with foodstuff regulations across the EU and the WTO again shows the European Union as having the best compliance results, though cases of initial non-compliance are detected, while figures relating the WTO reveal a number of permanent compliance crises. The low compliance records of the two institutions are best explained by the legitimacy theoretical perspective: the foodstuff regulation analysis finds that a detailed institutional design and a sophisticated set of legal instruments are effective means for eliciting compliance, to the extent that they are embedded in and supported by public discourse and social acceptance.

With respect to the intergovernmental redistributive policies in Germany and the EU, there has been “good compliance” in the latter, but the empirical data reveal “recalcitrant compliance” in Germany. From the authors’ perspective these observations are best explained by the second variable within the management theoretical perspective, responsiveness/reflexibility. The lower German compliance rate derives from an outdated social consensus regarding the country’s redistributive regime: there would have been a social paradigm shift according to which redistributive policies have to be tied to a demand to the recipients to make a contribution to overcome their dependency, not reflected by the institutional structures.

From a general perspective, LAW AND GOVERNANCE IN POSTNATIONAL EUROPE rejects the hypothesis that compliance rates are systematically better within the nation state, as in the three cases studied the best compliance records are those of the EU. Thus, it is not clear that reliable law and legal equality can be expected only in the national context. Though the authors find that compliance beyond the nation state can be achieved, their study suggests that this depends on the interplay of a number of different compliance determinants; in other words, compliance is determined by interaction among variables from the different theoretical perspectives, which, as said above, should not be considered as isolated and competitive points of [*791] view but as interactive and complementary.

In all the cases good compliance records are generally accompanied simultaneously by both the principles of rational institutionalism and legalization; actually, the authors conclude that it is their interaction that makes the EU so effective. But, as especially the foodstuff study shows, the determinants of rational institutionalism and legalization can break down when legitimacy fails. Thus, the absence of legitimacy works as a disturbance variable, as legitimacy is decisive for handling compliance problems effectively. Actually, the research indicates that the Achilles heel of international regulations is, precisely, the existence of territorially fragmented publics. With respect to the management perspective, it seems to be only partially relevant. It is true, however, that its second dimension, responsiveness/reflexibility, is an important reason for compliance problems, related to the perception that there is no chance to adapt rules to reflect changing preferences and needs.

The research carried out in the book would have relevant implications for the analysis of the European integration process. The authors underline the fact that the European Union has the same Achilles heel of every international regulation -an insufficient degree of societal integration binding together the different political discourses in the member States, which makes the EU still far from being a political community. Currently, the European Union is a community of law without social prerequisites and, as a consequence, law is vulnerable to any challenge to its legitimacy.

In conclusion, from the point of view of the authors, a monopoly of force is not required to generate political union between territorial political units, constitutionalism is not restricted exclusively to the nation state, and the distinction between hierarchical coercive and horizontal non-coercive implementation of norms is too simplistic. In their opinion, a more adequate image for understanding and describing politics in postnational [*792] constellations is that provided by the concept of multilevel governance, where power is shared among different levels of decision making, brought together by the force of legal rules. However, its weakness appears when regulations contradict the perceived interest of a broad and nationally fragmented public. As a consequence, executive multilateralism should be substituted by a socially sanctioned, and therefore democratically legitimized, multilateralism: “our thesis [is] that postnational governance needs not choose between anarchy and full-blown hierarchy, but can (and does) realize new modes of governance which go beyond that dichotomy,” being “well advised to respect the insight that valid law should not be decoupled from democratic procedures and public support” (p.217). Against this background, “the increasing juridification of European and international politics, the extension of participation of the European Parliament, and the pursuit of new forms of participation for non-governmental actors in the EU and the WTO must also be understood as part of an institutional learning process with the attempt being to eliminate perceived deficits. Thus, while economic and political globalization may present a challenge to the institutional order of the national constellation, it is at the same time a chance to meet this challenge constructively, with a strategy of developing and improving the institutional characteristics necessary for effective and legitimate post-national constellations” (p.217).

© Copyright 2005 by the author, Gonzalo Arruego.

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LEGAL REASON: THE USE OF ANALOGY IN LEGAL ARGUMENT

by Lloyd L. Weinreb. New York: Cambridge University Press, 2005. 192pp. Hardback. £40.00/$60.00. ISBN: 0-521-84967-5. Paper. £14.99/$18.99. ISBN: 0-521-61490-2.

Reviewed by Lief H. Carter, Department of Political Science, The Colorado College. Email: lhcarter@coloradocollege.edu .

The April 10, 2003 issue of THE RECORD, the independent student newspaper at the Harvard Law School, carried the article “Ten Professors to Take.” The article ranks Professor Lloyd Weinreb among Harvard’s most sought after professors and describes him, in part, this way:
What students will find in Weinreb is a model of competence, a master of clarity, and someone who knows exactly where to put the spotlight on the issues. His mild-mannered approach also masks considerable dry wit that makes his classes enjoyable even in the earlier hours.


The article also recommends Professor Scott Brewer with these words:
Much maligned for his logic-strewn take on the law, Brewer’s appearance on this list may shock those who have had him for Contracts. But Brewer’s bread and butter is jurisprudence, and that’s where his use of “lush green” formalism will challenge students to reconsider the bedrock of judges’ assumptions.


In LEGAL REASON, Weinreb, a pragmatic “master of clarity” takes down his junior, the “lush green” formalist.

Readers who follow jurisprudential literature, either professionally or simply because such literature tends pleasantly to stimulate the brain in ways that much conventional social science writing does not, will probably enjoy this short book immensely, rather as one enjoys completing a satisfying Sunday crossword puzzle. Readers who do not follow this literature can safely skip it, not because the book lacks merit but because they will not be able to shake the sense that they are simply witnessing, from a distance, a Harvard Law School in-house intellectual food fight.

The casus belli is Scott Brewer’s 1996 HARVARD LAW REVIEW article, “Exemplary Reasoning: Semantics, Pragmatics, And The Rational Force Of Legal Argument By Analogy.” Here, in a nutshell, Brewer argues that reasoning by analogy, far from lying close to the heart of legal reasoning, as both the case method of legal education and Levi’s (1962) classic work on legal reasoning suggest, is of no independent help in legal reasoning at all. Sometimes analogical reasoning is disguised deductive reasoning, and the mechanisms of deductive logic do the real heavy lifting. More often, analogical reasoning does no legally analytical work at all because analogies are a dime a dozen. Apples and tennis balls are both round and about the same size, but what would warrant drawing an analogy between them? What makes a similarity a relevant similarity? [*785]

According to Brewer, Analogy Warranting Rules (AWRs, in his analysis), not the analogies themselves, by defining the relevance of some analogical similarities but not others, do the heavy lifting. To illustrate, the analogy between cases involving drug sniffing dogs and cases in which a police officer overhears an incriminating conversation in public does not itself generate the conclusion that dog sniffs are not protected by the Fourth Amendment. The analogy simply steers us toward the more general AWR: information obtained “about a person or thing in a public place without intrusion on the person or taking possession of or interfering with the use of the thing” (p.24) is not a protected search. Hence a dog sniff is not a protected search.

The core of Weinreb’s rejoinder is simple. Judicial justifications in all areas of American law routinely place emphasis on analogies. Why? An opinion that leaves out this step has something missing; “without the analogy, the Court’s argument is incomplete” (p.60). Why do we perceive holes in opinions that skip this step? Because without that step, judicial decisions cease to be judicial—bound and determined by the specific facts of the dispute between the parties—and become legislative actions. A judicial opinion in a dog sniffing case that simply proclaimed the AWR above would read suspiciously like a general statutory order. The analogy, because it ties the facts of “the case at bar” to the facts of past disputes, reassures us that attention to case facts, not legislative policy-making ideals, have guided the judge to her decision.

Summarized this way, readers can see that mastering Weinreb v. Brewer is not a prerequisite for competence as a public law political scientist. That said, at least three secondary benefits make this book a good read.

First, Weinreb, in passing, discusses some classically delicious legal cases and questions. A man sleeping in his berth on a steamboat has his wallet lifted from his coat pocket through an open porthole. Does the steamboat have insurer’s liability for the loss without evidence that the steamboat company itself acted negligently? At common law, innkeepers have such liability. But a precedent also holds that railroads are not strictly liable for losses to passengers sleeping in railway sleeping cars. What result? Or, a hotel pipes radio programs into each of its rooms for its guests’ enjoyment. Does the hotel owe royalties to the holders of the radio programming copyrights?

Second, those readers who follow the jurisprudential writings of luminaries like Posner and Sunstein will find here astute criticisms of some of their positions. Why, to take just one example, does Posner’s pragmatic, consequence-driven analysis attach no economic benefit to following the rule of law, no cost to ignoring it (pp.117-121)?

Third, it is somehow satisfying that Weinreb, born in 1936, follows a thoroughly postmodern approach to the subject and in doing so upends the suspiciously scholastic work of someone several decades his junior. (Brewer’s bio shows he graduated from college in 1979.) While he could have developed the concept more concisely, Weinreb understands clearly enough that the [*786] question is never whether the judge got the right answer but rather whether the judge persuades us of her impartiality. Brewer’s search for demonstrable correctness as the Holy Grail of judicial legitimacy just bogs him down in minute distinctions that judges do not in fact make. It is logically impossible to “demonstrate the ultimate moral ground of law” (p.39n), but that failure does not automatically make legal results the product of will rather than reason.

Thus in the case of the steamboat thief, it does not matter whether the judge follows the railroad analogy or the inn analogy. Either is sufficient to demonstrate that the judge has played the judicial role impartially and appropriately. (Cf. Carter and Burke 2005, ch. 2.) Weinreb implicitly argues throughout the book that we pay high costs when we abandon the rule of law, yet at the same time shows us how easy it is to reason well. Indeed, he reminds us that we do it all the time. Most of the time analogical reasoning, in law as in everyday life, is efficient and fertile. At the very least, reasoning by analogy beats ignorant random guessing or paralyzed inaction. In short, whether it is essentially correct or not, analogical reasoning—Weinreb uses the example of a woman who spills cranberry juice on a white tablecloth and, asking for help, is told “Try rubbing it with salt. Salt works on my red wine stains” (p.68ff)—meets the basic criteria for legal impartiality. Analogies take the result out of the realm of judicial will, opinion, and bias, and place it in the world of mutual experience and fact.

This book has its share of off-putting frustrations. The very first paragraph wrongly states the title of Levi’s classic, though it is correctly stated in other places. The index is unreliable. Readers who turn to the index, sensing that Quine lies at the heart of the book’s argument, will find no reference to Weinreb’s discussion of Quine on page 164. Also, this jurisprudential literature manages to ignore the importance of story telling as distinct from formal reasoning in all legal advocacy.

But, whether you read the book or not, if you have time to Google “Lloyd+Weinreb”+“Harvard+Law” you will meet a remarkable model of competence and clarity. Weinreb has known where to put the spotlight on matters of criminal law and procedure, copyright, theories of natural law, environmental law and, in this case, pragmatic legal reasoning. I suspect Weinreb’s wise rejection of the search for demonstrable correctness simply illustrates the wisdom of any experienced lawyer. Indeed, how scholasticism in any area of inquiry survives in the wake of Heisenberg, Kuhn, Quine, Fish, Rorty, and many other thinkers remains, and least for this reviewer, a complete mystery.

REFERENCES:
Brewer, Scott. 1996. “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy.” 109 HARVARD LAW REVIEW 923-1038.

Carter, Lief and Thomas Burke. 2005. REASON IN LAW. New York: Pearson Longman.

Levi, Edward. 1962. AN INTRODUCTION TO LEGAL REASONING. Chicago: University of Chicago Press. [*787]

THE RECORD http://www.hlrecord.org/media/paper609/news/2003/04/10/Etc/Ten-Professors.To.Take-413410.shtml

© Copyright 2005 by the author, Lief H. Carter.

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THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY

by Mark Tushnet (ed). Durham, NC: Duke University Press, 2005. 272pp. Paper. $22.95. ISBN: 0-8223-3468-2. Cloth. $79.95. ISBN 0-8223-3456-9.

Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania. Email: richard.glenn@millersville.edu .

pp.778-783

The difficult tension between the responsibility of a liberal democracy to protect individual freedoms and its concurrent responsibility to provide security to its citizens is most assuredly made more complicated by modern realities. But the fundamental question remains the same today as it was two centuries ago: Is there a reasonable (and constitutionally acceptable) way to balance the need for the United States to protect itself from threats to national security—not knowing when or where or how the next attack might occur—with the need to preserve individual freedoms? Unfortunately, loose statements about the need to balance liberty and security come close to exhausting the public discussion of this important question. THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY, edited by Mark Tushnet (Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center), remedies this deficiency by identifying and explaining the enormous complexities of constitutionalism during wartime. And it does so remarkably well.

THE CONSTITUTION IN WARTIME is a collection of balanced essays written by legal scholars and political scientists and from a variety of perspectives in law and political science. Targeted more toward the upper-level student or academic than the layperson, the essays seek to move the discussion of the Constitution and war beyond the two commonly voiced (and diametrically opposed) views—the alarmism of those who see in virtually every action taken by the administration of President George W. Bush a portent of gross restrictions of civil liberties, and the complacency of those who see virtually every action of the Bush administration as wise and reasonable accommodations of civil liberties to the new realities of national security.

THE CONSTITUTION IN WARTIME “presents initial reflections in what might be called this second generation of more temperate responses to the Bush administration’s declaring a war on terrorism.” This “second generation” of scholarship on the war and the Constitution differs from the initial set of responses to the positions advocated and policies adopted after the attacks of September 11, 2001, in a number of ways. For example, the “first generation” of scholarship was long on quips, short on analysis, and contributed little to the public’s understanding of the real constitutional issues raised during a time of war. (After all, our present dilemma cannot be resolved—and our debate is hardly advanced—by simply repeating Benjamin Franklin’s warning to his fellow colonists in 1759, “They that can give up essential liberty to [*779] obtain a little temporary safety deserve neither liberty nor safety.”) In the “second generation” of scholarship, civil libertarians remain leery of the president’s initiatives, but take seriously the possibility that prior tradeoffs between liberty and security should be reconsidered; and supporters of more security-oriented policies acknowledge the possibility that such policies may indeed pose serious threats to fundamental liberties. Additionally, the “second generation” of scholarship treats constitutional policy during wartime “as an example of constitutional policy generally, not as an exception to it.” The aim of this approach “is to deal with questions about constitutionalism during wartime in just the way one deals with questions about constitutionalism in other circumstances.” Finally, the “second generation” of scholarship is willing to consider the thesis, jarring though it may be, that war is an exception to constitutionalism.

The eleven essays are divided into four parts (alas, without titles), each with two or three essays. Part I introduces the general subject matter. Part II addresses the constitutional questions about war and civil liberties. Part III explores the allocation of power between the legislative and executive branches during wartime. And Part IV “expands the focus,” by looking specifically at the actions of the Bush Administration in the war on terrorism and the U.S. Supreme Court’s response to those actions. Most of the essays are broad in scope, examining history and drawing general conclusions about governance in wartime; only a few are specifically focused on the present conflict. To be certain, though, THE CONSTITUTION IN WARTIME does not seek a direct confrontation with the current policies of the Bush administration. This is one of the book’s strengths. It has no political axe to grind. It is also among its few shortcomings; the reader would benefit by hearing at least some from this impressive cast of contributors what they really think about specific contemporary practices. A complete list of essays and authors is provided at the conclusion of this review.

The three essays in Part I address critically the ancient Roman precept, inter arma silent legis—in a time of war the law is silent. Mark E. Brandon’s essay sets the stage. Because the United States was founded upon, and has often resorted to, military conflict (from the Revolution to the present, eighty-four separate significant engagements, listed chronologically in a useful chart), militarism has become a regular aspect of our nation’s life. Brandon demonstrates how these continual military engagements pose special dangers to the American constitutional order. While most of these dangers are familiar to those who study this topic—the “warrior state” is inconsistent with our self-image as peaceful people; rights give way to power during wartime; militarism leads to secrecy and alters institutional authority; and so on—the succinctness of the presentation enhances its understandability. In a second essay, Tushnet seeks to answer the question, “How should war be incorporated into American constitutionalism?” After mentioning the two standard responses to the question—(1) war is relevant to the application of constitutional standards (balancing approach); and (2) war triggers the application of a distinctive set of constitutional standards [*780] (categorical approach)—Tushnet makes a compelling case that American constitutionalists should consider a third option: War presents the possibility of justifying widespread suspension of legality. It may well be preferable, he asserts, to have emergency powers exercised in an “extra-constitutional” way “so that everyone understands that the actions are extraordinary, than to have the actions rationalized as consistent with the Constitution and thereby normalized.” The most difficult to comprehend of the essays—written by Eric Posner and Adrian Vermeule—analyzes the arguments of the alarmists and the complacents through the lens of public choice theory and behavioral law and economics, expressing some skepticism toward the claims of the alarmists.

The crux of the book comes in Parts II and III. In Part II, Mark A. Graber presents the “counter-stories,” showing how wartime conditions have produced policies protective of rights and liberties approximately as frequently as wartime conditions have resulted in policies restrictive of them. In other words, war does not exert a general, across-the-board pressure to restrict rights and liberties; instead, this essay shows how governmental policy during wartime is determined by a confluence of factors—mobilization needs, ideological justifications for the war, the identity of potential rights holders, and the predispositions of crucial rights actors. Clearly, knowledge of these counter-stories will improve the current debate. Also in Part II, Tushnet tackles the “elephant in the living room” in any discussion about the Constitution in wartime—the internment of Japanese-Americans during World War II and the U.S. Supreme Court’s approval of such a practice in KOREMATSU v. UNITED STATES (1944). Critics of President Bush’s current policies invariably invoke the specter of KOREMATSU. But Professor Tushnet reminds us that, while we have the luxury of reflection, policymakers must act before the event. Accordingly, unless we are confident that the constraints we put on policymakers “really do respond only to tendencies to exaggerate uncertain threats or to develop ineffective policy responses to real threats,” we should be reluctant to restrain policymakers because of our hindsight wisdom. From a policymaker’s perspective, it is a “damned if you don’t, damned if you do,” problem. President Bush is blamed for not recognizing the immediacy of the threat that came to fruition on September 11, 2001; he is similarly criticized for waging war on Iraq when the threat was perhaps not imminent. Tushnet’s essay is entitled “Defending KOREMATSU,” although I do not think it is a defense, at least not a strong one, of that decision. It is, however, a reminder that decision makers act with imperfect information and that if KOREMATSU is to be condemned to the constitutional junkyard, it certainly deserves a more proper burial.

The three essays in Part III are more specific, discussing the wartime roles of the legislative, executive, and judicial branches, and that of international law. William Michael Treanor explores the enduring struggle between the Congress and the president over the power to wage war. To his credit, he does not attempt to resolve the differences of opinion on this point, but focuses on an equally critical question—how to determine as a matter of law when Congress has signed [*781] off on military action. This essay also points out reasons why the president has historically been more militaristic than the Congress. A second essay, by Richard Pildes and Samuel Issacharoff, suggests an institutional process approach for courts to follow in assessing rights and liberties during wartime. By revisiting some of the more dramatic assertions of military prerogatives in American history, the authors demonstrate how judges have been reluctant to adopt both civil libertarianism and the executive unilateralism, instead shifting the responsibility for these difficult decisions to the joint action of the democratic branches of government. When the president acts pursuant to express or implied authorization of Congress, his authority is at its maximum (and courts are likely to acquiesce to executive authority). But when the president acts in the face of or without legislative authority, his power is at its lowest ebb (and courts are likely to invalidate executive action). Pildes and Issacharoff offer evidence that this institutional and process-based method is “the predominant American approach during wartime.” In a third essay, Peter J. Spiro tackles what is becoming an ever increasing influence on American constitutional law—international norms. (This influence can be seen clearly in two relatively recent decisions of the U.S. Supreme Court—LAWRENCE v. TEXAS (2003) and ROPER v. SIMMONS (2005), dealing with homosexual sodomy and capital punishment for juveniles, respectively.) Among other conclusions, Spiro illustrates how the international community appears to have restrained the United States government from a more serious assault on civil liberties. The essay indicates that rendition (“he who has the bodies calls the shots”), conditional cooperation (the United States needs allies in the war on terror to assist in intelligence gathering), and reputation (the United States needs to avoid criticism from other countries and transnational NGOs) are mechanisms for “bringing the hegemon to heel.”

David Luban’s contribution in Part IV is the most political of the essays. He asserts that the Bush Administration has selectively, dangerously, and in an unprincipled fashion combined elements of the war model and elements of the law model—the model of war being much freer than that of law—to maximize its ability to mobilize lethal force against terrorism while eliminating most of the traditional rights of a military adversary. It is far too easy, Luban rues, for the president to divest an individual of rights and liberties simply by announcing that the individual is an enemy combatant. (This essay was originally published in 2002, two years before the U.S. Supreme Court placed some restrictions on such executive prerogatives in RASUL v. BUSH and HAMDI v. RUMSFELD.) Luban has a distinct advantage in this discussion, however. The essay is critical of the response of the Bush Administration, but offers no recommendations as to a better way. Given that this war on terrorism differs dramatically from every other war in recorded history, it is unfair to criticize without offering suggestions. (Professor Luban may well have proposed a better way in other writings.) While generals are often criticized for preparing to fight the last war instead of the next one, scholars should be cautious about using the principles of the last war to criticize the current one, given modern [*782] realities. Perhaps for balance, an essay by Sotirios A. Barber and James E. Fleming follows Luban’s. This essay reminds the reader that the people’s safety in time of war may rationalize unconstitutional acts. Because “fidelity to the Constitution requires material conditions that the Constitution cannot guarantee,” sometimes one must violate the Constitution to restore the conditions for honoring constitutional forms and rights. (President Abraham Lincoln intuitively understood this when he suspended writs of habeas corpus in 1861.) After all, the Constitution is not a suicide pact. Unnecessarily, however, the authors announce that the decision of the Rehnquist Court in BUSH v. GORE (2000) was NOT an example of ignoring the constitutional rules to spare the country greater harm (in the spirit of Lincoln’s suspension of habeas corpus), but rather an example of sacrificing its own principles to political and social order. Finally, in an afterward, Tushnet provides a summary of the facts, issues, holdings, rationales, and separate opinions of three important Supreme Court decisions from 2004—RASUL v. BUSH, RUMSELD v. PADILLA, and HAMDI v. RUMSFELD.

I have often found collections of essays difficult to read (and awkward to review). Far too often, they are lengthy, repetitive, and disconnected. None of those claims can be made about THE CONSTITUTION IN WARTIME. Tushnet has assembled a highly regarded group of academics to produce a well-reasoned, well-written, and well-balanced piece of scholarship. The cogent and helpful introduction lays out clearly the purpose and direction of the book—a blessing to the reader (and to the reviewer). What follows is what is promised—honest and detailed yet accessible analyses of legal and constitutional issues of pressing concern today. This is a good read, a book from which the upper-level undergraduate, the teacher, and the informed citizen can benefit. And, no doubt, if more people would read it, our public debate on this topic would improve appreciably.

ESSAYS INCLUDED:
Mark E. Brandon (Professor of Law, Vanderbilt University Law School): “War and the American Constitutional Order”
Mark Tushnet (Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center): “Emergencies and the Idea of Constitutionalism”
Eric Posner (Kirkland and Ellis Professor of Law, University of Chicago) and Adrian Vermeule (Professor of Law, University of Chicago): “Accommodating Emergencies”
Mark A. Graber (Professor of Government and Adjunct Professor of Law, University of Maryand): “Counter-Stories: Maintaining and Expanding Civil Liberties in Wartime”
Mark Tushnet: “Defending KOREMATSU”
William Michael Treanor (Dean and Professor of Law, Fordham University School of Law): “The War Power Outside the Courts”
Samuel Issacharoff (Harold R. Medina Professor in Procedural Jurisprudence, Columbia University Law School) and Richard H. Pildes (An-Bryce Professor of Law, New York University School of Law): [*783] “Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime”
Peter J. Spiro (Professor and Associate Dean for Faculty Development, Hofstra University Law School): “Realizing Constitutional and International Norms in the Wake of September 11, 2001”
David Luban (Frederick J. Haas Professor of Law and Philosophy, Georgetown University Law Center): “The War on Terrorism and the End of Human Rights”
Sotirios A. Barber (Professor of Government, Notre Dame University) and James E. Fleming (Professor of Law, Fordham University School of Law): “War, Crisis, and the Constitution”
Mark Tushnet: “Afterward: The Supreme Court’s 2004 Decisions”

CASE REFERENCES:
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

KOREMATSU v. UNITED STATES, 3223 U.S. 214 (1944).

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

RASUL v. BUSH, 542 U.S. 455 (2004).

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

RUMSELD v. PADILLA, 542 U.S. 426 (2004).

© Copyright 2005 by the author, Richard A. Glenn.

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ELECTRONIC SIGNATURES: AUTHENTICATION TECHNOLOGY FROM A LEGAL PERSPECTIVE

by Maurice H.M. Schellekens. The Hague: T.M.C. Asser Press, 2004. 160pp. Hardcover. $55.00 / £34.00. ISBN: 90-6704-174-2.

Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia@loyno.edu .

pp.775-777

The author of ELECTRONIC SIGNATURES, Maurice Schellekens, is a senior researcher at Tilburg University’s Center for Law, Public Administration and Informatization, and this brief but quite thoughtful and well-researched volume is an excellent example of the implications of that process in one rather narrow area of law. In general, informatization is the process by which information technologies – most notably the worldwide web and other communication technologies – have transformed social, economic, political and legal relations, transcending national or regional cultural values and thus hastening related processes of globalization.

Consider one of the commonplaces in the lives of all adults – affixing one’s signature to a document. How many times in any given day do we do so? Checks, credit card receipts, forms connected with our work, acknowledgment of a UPS delivery – the list grows quickly. A shorter list, perhaps, would be the one that records the number of these occasions when we reflect on the legal consequences of that signature.

Schellekens discusses (pp.59-71) six functions that signatures perform, all of which, depending on the specific circumstances, may have legal ramifications: authentication (the signature earmarks a document as being authentic), identification (our laws are premised on the notion that persons are responsible for their acts on an individual basis, and individual responsibility presupposes that people are distinguishable from each other), authorisation (a signature is a statement that the person signing a document has authority to act with respect to the subject of the document), integrity (an indication that data in a document have not been altered, deleted or supplemented, with the signature offering some protection against a breach of integrity), originality (assuring that a document is not a copy), and cautionary (warning the signer that the signature has consequences, safeguarding signatories from an overly rash entry into legal acts).

These functions are well-established in our legal system, their origins traceable probably to the very beginning of written language. But to see the effects of informatization, consider a common legal concern with respect to signatures – the problem of forgery. A claims that B’s signature is on a contract, and that B is bound by its terms. B claims the signature is a forgery, and because few precautionary measures can be taken against forgery, and “measures that cannot be taken . . . need not be taken” (p.107), A must show that B somehow [*776] negligently contributed to the forgery – extremely unlikely.

But what if the contract was entered into over the internet by means of encryption and authentication technology designed to ensure that A and B are the signatories? If B then claims not to be the signatory, B bears a far greater burden, because, with respect to an electronic signature, precautionary measures against unauthorized use can be taken easily, and consequently – in the eyes of the law, at least – must be taken. “Failing to do so provides a strong argument for the imputation of a semblance of authorised use to the holder” (p.107).

A key element in this second example is the availability, workings, and usefulness of authentication technologies for such electronic transactions. Schellekens argues that legal professionals possess at best only “marginal” (p.3) knowledge of such technologies and their legal implications, and they have not seriously thought about how the functions and legalities of signatures are affected by the electronic form. Thus, after a brief introductory chapter, Schellekens describes the currently available authentication technologies. But his larger concern, which occupies the remaining chapters, is to discover what the usability of authentication technology entails for its users. He approaches usability from a legal perspective, which entails a specific definition of usability – “the users of the technology are able to correctly foresee the legal consequences that the use of the technology entails. The users are both the signatories and the persons relying on a signature” (p.3). More specifically, his larger concern is “the legal certainty with which signatures can be used” (p.4). The legal questions that Schellekens examines are illustrated exclusively with Dutch law examples, and to a lesser extent directives of the European Commission—but this is not necessarily a drawback. The larger issues Schellekens discusses are common to all electronic transactions throughout the industrialized world. And, despite his use of the arguably oxymoronic “legal certainty,” Schellekens is sensitive to the fact that general principles must be supplemented and adapted based upon the facts of specific cases.

His chapter (Three) entitled “Usability of Authentication Technology” is by far the most readable and interesting in the book, with an especially incisive discussion of the functions of signatures. By contrast, the preceding chapter, “Authentication Technology: An Elementary Explanation,” is daunting and frustrating, featuring a proliferation of acronyms probably familiar to computer experts, but perhaps alien to many LPBR readers. The chapter is necessary, however, to his examination in Chapter Three of the usability of each of these technologies, both for lawyers representing clients and for courts required to resolve disputes between electronic signatories.

This reviewer would suggest that the discussion of functions of signatures should have been placed in a separate chapter, before addressing authentication technologies. Having already encountered a serious discussion of the legal ramifications of ordinary signatures, one would be prepared to read about electronic signatures and authentication technologies with those [*777] functions in mind. Schellekens could then have made those implications quite clear, as he does ultimately, discussing each of the technologies, its strengths and drawbacks, from the point of view of the legal system.

Schellekens provides a work that is written in solid, straightforward, though occasionally inelegant, prose (this reviewer presumes that English is his second language). For example, one encounters the following: “One relativation with regard to positive law must be made” (p.92). My dictionary does not provide any listing for “relativation” (for that matter, neither does it list “informatization”). In context it eventually becomes clear that Schellekens meant “qualification.” Similarly, in writing “[t]he first two arguments must however be strictly made relative” (p.106), Schellekens probably meant “seriously qualified.” More rigorous editing by the publisher could have eliminated such difficulties.

ELECTRONIC SIGNATURES is a slim volume, but not one that can be taken up lightly. It is solidly researched and maintains a healthy balance between larger principles and specific applications. It provides an excellent survey of the legal issues associated with existing authentication technologies, and should be of use primarily to attorneys who encounter such issues in their work, to judges who must ultimately resolve problems in specific cases, and to legislators who seek to craft laws that anticipate and address many of the issues Schellekens surveys, while also leaving flexibility to adapt to circumstances that inevitably will change rapidly and in ways that are probably quite unforeseeable – one of the hallmarks of informatization.

© Copyright 2005 by the author, Philip A. Dynia.

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WOMEN’S LIVES, MEN’S LAWS

by Catharine A. MacKinnon. Cambridge: Harvard University Press, 2005. 576pp. Hardcover. $39.95 / £25.95 / €36.90. ISBN: 0-674-01540-1.

Reviewed by Rose Corrigan, Department of Government, John Jay College of Criminal Justice. Email: rcorrigan@jjay.cuny.edu .

pp.770-774

Catharine MacKinnon is a famously polarizing figure; her groundbreaking work in feminist legal theory has ardent admirers and fanatical opponents, with much of the substance of her analysis and method obscured by political and intellectual fallout over her controversial work on pornography. Though this collection includes several succinct essays on pornography, I want to turn attention to the analysis and method that are at the heart of her attempt to re-make equality law.

WOMEN’S LIVES, MEN’S LAWS brings together more than two decades of MacKinnon’s thinking. Many of the speeches, articles, and essays have appeared in print elsewhere; a handful are published here for the first time. Though the collection necessarily lacks the coherence and sustained intellectual force of TOWARD A FEMINIST THEORY OF THE STATE (1991), its scope makes it an absorbing overview of MacKinnon’s views on women’s inequality. She defines sexual inequality as “a hierarchy that is substantially sexual at base and merges especially crucially with inequalities of race and class” (p.2), and argues that law—in its current state—is not an effective tool to create conditions of substantive equality. Law is especially incompetent at recognizing and addressing the legal needs of women in areas formerly regarded as “private” (sexuality, reproduction, family, violence); regulation in these areas typically have protected men’s, not women’s, interests and rights. Previous efforts to remedy inequality failed because reformers tried to fit women’s injuries into a constitutional framework that never intended to provide equality for all. Mainstream efforts to expand equality to address women’s needs were thus doomed on two counts: first, the concept of equality as developed in the U.S. provides equality only when groups are similar; and second, because law—in its methods, procedures, and concepts—protects those in power. MacKinnon proposes a radical new vision of formulating legal principles that will, she says, result in real change for women.

MacKinnon’s method turns the accepted form of legal reasoning on its head. Rather than deciding whether a named injury fits within a recognizable category, she openly advocates an outcome-based, instrumental use of law to remedy what are clearly harmful conditions whether or not they are actionable injuries in the legal sense. Protecting individuals and groups, she argues, should be prioritized over procedural niceties. “Anyone who has ever practiced law knows that the real issues of a case—its gut, how it plays on the street—are one thing; the legal issues, into which these real issues must somehow be shoehorned, are commonly [*771] another. Rarely do the two coincide; often they do not even overlap. Legal theory, in my opinion, should analyze the legal issues in terms of the real issues, and strive to move law so that the real issues are the legal issues” (p.6). A process that sees injuries to women but deems them outside the scope of legal remedies, or rejects the remedy as conflicting with prior rights—as the Seventh Circuit did in the HUDNUT case, striking down MacKinnon’s anti-pornography ordinance even as it recognized some of the harms the ordinance tried to prevent—is incompatible with justice. In her view, a legal system focused on abstract rules and principles, such as fidelity to the Constitution, norms of stare decisis, conventions of judicial reasoning, or constraints on interpretation, necessarily protect the privileged and powerful.

The first step in the articulation of new, truly meaningful equality principles is the rejection of equality law as it has been developed. Like other legal scholars, MacKinnon argues that our legal model is cramped by an inability to think about the requirements of equality in the presence of “difference” (Minow 1990). Simply expanding equality, therefore, is insufficient; MacKinnon says that we must abandon the idea of trying to conceptualize women’s injuries to fit equality doctrine. The exclusion of women from making law renders it not just ignorant of women’s injuries, but currently incapable of redressing these grievances. “The law that is applied to . . . women was not written by women, white or Black, rich or poor. . . . [N]o women had voice or representation in constituting this state or its laws, yet we are presumed to consent to its rule. It was not written for our benefit, and it shows” (p.33). The intellectual and legal tools necessary to improve the material conditions of women’s lives are simply not available under current statutory and doctrinal interpretation.

Once the failures of existing equality law are conclusively documented, MacKinnon offers a base from which to reconstruct viable and just principles. The actual principles themselves remain unclear, but the process for identifying them is examined in some detail. These come from two forms of practice: the practice of law, and the practice of women’s lives. Like Elizabeth Schneider (2000), MacKinnon offers a vision of the capacities and failures of law that arises out of legal advocacy for women.

MacKinnon begins her search for equality in what she calls the practice of women’s lives—the unique forms of inequality that limit women’s lives: restrictions on reproductive freedom, commodification and exploitation of women’s sexuality, historical experiences of race- and class-based discrimination. MacKinnon derides the use of neutral principles and disembodied selves to articulate the requirements of equality, dismissing these as fictions that refuse to see that “some people—sometimes you, your colleagues, your friends—[are] systematically treated worse than others” (p.66). Identifying and eliminating systematic forms of discrimination should be the purpose of equality law. The role of law is not to protect principles, but to make people’s lives better.

Instead of starting from established legal principles, then, MacKinnon wants to start with substance. What substantive [*772] decisions would advance sexual equality? How does looking at the injuries women suffer as women lead us to then articulate principles that would eradicate those injustices? That this would entail what is usually vilified as substantive due process bothers MacKinnon not at all. In discussing LOCHNER and its progeny, MacKinnon says that “[c]ommon wisdom holds that, if substance is allowed to drive outcomes . . . the wrong substance may win; so the lesson learned was to preclude substantive decisionmaking and avoid substance at all costs. Missed is that the legislation was not invalidated in the name of its substance, unbridled capitalism, but in the name of a legal abstraction, freedom of contract. . . . What was wrong with these cases . . . was not their substantivity but their substance. What was problematic was not that substantive decisions were made. Ineluctably, they are. What was wrong was that abstractions obscured both the substance of the decisions and the fact that the decisions were substantive” (p.8).

In MacKinnon’s view, substance is exactly what groups should be fighting over. The reduction of substantive disagreements to abstract legal principles does nothing to clarify or contest the values that determine legal outcomes, and indeed, as the quotation above points out, merely hides the values privileged by law. But why this contest is properly pursued through the judicial rather than the legislative process is left unaddressed, a troubling prospect for observers who note that elected representatives are already quite eager to leave tough conflicts to the judiciary. MacKinnon’s approach seems to validate this trend. Although she clearly does not reduce all law to that announced in courtrooms, the heavy focus in both her lawyering and theoretical work on changing judicial interpretations of law, rather than changing law itself, indicates that the legislative process is not her main target. If MacKinnon wants communities to engage in real discussion over the meaning and requirements of equality, the courtroom seems to be perhaps the worst, most constrained, least accessible venue for these conversations. Indeed, the legislative success contrasted with the legal failure of the MacKinnon/Dworkin anti-pornography ordinance in Indianapolis would seem to point MacKinnon to leave courts out of a re-interpretation of sexual equality as much as possible. A more sustained assessment of how the logic, forms, and requirements of law varies in these different political contexts, and offer different possibilities and limitations for women would strengthen and enrich the argument over how communities should determine what substantive goals should be protected by law.

There are other, important questions raised but ultimately left unanswered by the essays. As MacKinnon herself points out, “women’s everyday life has real rules, but they are not the formal ones. They have never been legislated or adjudicated. They have not had to be. . . . These rules go under the heading of socialization, pressure, religion, popular culture, masculinity and femininity” (p.34). MacKinnon does not adequately explain why law is the best way to ameliorate these informal rules that continue to cramp and thwart women’s lives. Her argument is that “while legal change may not always make social change, sometimes it helps, and law [*773] unchanged can make social change impossible” (p.103). But this recognition that law is important does not necessarily help explain or understand what legal avenues help women most, or least, or for what reasons. If one accepts MacKinnon’s premise that the legal system privileges and protects male interests she needs to explain more fully how to avoid the potentially perverse consequences of implementing women’s equality through a still largely masculine legal system.

MacKinnon points to her work on sexual harassment as evidence that legal theory derived from the experiences of women can produce significant change. “When women’s experience was made the basis for the law against sexual harassment, everyday life altered as well. . . . Most important, women’s own sense of violation changed because the harm had legal expression and legitimacy and public sanction. . . . Changing what could be done by law changed the way it felt to live through it in life, and the status of women took a step from victim to citizen” (p.40). Yet she does not offer a single citation or footnote to support this claim; there is no empirical evidence that sexual harassment law has done what MacKinnon claims that it has, nor does she grapple with critical literature on anti-discrimination law (such as the work of Kristin Bumiller (1988)) that could raise questions about whether even laws written by women can address victimization in positive ways. Her assertions of meaningful change, I think, fail to produce sufficient evidence to persuade skeptics.

The inevitable repetition and elisions in a collection of this sort should not detract or distract from the importance of its overarching themes. Her perspective obviously recognizes and builds on the insights of the legal realism and critical legal studies schools, but MacKinnon makes the extraordinarily bold move to develop a positive theory and practice of sex equality under the law. In this I think that she joins only a handful of contemporary theorists whose work goes beyond critique and offers a genuinely new way of talking and thinking about significant problems.

I see the purpose and value of this book in doing just that—forcing readers to think deeply and seriously about why law fails to protect groups, especially women. Despite my own questions about her work, I see MacKinnon’s purpose and contribution not as crafting well-documented, adequately footnoted, empirically sound arguments of the typical scholarly variety; it is instead to ask fundamental questions about our very notions of law and justice. Whether one agrees with her or not, MacKinnon is extraordinary in her willingness to tackle big, provocative questions about the nature of law, the requirements of justice, and the limitations of legal discourse. Her answers are not always persuasive; some, no doubt, will find them deeply objectionable. It is rare for a collection of this type to offer genuinely new intellectual insights, but WOMEN’S LIVES, MEN’S LAWS does just that. It is a significant addition to legal scholarship about equality and an important amplification of MacKinnon’s vision for women’s rights.

REFERENCES:
Bumiller, Kristin. 1988. THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS. [*774] Baltimore: The Johns Hopkins University Press.

MacKinnon, Catharine. 1991. TOWARD A FEMINIST THEORY OF THE STATE. Cambridge: Harvard University Press.

Minow, Martha. 1990. MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION AND AMERICAN LAW. Ithaca: Cornell University Press.

Schneider, Elizabeth. 2000. BATTERED WOMEN AND FEMINIST LAWMAKING. New Haven: Yale University Press.

CASE REFERENCES:
AMERICAN BOOKSELLERS ASSOCIATION v. HUDNUT, 771 F.2d 323 (7th Cir. 1985).

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

© Copyright 2005 by the author, Rose Corrigan.

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UNWLLING MOTHERS, UNWANTED BABIES: INFANTICIDE IN CANADA

by Kirsten Johnson Kramar. Vancouver and Toronto: University of British Columba Press, 2005. 238pp. Hardcover. $85.00. ISBN: 0-77-48-1176-5.

Reviewed by Greg Marquis, Department of History and Political Science, University of New Brunswick, Saint John, New Brunswick, Canada, gmarquis@unbsj.ca .

pp.766-769

This study is a book version of sociologist Kirsten Johnson Kramar’s 2000 PhD dissertation, which examines legal discourse surrounding the crime of infanticide in 20th-century Canada. Canada followed the British legal approach to dealing with maternal neonaticide (birth mother’s causing the wrongful death of infants), as opposed to that of the United States, where infanticide is not a separate charge but a legal defence in murder and manslaughter prosecutions. The charge of infanticide, modelled on the English Infanticide Act of 1922, was added to the Canadian Criminal Code in 1948. Until that year, Canadian Crown attorneys and police had a number of charge options in the case of neonaticide: murder, manslaughter, concealment and neglect to obtain assistance in childbirth. The current punishment for infanticide, which is an indictable offence, is a prison term not exceeding five years (Canadian Children’s Rights Council, 2005).

Kramar utilizes a feminist, interdisciplinary approach, informed by her reaction to the recent tendency to target adolescent women with child abuse charges, a development she associates with the “new quasi legal status” of the baby, which supposedly is linked with “the anti-abortion movement’s attempt to assert foetal rights claims in law”(p.14). She also argues that late 20th century feminist historiography, with a focus on textual analysis of the medicalization of women’s deviance, is ahistorical. Prominent in this approach is the early work of Carol Smart, who depicted infanticide prosecutions as repressive regulation of sexuality and reproduction by the state. As infanticide became ‘medicalized’ by the late nineteenth century, Smart argued, women’s deviance was explained in terms of biology and psychology, not patriarchy. In contrast, Kramar concludes that Canada’s infanticide law was “a pragmatic, even artful, solution to the problem of securing convictions faced by the prosecuting authorities” (pp.4-5). Far from being victims of a patriarchal justice system, accused women were understood according to their “unique experiences of pregnancy, childbirth and lactation” (p.5). The author also questions the “Anglo Foucauldian” critique of infanticide with its emphasis on law as a way of disciplining ‘bad’ mothers and deviant single women. As Kramar explains, one reason that juries were so sympathetic to young single women who abandoned, concealed or killed their newborn babies was that the women were motivated by propriety—the need to avoid the shame of giving birth to an illegitimate child. Many of the women charged were married or widowed. She writes: “In Canada the killing of these babies was sometimes [*767] openly backed by the women’s lovers, families and friends, who wanted to avoid stigma for themselves and the babies” (p.7).

Despite the title, the bulk of the primary evidence is drawn from Canada’s largest province, Ontario. In addition to a number of reported cases, the Ontario evidence consists of nine verdicts of coroner’s juries from 1980-98, twelve coroner’s investigation case files from 1986 to 1998, and fifty six cases drawn from criminal prosecution records in the Archives of Ontario. Ontario was one of the last provinces to retain grand juries, which were abolished in the late 1960s. Grand juries of lay persons from the community, as the author explains, were important in mitigating charges of murder into lesser offences, such as indictments for concealment of birth. Petit or trial juries did the same thing, a situation that eventually prompted the change of 1948. Prior to the medicalization of childbirth, when many babies were not born in hospitals, it was easier for women to assert innocence when babies “died at home following a concealed pregnancy” (p.97).

As in other jurisdictions, infanticide was considered a “social” crime that was difficult to detect, under-prosecuted and met with considerable ambivalence from the community, politicians, the press, and legal officials. First, there had to be legal proof of live birth, and of wilful intent. Second, conviction on a murder charge meant an automatic death sentence (although the federal cabinet tended to commute death sentences for women). Juries in the late Victorian and Progressive eras reflected a chivalrous attitude that viewed “wronged” women, particularly if young and working-class, as victims of male seducers and an unjust economic system. On the other hand, English research suggests that “good character” was a key determinant in trial outcomes, as in the case of female victims of sexual assault. A minority of women convicted of murder were those who confessed to the police.

Perhaps a deliberate choice of prosecutors, the result of jury sympathies, or the result of plea bargains, the concealment charge became the main Canadian instrument for regulating infanticide. In the period, 1912 to 1919, for example, there were 86 concealment charges nationally, resulting in 60 convictions. Between 1920 and 1948, when the new law was introduced, more than 350 concealment charges were laid (fourteen against men), with a conviction rate of 85%.

The early twentieth-century medical understanding of neonaticide, as revealed in the English parliamentary debate of 1922, combined awareness of the patient’s poverty as well as the biological/psychological pressures on recently pregnant and now lactating mothers. According to Kramar, the incorporation of infanticide into the Canadian Criminal Code was not accompanied by much discussion or understanding of the medical and psychological aspects of the issue. It was a crime control response: infanticide was an attempt to avoid the emphasis on auxiliary charges. Because the Crown (the prosecution) faced two evidentiary burdens, intent and reproductive mental disturbance, the law was amended in 1955. The chapter that discusses infanticide case law notes that after 1955 decisions focused on the questions of live birth and willful intent. Reported [*768] cases that dealt with sentencing indicate a trend towards stronger sanctions in cases of violent death. This was most evident by the 1980s when many prosecutors were abandoning infanticide charges for second-degree murder.

Kramar is alarmed at the rise of political interest in the rights of the infant, alive or dead, at the expense of the mother. She cites the federal government’s interest in replacing the offence of infanticide with “death by child abuse/neglect” and in legislating longer prison terms for abandonment. In an era of “gender neutrality” and individual accountability, prosecutors and judges are less likely to accept psychiatric evidence and to account for women’s social economic vulnerability. According to Kramar, neonaticide by mothers is different from child abuse murder, which tends to follow “prolonged physical abuse” (p.100) and should not be punished as harshly. She dismisses a judge’s comments in the case of a twenty-one year old woman who killed her concealed newborn with scissors as “ahistorical,” “moralistic” and “puritanical,” and representative of “right-to- life rhetoric” (p.128).

Kramar’s suggestion that political and legal pressures on the traditional charge of infanticide are simply the result of a conservative agenda within the justice and child welfare system is more asserted than proven. The issue is historically complex; infanticide was the creation of a conservative, patriarchal legal-political system reacting to social forces. The anti child abuse movement, as explained in the American case by Nelson (1984), was the result of a rediscovery of social problem. The “battered child syndrome” emerged from professional concerns of pediatricians, radiologists and social workers in the 1960s, and from politicians who supported a safe “motherhood” issue. Political interest in enacting legislation that required reporting suspected abuse was fuelled by high-profile cases detailed in popular magazines and influential newspapers. In both the United States and Canada, the children’s rights movement owes more to social workers and academics than anti-abortionists and evangelical Christians (the latter often object to state intervention in family life). Like the anti-smoking movement, the protection of children has become central to middle class norms. Infanticide, a fitting legal category for the Victorian or Progressive era, does seem out of place in an age when parents can be arrested for spanking a child. Other things have changed since the late 1800s and early 1900s: birth control is legal and available in Canada, abortion is somewhat available, and there is less stigma surrounding “illegitimate” children and single parenthood. In this context, lawmakers, courts, and the media are inclined to be less charitable towards women who abandon or kill their babies. And it is difficult to view the anti child abuse movement as simply a modern way to repress women. Shaken baby syndrome, whose victims tend to be less than six months old, has concerned such mainstream organizations as Health Canada (the federal health agency), the Canadian Association of Chiefs of Police, the Canadian Pediatric Society and the Canadian Bar Association. Media reports of child abuse tend to blame fathers or male partners as much as mothers, and with regard to murder of children and youth during the period, [*769] 1974 to 1999, the number of mothers and stepmothers who killed (400) nearly equalled the number of fathers and stepfathers (460) (Canadian Broadcasting Corporation 2005). Many of the front-line workers in child welfare, education and medicine, who are most likely to report child abuse, are women who would not see themselves as “anti women.”

REFERENCES:
Canadian Broadcasting Corporation. 2005. “Indepth: Missing Children,” CBC News website, http://www.cbc.ca/news/background/missingchildren/childmurders.html (date visited: 29/07/2005).

Canadian Children’s Rights Council. 2005. “Killing children/infanticide.” Canadian Children’s Rights Council website, http://www.canadiancrc.com/killing_children.htm (date visited: 29/07/2005).

Nelson, Barbara J. 1984. MAKING AN ISSUE OUT OF CHILD ABUSE: POLITICAL AGENDA SETTING FOR SOCIAL PROBLEMS. Chicago: University of Chicago Press.

© Copyright 2005 by the author, Greg Marquis.

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DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS

by Christian Joerges and Navraj Singh Ghaleigh (eds). Oxford: Hart Publishing, 2003. 440pp. Hardback. ₤58.00/$110.00. ISBN: 1-84113-310-8.

Reviewed by Shannon Smithey, Department of Political Science & Sociology, Westminister College. Email: smithesi@westminster.edu .

pp.764-765

High expectations can be a curse. When I read the title of this book, I hoped (and expected) that it would contribute a great deal to my own research about courts in regimes transitioning from authoritarianism to democracy. I expected (and wanted) it to be about the efforts of post-WW2 elites to establish legal institutions and rules in order to avoid repeating the mistakes of the fascist period, or perhaps to cover the difficulties that modern democratic regimes face in trying to overcome the “dark legacies” of their past. I was disappointed to find that the book does none of these things.

The book is an edited volume, with most of the chapters having been presented at a conference on “Perceptions of Europe and Perspectives on a European Order in Legal Scholarship During the Era of Fascism and National Socialism,” or as part of a seminar at the European University Institute. As with many edited volumes, some of the chapters respond to one another fairly directly, while others seem only tangentially related to a common theme. The majority of the articles focus on Germany and various aspects of National Socialism, with additional pieces on fascism in Austria, Italy, France and Spain.

The book is primarily an exercise in political theory and the history of ideas. Readers will likely encounter new details on fascist politics, and find some topics more absorbing than others, based on personal taste and interest. Those interested in the ideas of Carl Schmitt will find much to read as multiple chapters (by Navraj Ghaleigh, Ingo Hueck, John McCormick, Peter Burgess, and Christian Joerges) discuss the nuances and implications of Schmitt’s views. Since Schmitt is not one of my particular interests, I felt like I was entering mid-debate without a good feel for the arguments or the stakes of the various disagreements. I expect those most intrigued by Schmitt and fascism to react differently.

Similarly there are two chapters on Constantin Mortati (a prominent judge and legal commentator in Mussolini’s Italy), which should appeal most directly to those who already have a stake in any ongoing debate about Italian fascism. There are also a couple of chapters comparing similarities and differences between German and Italian fascism, which might be of use to someone teaching political history or ideologies. Of more personal interest to me was Oliver Lepsius’ chapter on the participation of German lawyers in undermining the rule of law and dismantling the Weimar constitution. [*765]

Other chapters should have wider appeal to non-specialists. The best of these, in my opinion, is Vivian Curran’s chapter “Formalism and Anti-formalism in French and German Judicial Methodology.” Fascist judges’ tendency to apply positive law formalistically, despite manifest injustices, has left judicial positivism with a negative reputation. But, Curran argues, legal formalism was not to blame for the actions of fascist judges in Germany and France. Curran documents differences in French and German judicial “methodology,” and contends that, “we will not be able to identify the responsible culprit for fascist-era injustice in France or Germany in the methodological distinctions that separate positivism from anti-positivism, or formalism from anti-formalism. The driving force behind court decisions in both Germany and France was political ideology” (p.225). She blames the lack of pluralism, the “unicity” of fascist societies, instead of the methods of judicial interpretation employed. Curran then goes on to argue that “the European Union should develop from this history a resolve to prevent its constituents from merging into oneness, even at a sacrifice of some efficiency” (p.226). I enjoyed the way this argument draws attention to the limits of institutional design—we can carefully craft statutes and constitutional provisions, but their efficacy depends on their application by judges and other policy makers.

I particularly appreciate Curran’s ability to find relevance for current politics and institutional design in contrast to the rest of the book. As a whole, the book concentrates on discussing the nuances of an isolated though important historical period. There are occasional references to modern concerns. For example, Navraj Ghaleigh compares government claims for emergency powers in the wake of September 11th to Schmitt’s justification of constitutional dictatorship. Neil Walker considers whether there is any hint of Nazi grossraum in the current move to “European supranationalism.” And, Alexander Somek discusses the ways in which authoritarian constitutional law in Austria “exclude[d] the election of, and control by, popular assemblies,” creating faint echoes of some of the arguments about democratic deficits facing EU institutions (p.362). These contemporary references, though, tend not to be the central concern of their authors.

Personally, I find the historical focus frustrating. I would have liked the book to be more forward looking in its discussion of these issues. I do not think it would have taken more than a few additional paragraphs per essay to make current implications explicit. So, while I feel a bit awkward for complaining that they wrote the book they wanted to write it, instead of the one I wanted to read, I also expect other readers most interested in modern judicial or European politics to have similar complaints.

© Copyright 2005 by the author, Shannon Smithey.

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THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB

by Karen J. Greenberg and Joshua L. Dratel (eds). New York: Cambridge University Press, 2005. 1284pp. Cloth. £27.50/$50.00. ISBN: 0-521-85324-9.

Reviewed by Paul E. Parker, Social Science Division, Truman State University. Email parker@truman.edu .

pp.758-763

In April of 2004, photographs of abuse made Abu Ghraib a household name. The military pursued the individuals in the photographs, and now Charles Graner is serving 10 years in prison, while Lynndie England is facing a court martial and up to 11 years in prison. Against this narrative of “a few bad apples” stands the counter narrative of “official policy.” But unfortunately for Graner and England, there were no orders they were following, no clear orders they could have disobeyed. And just as unfortunately (for them), digital cameras are ubiquitous. The photographs exposed to the world the abuse that had occurred at Abu Ghraib. At the same time, the subjects in the photographs helped to limit our perception of responsibility. The volume under review here asks us to cast our gaze more broadly.

By collecting 28 memos, five reports, two bar association statements, and five appendices into one volume, the editors of THE TORTURE PAPERS have provided a valuable service. Chronologically arranged, one can trace the development of U.S. legal policy from September 25, 2001, through March 19, 2004 – a year after the U.S. invasion of Iraq, and shortly before the Abu Ghraib photographs were seen worldwide. As co-editor Joshua Dratel writes, the memos collected were “the product of three pernicious purposes . . . : (1) the desire to place detainees beyond the reach of any court or law; (2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and (3) the desire to absolve those implementing the policies of any liability for war crimes under U.S. and international law” (p.xxi).

The road to Abu Ghraib began before we attacked Afghanistan in 2001; Deputy Assistant Attorney General John Yoo’s September 25th memo of that year argues that the president “has broad constitutional power to take military action in response to the terrorist attacks” of 9/11, not only in retaliation but also to act preemptively against terrorist organizations or states, “whether or not they can be linked to the specific terrorist incidents of September 11.” The case for broad unilateral power, exercised by an unchecked executive, animates these memos (and ongoing policy discussions).

Pernicious Purpose 1, placing the detainees “beyond the reach of any court or law,” can be understood in both physical (jurisdictional) and conceptual (cause of action) terms. Physically, this goal is most clearly addressed in memo #3, which argues that the “great weight of legal authority” suggests that federal courts would not have habeas corpus jurisdiction over aliens held at [*759] Guantanamo Bay. Prepared by the Department of Justice’s Office of Legal Counsel at the request of the Department of Defense, the memo foreshadows the losing arguments made by the government in RASUL v. BUSH (2004). When approached conceptually, this purpose bridges over into Purpose 2.

Detainees can be placed beyond the reach of law if no law applies to them. Pernicious Purpose 2, placing al Qaeda and the Taliban outside of the Geneva Convention, was accomplished through a series of memos that created new categories of “unlawful combatants.” The Military Order issued by George Bush on November 13, 2001 (memo #2) laid the groundwork, but the memoranda continue into February of 2002. From the Attorney General’s Office of Legal Counsel, John Yoo (memo #4) and Jay Bybee (memo #6) argued in January of 2002 that U.S. treaties and laws, including part of the Geneva Convention, do not apply to Al Qaeda and the Taliban. This determination is forwarded by Secretary of Defense Donald Rumsfeld to the Joint Chiefs that same month (memo #5). In February Attorney General John Ashcroft (memo #9) and Assistant Attorney General Bybee (memo #12) further develop positions on excluding al Qaeda and the Taliban from the Geneva Convention.

This does not mean that the government marched lockstep on this policy. The State Department voiced concerns grounded in international law and custom about the U.S. treatment of detainees: In memo #10, State Department lawyer William H. Taft, IV argued pragmatically that not abiding by the Geneva Convention in Afghanistan “deprives our troops there of any claim to protection of the Convention . . . and weakens the protection accorded by the Convention to our troops in future conflicts” (p.129). And in memo #8, Secretary of State Colin Powell responded similarly to White House Counsel Alberto Gonzales’ January 25, 2002 memo (#7) that advised the president of “the ramifications” of deciding that the Geneva Conventions on treatment of Prisoners of War does not apply to al Qaeda and the Taliban. On February 7, 2002, President Bush sided with the DoD and the AG and signed a directive regarding the Humane Treatment of al Qaeda and Taliban Detainees (memo #11, discussed more fully below).

Most of the remaining 15 memos address interrogation methods and constraints, and it is in these memos that we find the link between Pernicious Purpose 2, abrogation of the Geneva Convention, and Pernicious Purpose 3, insulation from criminal liability– the road map to Abu Ghraib. Central among these is memo #14, Assistant Attorney General Jay Bybee’s August 1, 2002, memo to Presidential Counsel Alberto Gonzales on the “standards of conduct for Interrogation under 18 U.S.C. §§ 2340-2340A.” This is the so-called torture memo, in which the Office of Legal Counsel defines torture – forbidden under 18 U.S.C. §§ 2340-2340A – very narrowly. The narrow definition is achieved both by distinguishing torture from “cruel, inhuman, and degrading treatment,” and by establishing a high threshold to be accountable for committing torture: because (based on earlier definitions) one has to have acted “with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s [*760] precise objective” (p.174). The memo helpfully distinguishes “severe pain and suffering” from merely pain or suffering – and also defines “severe mental pain and suffering.” In the absence of statutory definitions, the memo cites authorities such as a 1935 dictionary entry and congressional acts related to disability, before concluding that “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. . . . In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts” (p.183).

The “torture memo” is aptly named. Not only does the memo define torture narrowly, but in by reviewing specific practices that other tribunals have said fall on the safe side of the “inhuman treatment versus torture” line, the memo appears to green-light specific interrogation techniques. But should the legal analysis wrongly predict what a court might determine, the memo offers the transgressor the defenses of self defense and necessity. Finally – and thematically important for the constitutional vision found in these memos – there is the executive trump card: “Even if an interrogation method arguably were to violate section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign” (p.200).

A letter from the Office of Legal Counsel’s Yoo to Presidential Counsel Gonzales dated that same August 1, 2002, indicates that the torture memo was written in response to a request by Gonzales, and this memo stands as a key piece of evidence that the U.S. was seeking to interpret national law and international law and custom as not constraining the behavior of interrogators. Two caveats to this broad power apply. First, President Bush’s February 7, 2002, directive (#11), while accepting administration legal opinions that the Geneva Conventions do not apply to al Qaeda, nor for the most part to the Taliban (and accepting that he has the power to suspend those that are acknowledged to apply), concludes that the Armed Forces are to treat detainees “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The significance of this language should be clear to all who have heard about “all deliberate speed.” Second, a series of memos (16-23) document the Department of Defense’s concern with the Geneva Conventions and also with the Uniform Code of Military Justice. This includes memos in which Secretary of Defense Donald Rumsfeld first authorized (12/02/02) and then rescinded (1/15/03) 16 techniques for Guantanamo Bay interrogators that went beyond the 17 techniques approved in the Army Field Manual.

But there are caveats to these caveats which bring us back to the expansive view of executive power, and back to the narrative of “official policy.” As law professor (and former Office of Legal Counsel attorney) Marty Lederman has discussed at length (2005a), read together, the combination of the [*761] President’s February 7 memo and the August 1 torture memo suggest precisely Pernicious Purpose #3: If we really were concerned about universally humane treatment, there would be no need for a memo that both defines torture very narrowly and distinguishes torture from cruel and inhuman treatment. Further, in addition to the February 7, 2002, presidential memo directing humane treatment “to the extent appropriate and consistent with military necessity,” it is silent as regards the CIA. As Lederman argues, the CIA would be subject to the statutory prohibitions on torture, which is why the August 1 memo is needed. And if you think that it is unfair to conclude from these two memos’ statements and silences that the CIA is implicitly authorized to engage in very far reaching coercive interrogation techniques, you need a lesson in parsing from Yoo or Bybee. I recommend the August 2, 2002, Torture Memo itself.

The bulk of these memos were written prior to Operation Iraqi Freedom; thus they applied to our conduct in Afghanistan and to interrogation of people detained at Guantanamo Bay (and presumably other secret interrogation sites). The final piece of the puzzle is how we got to the point where “between October and December 2003, at the Abu Ghraib confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees.” (Taguba Report, p.416; see also, sworn statements, pp.471-586). The Taguba Report does offer some suggestion of how measures initially discussed and approved regarding Afghanistan, al Qaeda, and the Taliban ended up in Baghdad (where the Geneva Conventions are presumed to operate): “The recommendation of MG Miller’s team that the ‘guard force’ be actively engaged in setting the conditions for successful exploitation of the internees” contributed (p.410). Major General Geoffrey Miller had been in charge of Guantanamo Bay Detention Facility before being assigned to Abu Ghraib, where he “called for the military police and military intelligence soldiers to work cooperatively, with the military police ‘setting the conditions’ for interrogations” (Schlesinger Report, p.912). As the Schlesinger Report of August 2004 notes, however, “techniques effective under carefully controlled conditions at Guantanamo became far more problematic when they migrated and were not adequately safeguarded” (p.911).

And so the Road to Abu Ghraib runs through Guantanamo Bay and back to Washington D.C. where, in December of 2002, Secretary of Defense Rumsfeld authorized broad categories of interrogation. The decision to topple Saddam Hussein without either the planning to anticipate an insurgency or the force to quell it contributed to the abuse we know of, by under-trained and under-supervised reservists in charge of more detainees than appropriate (Fay-Jones Report, p.988). The volume under review allows the reader to piece this together through the memos and reports; the editors do a great service by compiling these documents in one place. In that regard, it is a valuable resource especially useful for library collections. The memoranda are not always self-explanatory, however. Although the Taguba and Schlesinger Reports provide context, it is a volume whose entries I would not have been able to understand without Lederman’s helpful blog [*762] analyses (the electronic publishing of blogs also can provide near-immediate access to newly released reports, and analyses of them: see Lederman’s (2005b) next-day analysis of the Schmidt Report, for instance). Mark Danner’s TORTURE AND TRUTH: AMERICA, ABU GHRAIB, AND THE WAR ON TERROR (2004), based on his New York Review of Books articles, might also be of use for readers desiring more narrative; Sandy Levinson’s (2004) edited collection, TORTURE, contains essays exploring the philosophical and practical sides of torture.

In addition to being recommended for libraries, LAW AND POLITICS BOOK REVIEW readers will find that the volume also allows consideration of issues both mundane and grand. Most obviously, the expansive authority claimed by the administration invites explorations of the constitutional reach and limits of executive action; this plays out in July 2005, while this review is being written, with the White House threatening to veto a defense appropriations bill should Congress attach conditions on detainee treatment (see, e.g., White and Smith 2005). The many memos and reports also allow readers to explore the imperative of bureaucratic missions. And as Anthony Lewis notes in his Introduction, the role of the lawyer as advocate is also raised, especially by the torture memo itself. Selected memos can also profitably be used as discussion pieces for the difference between legal obligation versus policy, and whether the laws and constitution are merely a set of rules to play within, or if more broadly we want them to have an aspirational character.

The trail of documents here suggests that the pictures we have seen are the tip of an iceberg. Indeed, in late July 2005 the military defied a Federal District Court order to release 87 more photographs and 4 videotapes of Abu Ghraib abuse; the government’s position is that to do so would violate the Geneva Conventions by further humiliating detainees depicted in the photos (Zernike 2005). The power of photographs then is great, for the military has already released over 60,000 pages of documents about the abuse – 50 times what is included here. Ironically, the very photographs that draw our attention to the treatment of detainees allow us to focus on the few military personnel depicted in them. Only by reading the reports do we get a sense of how widespread the abuse was, and only by reading the memos are we forced to confront why.

REFERENCES:
Danner, Mark. 2004. TORTURE AND TRUTH: AMERICA, ABU GHRAIB, AND THE WAR ON TERROR. New York: New York Review of Books.

Lederman, Marty. 2005a. “Understanding the Torture Memos,” http://balkin.blogspot.com/2005/01/understanding-olc-torture-memos-part-i.html , accessed 7.25.05.

Lederman, Marty. 2005b. “Defining Human Down, Part III,” http://balkin.blogspot.com/2005/07/defining-humane-down-part-iii-schmidt.html , accessed 7.25.05.

Levinson, Sanford (ed). 2004. TORTURE: A COLLECTION. New York: Oxford University Press. [*763]

White, Josh, and R. Jeffrey Smith. 2005. “White House Aims to Block Legislation on Detainees.” THE WASHINGTON POST, July 23, 2005, at A-1.

Zernike, Kate. 2005. “Government Defies an Order to Release Iraqi Abuse Photos.” THE NEW YORK TIMES, July 23, 2005, at A-11.

CASE REFERENCES:
RASUL v. BUSH, 542 U.S. 466 (2004).

© Copyright 2005 by the author, Paul E. Parker.

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FEMINISM CONFRONTS HOMO ECONOMICUS: GENDER, LAW & SOCIETY

by Martha Albertson Fineman and Terence Dougherty (eds). Ithaca: Cornell University Press, 2005. 536pp. Cloth $60.00. ISBN: 0-8014-4311-3. Paper $29.95. ISBN: 0-8014-8941-5.

Reviewed by Claire E. Rasmussen, Department of Political Science and International Relations, University of Delaware. Email: cerasmus@UDel.Edu .

pp.754-757

Law and Economics scholars seek parisimonious explanations for social phenomena and a correspondingly simple legal structure to achieve their relatively simple ends. Feminist scholars, on the other hand, have devoted much time and ink complicating and challenging our understanding of the social world, seeking to root out and remedy social injustice. These two intellectual trends butt heads in the edited volume, FEMINISM CONFRONTS HOMO ECONOMICUS, a substantial anthology that seeks to engage law and economics scholarship from a feminist perspective. In spite of the feminist commitment of the authors included in the collection, the book may offer more to law and economics scholars than to feminists, who may find little that is new.

The first two sections examine the philosophical origins and assumptions of the Law and Economics school, providing a fairly succinct summary of its basic economic and legal principles and examining some general and feminist critiques. The essays address debates about the basic assumptions in economic literature. Authors discuss analytical and normative differences, sometimes challenging the logical consistency of economic approaches to basic differences over competing goals of efficiency or equality. Parts three through five examine some of applications of economic principles. Again, the volume moves from general discussion of the economic premises of the literature into specific feminist concerns, including welfare and the sexual division of labor. The final section of the text addresses the application of economic principles to other arenas of life, especially the family.

The introductory chapter reflects the general incredulity of feminist scholars toward law and economics literature, fearing the claims to scientific and neutral inquiry may mask defense of a sexist status quo. To their credit, editors Martha Fineman and Terence Dougherty have selected a set of authors who reflect a variety of positions relative to the Law and Economics approach. In Chapter Two, for instance, Neil Buchanan and Douglas Kysar engage in a lively debate about the logical consistency of economic analyses and whether feminists will be “colonized” by considering economic methodologies. Deirdre McCloskey defends a re-reading of the economics literature using Adam Smith and rejects oversimplifications such as “utility” calculations that, she argues, ignore the emphasis on ethical questions in Smith. Others attempt to co-opt economic principles for egalitarian purposes. Laura Kessler’s [*755] piece on women’s domestic work presents an argument for commodifying unpaid labor in the home, arguing that the egalitarian outcomes outweigh feminist concerns regarding the nature of care work. In the most law and economics friendly piece, Martha Erman provides a provocative defense of using business models, such as business partnerships, as an alternative legal structure for intimate relationships. The range of feminist perspectives enables the reader to consider critically the possible relationships to homo economicus, from outright rejection to cautious engagement. Whether the law and economics perspective might be “borrowed” by feminists in service of the goals of equality remains an open question.

Feminist critiques of law and economics will be familiar to most feminist scholars. Some of the arguments focus on empirical facts to note women’s exclusion from the intellectual premises of economic scholarship. Not only are women rare in the ranks of economists and law and economics scholars but the framework generally assumes an independent male laborer, though more recent work has also considered this male as the altruistic head of household. In addition, women have hardly fared well in the economic sphere, as articles by Elizabeth Mayes, Regina Austin and others demonstrate. Further entrenching economic norms can only further marginalize already economically disadvantaged women.

The philosophical arguments draw from a long-standing feminist critique of the liberal subject. As the title suggests, feminists have been critics of the idea of homo economicus, or “economic man,” as an empirically and analytically exclusive conception of human relationships. Obfuscating issues of subject-formation and power, the unencumbered subject who makes rational calculations on the basis of self-interest is at best an empirical error and at worst a normative nightmare. Several articles examine Gary Becker’s work on the family as an example of the gender dystopia lurking in the supposedly amoral and neutral economic analysis. Becker, who argues that the nuclear family, in which the male specializes in labor outside of the home while the female specializes in home work, is the most efficient and, therefore, should be supported in law through measures making divorce less desirable and social practices encouraging the sexual division of labor. The authors do not have to do much work to demonstrate the analytical and normative failures of such an argument. Curiously, however, while some authors note that many feminist scholars who are critical of “economic man” also disapprove of liberal political theory and consider the rights claiming subject as a potentially exclusive form of subjectivity, they do not pursue this tension for feminist legal scholars.

A limitation to the volume is the limited scope of the probable audience. The vast majority of contributors come from law schools where Law and Economics has made the greatest inroads. Such a focus, therefore, is not surprising. However, several essays mention the “colonizing” nature of economic analyses across a variety of disciplines where neoclassical economics have colored analysis because of its supposedly scientific status. Feminists in a range of disciplines, including economics, have resisted such [*756] colonization. One of the more interesting articles, Martha McCluskey’s “Deconstructing the State-Market Divide,” engages interdisciplinary scholarship, using literary criticism to examine the ways that economics rhetoric frames debates in limiting ways.

While I hesitate to suggest making a 500 page volume longer, another significant omission is consideration of the gendered implications of Law and Economics in a global context. Regina Austin’s essay is the only one to foreground women of color and and to consider the possibility that different women might have different stakes in economic and legal debates. With the exception of a brief discussion of the WTO in McCluskey’s article, questions of economic development and inequality on a global scale go unaddressed. If Law and Economics scholars can be accused of too much abstraction from the concrete realities of women’s lives, the omission of global gender issues seems to similarly limit the debate to small range of women’s arguments and experiences. The feminist concern that Law and Economics scholars like Becker naturalize and justify gender inequity by assuming the nuclear family is normal (both in the sense of being typical and being correct) could easily be challenged by considering the diversity of relations between gender, law and the economy more globally.

A final, small quibble with the text derives from an argument in the introductory chapter that “under the guise of positivist description, Law and Economics takes normative positions that coincide with late twentieth-century conservative politics” (p.7). I think this statement does not reflect the complexity with which the later authors address the politics of Law and Economics analyses. Chapters on welfare and the family demonstrate how supposedly neutral literature often uncritically echoes moral howls of complaint about single mothers and working women without either being faithful to their own logical principles or examining their own moral principles, making their arguments for social arrangement indistinguishable from, say, Senator Rick Santorum’s moral view of the universe. Several authors, however, see significance in the fact that welfare reform, premised upon economic principles, was undertaken by a Democratic president, in conformity with neoliberalism thus rendering many of the economic policies of liberals as free-market friendly as those of conservatives. Not noted are divisions within conservative politics today in which libertarian impulses are often contradicted by social conservatives. While some conservatives would be fond of Becker’s traditional family, they would likely be uncomfortable with the claims that questions of the family and sexuality are “morally neutral.” For this reason, I would like to have seen greater analysis of the most prominent advocate of the economic approach, Judge Richard Posner. His extension of the economics approach to sexuality has led him to the conclusion that we must view sexuality as morally-neutral and that policies of regulating sexuality (including sodomy laws) are irrational. Legal scholars may have little concern for some of these political points, but feminists should be interested in the possibility of political intervention in this space of tension between the rationality of the market and the morality of the family. [*757]

Several essays included in this volume may provide a useful introduction to the debate between feminist legal scholars and law and economics advocates, while others address substantive issues, like welfare reform, in interesting ways. Students new to either literature may want to read more in both genres before turning to this collection.

© Copyright 2005 by the author, Claire E. Rasmussen.

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CLOSING THE BOOKS: TRANSITIONAL JUSTICE IN HISTORICAL PERSPECTIVE

by Jon Elster. New York: Cambridge University Press, 2004. 310pp. Hardback. £40.00/$70.00. ISBN: 0521839696. Paperback. £17.99/$24.99. ISBN: 0521548543.

Reviewed by Matthew Holden, Jr., The Isaiah T. Montgomery Studies Project, Inc. Email: itmproject@aol.com .

pp.749-753

CLOSING THE BOOKS is a fascinating examination of matters important to both law and political science. “Transitional justice is made up of the processes of trials, purges, and reparations that take place after the transition from one political regime to another” (p.1). Jon Elster covers a vast amount of unfamiliar material, so I shall sketch briefly what he covers.

Teaching and Research 1: Elster’s Methodology
Elster’s methodology is foreshadowed in his earlier work, but the central methodological point in CLOSING THE BOOKS is to understand “justice” as it exists in the decision-making criteria of those asserting authority.

I find it convenient to think of this book as if one were teaching from it, or as if one were using it to frame research.

Teaching: Content
The book is divided into two Parts and nine chapters. Part I, “The Universe of Transitional Justice,” contains three chapters. Chapter 1 “Athens in 411 and 403 B. C.,” deals with disruptions and restorations of Athenian democracy in the fifth century BC. The transition in 411 was a combination of regime implosion and insurrection The dominant aim was retribution. Democracy was restored, but it was not full democracy. Initially, it was of the Five Thousand, and after that came full democracy, and prosecutions of the oligarchs widened (p.8).

The democracy was, however, discredited and displaced in a few years. Sparta first dictated a new oligarchy (p.10), but soon there was an uprising. Sparta then dictated a treaty of reconciliation. Elster discusses in exquisite details the provisions of this treaty, and the way that the provisions benefited one side or the other (p.11). In short, in 403 the dominant aim was reconciliation. Elster admits he does not know why this moderation occurred. It may have resulted from Spartan influence, a deal with oligarchs, or it may have represented free choice by democrats.

Chapter 2 deals with “The French Restorations in 1814 and 1815.” The Allies (Britain, Austria, Prussia, Russia) defeated Napoleon. They could have chosen anyone they wanted. There is a delicious pleasure watching politicians “deal,” and they would have made good subjects for Robert Caro.

Talleyrand persuaded the Tsar to accept a restoration, not some new monarch from outside. “He further persuaded Napoleon’s senate to express a wish for the return of the Bourbons, since the Allies would not accept any solution that could not be presented as desired by the [*750] French nation” (p.25). “The senate . . . stipulated strong political powers and extravagant economic privileges for the existing senators.” This brought Louis XVIII. It also brought back the angry aristocrats of old, who wanted their old privileges and property, which other people now possessed.

The king, in turn, would not sanction trials or political justice (justice via executive discretion), and only minimal changes in public administration (p.30). Napoleon escaped and was defeated at Waterloo. Whatever the electorate was, new elections brought in an assembly committed to the old crowd. Moreover, the king’s brother ran a de facto government in the Vendee, which was reactionary, brutal and murderous.

Chapter 3, “The Larger Universe of Cases,” sums up thirty odd cases. The Stuart Restoration occurred in 1660, with Charles II becoming king. Elster says that this was similar to the Bourbon restoration, which took place more than 150 years later. Charles’ pre-return tone of moderation was repudiated by extremists in Parliament.

The chapter also considers countries under colonial rule undertaking successful wars of independence. America and Algeria are Elster’s two cases, to make the point that such countries punish indigenous collaborators. This analogy is absurd. There was almost no similarity between the Muslim Algerians, who supported France, and the American loyalists. The American loyalists were ethnically and culturally identical to the Patriots, except that they never made the conversion to total independence. The relevant point is that they lost a good deal of property with their choice. Elster offers some calculations as to compensation to loyalists, but it is not clear whether the compensation came from the Crown to those who had stayed loyal or from the United States for property lost.

The chapter also treats the formerly occupied countries of Germany and Italy, Japan, as well as the countries of Eastern Europe, Latin America, and Africa.

An interesting exercise would be to take the author’s fourfold classification of exogenous regime/endogenous regime on one axis and exogenous process/endogenous process on the other, and allocate the cases without first looking at what Elster does with them. A second exercise would be more elaborate. It would be to array all the thirty odd cases on one axis and then create three columns on the other, representing trial, purges, and reparations. Elster does not provide such a scheme overtly, though he may have it implicitly in mind.

Chapter 4, “The Structure of Transitional Justice,” is a taxonomic effort, dealing with motivation, institutions, levels (supranational institutions, nation-states, corporate actors, and individuals), agents (wrongdoers, victims, beneficiaries, helpers, neutrals, promoters, wreckers), and decisions (legislative, administrative, and legal.)

The motivation of justice – the wish to see justice done – is seen as a trichotomy of reason, interest, and emotion, manifest in the institutions of justice. The “institutions” are not specific organizations so much as institutional forms or types of judgment: political justice (purest executive discretion), administrative justice, and legal justice (some kind of legal process in court) (p.84). [*751]

The institutions produce “decisions” that are not necessarily reflective of deliberate judgment. Most truth commissions have not even named perpetrators, let alone punished them. South Africa’s Truth and Reconciliation Commission is the major exception. If decision-makers conclude that either retribution or reparation is called for, then other political and procedural decisions also are called for. Elster again discusses in detail the decision-makers’ criteria and judgments.

Chapter 5, “Wrongdoers,” classifies wrongdoers, from most culpable to the least (fanatics, opportunists, and conformists), justifications for wrongdoing “offered with a claim to legal validity” (p.143). Elster points out that these often are classic and self-serving excuses. Among them, the following seem notably important in a range from the lesser evil argument that “If I hadn’t done it, someone else would have done it with even worse outcomes,” to the futility argument that “If I had refused, it would have made no difference.”

If one were teaching administrative law or public administration, one might find Elster’s view that there is a core of truth in some of these justifications to be interesting and provocative. The Dutch Government, he says, issued secret instructions in the event that the Germans took over: “‘civil servants had to stay on in the interest of the population.’” He also offers the example of France. Some “functionaries who might desire to step down might be asked by the resistance to remain in place and, as a result, be acquitted of charges of collaboration after the liberation” (p.145).

Chapter 6 deals with “Victims” (p.166) and carries the reader through a refined discussion of “material suffering” (p.168), “personal suffering” (p.175), “intangible suffering” (p.180), and of the burden proof to be offered when claims are being made. If nothing else useful were to be found in the book, undergraduates in the United States should be invited to read, reflect, and discuss seriously the pages on burden of proof (pp.183-187).

Chapter 7, “Constraints,” would be a wonderful chapter to discuss with overenthusiastic undergraduates who are hold to the belief that “right is right” and “wrong is wrong,” and who believe that they will always be clever enough to know what to do.

Elster examines the interest of outgoing parties in self-protection. This is notably important where transitions have been negotiated, when an important question is whether they should take seriously (believe!) what they are promised: “Under conditions of democracy and rule of law, however, negotiators may be unable to deliver on any promises they might make on behalf of future legislators and courts” (p.190). This was a problem in Argentina and Uruguay, where deals had to be made (and were hard to make and keep) that the military would not be penalized.

Elster offers an exciting discussion of credibility if the winner-negotiators are expected to be in power. The third party role is sometimes important in the contemporary world, as it was in ancient Greece and in the French restorations. Deal making was even more obscure in former Soviet countries, where the outgoing elite had control over nothing but information, yet somehow were able [*752] to make good arrangements for themselves.

The chapter also discusses economic constraints, where (in effect) the fear of capital flight limits what incoming elites can do. Even purely administrative constraints that one might not have considered are pertinent. Judicial administration, often not much noted by American scholars, can be a crucial factor. It is hard to conduct trials if there is an insufficient supply of judges.

I shall bypass the interesting discussion of “politics” in Chapter 9, which is narrowly focused on the electoral and strategic interests of political parties. I conclude with reference to Chapter 8 on “Emotions.” This chapter particularly commands attention as Elster tries carefully to formulate the relationship between emotions and actions, a distinction between urgency (allowing mature, prudent judgment) and impatience (“act now!”). The argument is carefully developed that emotions decay with time, although there is surely some need to consider the development of settled memory, prejudice and social doctrine. Perhaps we shall have some further tests of Elster’s argument as Saddam Hussein approaches trial.

Teaching and Research 2: Where Elster’s Material Leaves Troubling Questions
Elster’s avoidance of theorizing makes it hard to evaluate the evidence he presents. He does assert explicitly that winners do not punish their own. He also makes clear that compensation is much more likely for material suffering than for personal suffering. Nonetheless, the “historical perspective” is insufficiency utilized.

What known cases were not examined?
One of the reasons for considering Athens was to show that transitional justice is not limited to modern regimes or to democratic regimes.

Why not Rome?
Rome had more than its share of revolutions (Finer 1997). It would be remarkable if it never had the combination of trials, purges, and reparations.

What potential cases might have been examined?
Elster says that “As there was no serious effort to carry out either transitional justice or a transition to democracy in a very meaningful sense, I shall not include the creation of the Weimar Republic among my cases here” (p.48.) That seems intellectually unsatisfactory. I should have thought one would want the cases where transitional justice might have been considered, or was considered, but did not work, in addition to those presumed by the author to have been successful.

That is a rationale for a very different case. U.S. Reconstruction in the post-Civil War era was a form of transitional justice that was quickly abandoned. A proclamation of freedom for African slaves started the process. A policy of depriving the white elite of voting privileges for a time and demanding new pledges of allegiance was adopted. The granting of the suffrage to the freed Africans was made law.

In this case, as in the Weimar case, one is drawn to the impediments as subjects to be studied. There was a white resistance that may have been as significant as that led by King Louis XVIII’s brother in the Vendee. The killings of blacks by whites undoubtedly exceeded the reported killings in the [*753] “white terror” in France; several hundred individuals were killed (p.46). In fact, in at least a few cases, of which I know, massacres produced a higher death rate (per thousand population) than the 9/11 disaster. The effective restoration of the whites to power took place, and it was almost as if the 15th Amendment had never been adopted (Holden Forthcoming).

What is the measure of when “transitional justice” works?
The 1814/1815 decisions allowed the old aristocracy to return, to indulge their aggrieved sense of memory, and to make more extreme demands than the king himself favored. They secured some compensation, although not all that much, but they did not prevent the return of the Bonapartes.

Melissa Nobles (2001, at 468) writes of “legal and political decisions devised by incoming democratic regimes to address the excesses of outgoing repressive regimes and the harms endured by their victims” (emphasis added). Restorative justice, as used by Elizabeth Kiss, from the South African Truth and Reconciliation Commission, is “concerned not so much with punishment as with correcting imbalances, restoring broken relationships – with healing, harmony, and reconciliation” (quoted in Nobles 2001, at 468).

The reparations practices that Elster reports deal largely with benefits that people had on the account books. “The French Revolution did not punish the former elites for past wrongdoings, nor compensate the peasantry for what they had suffered.” Is the generalizable inference that “transitional justice” has had little or nothing to do with redistributive policy? If material compensation is not in the cards, then other issues of legitimacy arguably are open.

REFERENCES:
Finer, Samuel E. 1997. THE HISTORY OF GOVERNMENT FROM THE EARLIEST TIMES. New York: Oxford University Press.

Holden, Jr., Matthew. Forthcoming. THE REPUTATION OF ISAIAH T. MONTGOMERY: THE GREATNESS OF A COMPROMISED MAN. Charlottesville, VA: The Isaiah T. Montgomery Studies Project, Inc., for Mississippi Valley State University.

Nobles, Melissa. 2001. Review of Robert I. Rotberg and Dennis Thompson (eds.). TRUTH v. JUSTICE: THE MORALITY OF TRUTH COMMISSIONS. Princeton: Princeton University Press, 2000. 95 AMERICAN POLITICAL SCIENCE REVIEW 468-469.

© Copyright 2005 by the author, Matthew Holden, Jr.

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HUMANITARIANISM, IDENTITY, AND NATION: MIGRATION LAWS OF CANADA AND AUSTRALIA

by Catherine Dauvergne. Vancouver: UBC Press, 2005. 284pp. Cloth. $75.00. ISBN: 0774811129. Paper. $29.95. ISBN: 0774811137.

Reviewed by Jonathan Klaaren, Professor of Law, the University of the Witwatersrand, Johannesburg. Email: klaarenje@law.wits.ac.za .

pp.746-748

A number of studies have examined the relationship between migration laws and national identity. Some of these works uncritically assume a one-to-one relationship where laws reflect the identity and the identity reflects the laws. Other examinations find much more complexity in that relationship (Smith 1997). Catherine Dauvergne’s study of the relationship between the migration laws of Australia and Canada and their national identities by no means sits on the uncritical side of this fence.

One could say that this is due to her explicit use of critical theory. After surveying the work of liberal theorists on questions of migration, she situates herself within a critical school. She draws on Peter Fitzpatrick’s and Martha Minow’s insights regarding the dichotomous pairings and the inherent instability within liberal rights discourses and concepts (pp.25, 213). But her nuanced analysis is more than a use of, or a borrowing from, the pages of critical theory. Indeed, one of the attractive features of this book is its originality.

Dauvergne breaks up the migration law/national identity relationship into three components. First, her rendering of a law and identity perspective leads her to place particular focus on categorization, hierarchy, boundaries, and people. Here she is employing the lessons of constructivism and interpretivism in analyzing the relationship.

Second, she asserts that migration law is not only a logical place to find representations of national identity but also that migration laws are necessary for the boundaries of the community in settler societies such as Australia and Canada. This component becomes quite a strong claim, as Dauvergene sees migration law – in such contexts – to override the significance of constitutional law: “In settler societies, migration law and the mythology constructed in and around it is a prior condition to the community. As such, it is foundational, and constitutes the community in a way that constitutional law alone cannot” (p.51).

Dauvergne’s third step is an identification of liberalism’s failure to produce a justice standard relating to the question of migration and the paradoxical revelation of a humanitarian consensus across liberal national societies such as Australia and Canada. Dauvergne claims that humanitarianism – understood here as the practice of states to admit to residence persons who fall outside the letter of the migration laws and not as a basis for the use of armed force against a sovereign state nor as a concept underlying foreign aid and [*747] its delivery – is a central site for the elaboration of national identity.

Her theoretical argument for this centrality goes like this (pp.72-75): Liberal advocates of both open and closed borders share a sense that humanitarianism requires at a minimum that wealthy Western nations open up more admission places to those in need outside their borders. Humanitarian migration (including admissions of refugees) differs from family unification and economic migration but should still be understood against a framework of national need. Humanitarianism responds to a national need “to define and understand the nation to be compassionate and caring.” Humanitarianism is the opposite of justice since it is rooted in a type of difference created by material inequality. It “provides a stand-in for justice in the immigration realm while reinforcing the boundary between an ‘us’ group and a ‘them’ group.” Despite the existence of this consensus and its argued-for centrality to national identity, humanitarian migration has become the exception rather than the norm since the mid-twentieth century because migration is a bulwark against globalization.

Having outlined her humanitarianism theory, Dauvergne also points to the empirical significance of this variable for national identity in three processes, even though, as she acknowledges, in number terms, humanitarianism does not underlie a big proportion of admissions (25,111 of 226,913 admissions for Canada and 12,525 of 119,365 for Australia in 2002 and 2002/2003 respectively). Dauvergne examines the legal process of recognizing and thus constructing refugees in Australia and Canada. Here, Canada comes off better: less control and more multiculturalism – perhaps demonstrating the traces of White Australia and the two founding Canadian cultures (p.124). In looking at humanitarian admissions outside of the refugee process, humanitarianism seems likewise written more explicitly into the Canadian law, precedent, and practice. This is so even if its legal moorings may diminish its power. Third, Dauvergne voyages through the national court hierarchies and processes, reading court cases on migration to explore the relationship between national identity and these laws. In her view, differing constitutional rights contexts are ultimately not determinative (though differing concepts of the separation of powers may play a role) as the results and judgments in these cases reflect the influence of the national identities constructed in humanitarian admissions (p.211).

HUMANITARIANISM, IDENTITY, AND NATION brings in an important complicating variable to the usual linear relationship between migration laws and national [*748] identity – the complicating variable of humanitarianism. Is the central claim of the significance of humanitarianism for national identity proven? Given the relatively limited nature of the “strategic sampling” in the comparison of Canada and Australia (p.9), all readers may not feel clearly convinced on this point. In any case, the claim is perceptive and provocative and has been advanced in a study that is worth taking seriously within the realms of law and society, migration and citizenship studies, and political science. This argument would immediately benefit those studying, for instance, the relationship between migration law and national identity in other societies such as the United States or South Africa.

A final note concerns the relationship of migration laws and citizenship. There is no entry for “citizenship” in Dauvergne’s index – surprising in relation to a concept and analytical category that has been dominant in studies of migration laws and of national identity. Some may see the omission as a positive feature given the proliferation of citizenship studies; others have moved beyond the classic definitions of the concept (Mbembe 2001). In any event, Dauvergne’s omission here is quite deliberate. Her explanation comes in a footnote (p.11) where she explains that her concerns “cover some of the same areas as citizenship theory, but are for the most part more narrowly focused on law and admittance to the polity rather than on the subsequent questions of membership and participation.” While the theory of citizenship does cover the dimensions of rights-holding and political activity, it is also broad enough to include a study (such as this) examining permanent residence or citizenship as a legal status, as well as one linked to collective identity (Bosniak 2000). A slightly fuller justification of the deliberate lack of engagement with citizenship seems called for.

REFERENCES:
Bosniak, Linda. 2000. “Citizenship Denationalized.” 7 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 447-509.

Mbembe, Achille. 2001. ON THE POSTCOLONY. Berkeley, CA: University of California Press.

Smith, Rogers M. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven, CT: Yale University Press.

© Copyright 2005 by the author, Jonathan Klaaren.

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COMPARATIVE CONSTITUTIONAL REVIEW: CASES AND MATERIALS

by Michael Louis Corrado. Durham, NC: Carolina Academic Press, 2004. 264pp. Paper. $28.00. ISBN: 0-89089-710-7.

Reviewed by Hootan Shambayati, Department of Political Science, Bilkent University, Ankara, Turkey. E-Mail: hootan@bilkent.edu.tr .

pp.743-745

This is the third volume in a series on comparative law compiled by Michael Corrado and published by the Carolina Academic Press. The stated aim of this volume is to provide American and non-American students with a casebook comparing American and European experiences with judicial/constitutional review. Compiling a casebook or a selection of readings is, of course, a difficult task and one can always think of other material that should have been included. On the whole, Professor Corrado should be commended for his selection of material.

The publisher’s decision to list Corrado as the author is unfortunate. It gives the erroneous impression that this book is an in-depth comparative study of different experiences with constitutional review. The book contains very little original writing and is basically composed of selections from published material by other authors. As Corrado himself points out, his task has been that of an editor (p.ix) not an author.

Similarly, the failure to include a detailed table of contents including a listing of the original authors and their articles is unfortunate and means that finding the specific excerpts is rather difficult, requiring a search of the entire book. The only clue as to what is included in the book is provided in the “Acknowledgments” section that lists the original publication information for the material used.

Basically, this book is a collection of excerpts from published articles on constitutional review. Although excerpts from a small number of court decisions and the relevant constitutional provisions are also included, much of the book is composed of short—in the opinion of this reviewer often too short—excerpts from well-known English-language journal articles. These articles are organized into four chapters. The first three chapters trace the demise of parliamentary supremacy and the rise of constitutional review in France, Germany, Italy, and the United States. The fourth chapter deals with review under international law and as a consequence of the expanding role of the European Court of Justice and the European Court of Human Rights.

Chapter 1 discusses the concept of parliamentary supremacy. It includes excerpts from a number of articles on the topic and the relevant decisions of the French Council of State. The aim of the chapter, according to Corrado, is to provide a “background understanding of what the world would be like without [constitutional review], and why some might prefer a world of that sort” (p.ix). Given the importance of France and the French Revolution in the development of the notion of the absolute supremacy of [*744] the parliament, the chapter naturally focuses on France.

Chapter 2 is intended as an introduction to the American system of decentralized judicial review. The chapter also provides the basis for comparisons between the American and the European systems of constitutional review. Chapters 3 and 4 consider the emergence of constitutional review in France, Germany, Italy, and the European Union. Despite the inclusion of a chapter on the US system, the main audience for this book is the American law student who might be interested in studying constitutional review in other countries.

As for the contents, I am not a law professor and cannot judge the utility of this work in a law school class. As a political scientist, however, I find several aspects of this book problematic. The most interesting part of this book is the inclusion of some of the important decisions of the relevant courts. These decisions, some of which have been translated by Corrado from the originals, include excerpts from some 25 decisions, including classics such as MARBURY v. MADISON (US Supreme Court), COSTA v. ENEL (European Court of Justice), and, of course, the decisions of the various courts on abortion. The inclusion of these cases should allow the reader to compare how different courts have tried to deal with similar issues.

One difficulty in achieving this goal is that the secondary material included in the book and the manner in which they have been excerpted ignores the political context of constitutional review. As a political scientist, what I find particularly disappointing about this book is that no attention is paid to the overall political systems in which individual constitutional tribunals operate. Recent literature on new democracies points to the possibility that the courts, particularly constitutional courts, play very different roles under different political conditions. Similarly, the selections pay little attention to the institutional design of the courts and the consequences for the role of constitutional tribunals in a particular polity. For example, does the American-style life tenure produce a tribunal that plays a different role than its European counterparts where tenure is usually limited to a fixed term? Or, does docket control make the judges more or less likely to deal with politically controversial cases? Unfortunately, the selections in this book do not address questions like these.

Comparing decisions of the tribunals covered in this volume is further complicated by the absence of truly comparative studies among the selections. Despite the title, very few of the articles excerpted are actually comparative. Most of the articles are based on single country studies. Furthermore, since most of these articles were originally intended for an American audience, it is the American system that is often used as the basis for comparison. This, of course, is a characteristic of the field of comparative judicial studies in general. The importance of the United States in the development and the study of constitutional review means that the American system will always play a privileged position in this field of study. Nevertheless, the volume would have benefited from the inclusion of articles that compare various forms of [*745] centralized review with each other, instead of focusing on a single country.

Similarly, as already mentioned, the volume focuses on France, Germany, Italy, and the United States. These countries, of course, will be included in any discussion of comparative constitutional review. At the same time, in recent years we have had some excellent studies of constitutional review in many other countries that do not necessarily fit the models established by these four countries. A discussion of the role of constitutional review in the new democracies of Africa, Asia, Central and Eastern Europe, and Latin America, would have increased the value of the book and would have allowed for an examination of constitutional review in different political settings.

For the future editions of this book, I would also recommend a more extensive commentary by the “author” that would justify the selection of cases, legal decisions, and topics covered and that would actually bring out some of the similarities and differences among the cases studied.

CASE REFERENCES:
COSTA v. ENEL, [1964] ECR 585.

MARBURY v. MADISON, 5 US 137 (1803).

© Copyright 2005 by the author, Hootan Shambayati.

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AFFIRMATIVE ACTION AND RACIAL PREFERENCE: A DEBATE

by Carl Cohen and James P. Sterba. New York: Oxford University Press. 2003. 416pp. Hardback $30.00/£18.50. ISBN: 0-1951-4894-0. Paper $20.00/£11.50. ISBN: 0-1951-4895-9.

Reviewed by Daniel Lipson, Department of Political Science, Kalamazoo College. Email: dlipson@kzoo.edu .

pp.734-742

While the 2003 GRUTTER v. BOLLINGER decision concerning affirmative action at the University of Michigan Law School resolved disputes over the constitutionality of affirmative action that had been brewing for 25 years, impending turnover on the United States Supreme Court may lead the Court to limit or reshape its affirmative action jurisprudence. Now that the nomination and confirmation process to replace Justice Sandra Day O’Connor is underway, the constitutional status of affirmative action may not be as settled as it appeared to be. Just two years ago, Justice O’Connor firmly defended the constitutionality of universities’ use of race-based affirmative action in her GRUTTER majority opinion. Now that President Bush has nominated Judge John G. Roberts to replace O’Connor, affirmative action will likely rejoin abortion on the short-list of controversial social issues that dominate confirmation hearings.

While author Carl Cohen is a philosopher, he is also a major player in the affirmative action battle, and this volume references two occasions in which he became entangled in legal conflict. First, Cohen was the catalytic player at the University of Michigan who began the GRATZ v. BOLLINGER and GRUTTER v. BOLLINGER path to the United States Supreme Court. Indeed, Cohen is prominently featured as one of the central figures in Stohr’s (2004) account of the GRATZ and GRUTTER litigation. Cohen began the investigation of race-based affirmative action in the Literature, Science and Arts (LSA) undergraduate admissions and Law School admissions procedures. His State of Michigan Freedom of Information Act (FOIA) request gained him access to the very documents that sparked the lawsuits.

The second legal conflict revolved around the publication of this volume itself. As James Sterba mentions in the Preface, contractual disputes between Cohen and him “almost ended in a lawsuit” between the two authors (p.xi). According to Sterba, his close friend Cohen resisted the specifications of the book contract regarding the order of the debate, insisting that his writings in opposition to race preferences precede Sterba’s defense of affirmative action. Sterba wrote that, “[r]ather than delay the timely publication of this volume with a lawsuit and destroy our friendship, I have agreed to reverse the order of our essays” (p.xi). While this book focuses on the philosophical debate between proponents and opponents, both authors are intimately aware of the tangible legal and political dimensions of affirmative action and of the strong [*735] feelings and sensitivity Americans have about this delicate issue.

Together, these two legal stories highlight the explosive nature of the affirmative action debate in the United States. As polarized as the opposing sides may be, and as litigious as the issue is, the public disputes over affirmative action often overshadow complexities of the debates and of affirmative action policies themselves. In addition, the disputes often obscure commonalities – including even friendships – that exist across the great divide that separates proponents and opponents of affirmative action.

A variety of books on affirmative action were published soon after the Court decided these two University of Michigan cases. Journalist Greg Stohr’s A BLACK AND WHITE CASE provides a gripping account of the affirmative action drama at the University of Michigan, focusing on the university actors and other key players involved with the litigation. Patricia Gurin, et al.’s DEFENDING DIVERSITY (2004) provides an insider perspective on how social scientists at the University of Michigan assembled and framed empirical scholarship in making the legal case that diversity constitutes a compelling governmental interest, as required by the Supreme Court’s strict scrutiny test. Additional books in the post-GRUTTER era focus on topics ranging from the history of affirmative action in the United States to the variety in affirmative action policies around the world.

AFFIRMATIVE ACTION AND RACIAL PREFERENCE: A DEBATE by Carl Cohen and James P. Sterba falls squarely within the genre of normative arguments for and against affirmative action. Three features set this book apart. First, it succeeds at balancing thorough analytical argumentation with thoughtful incorporation of contemporary events and relevant research. Second, the writing is very clear, accessible, and well organized. Third, the debate format provides the reader with a helpful portrait of the differing assumptions and frameworks that undergird the differences between the classic arguments for and against race-based affirmative action.

This volume will not disappoint readers who seek a thorough account of the classic cases for and against race-based affirmative action. Collectively, Cohen and Sterba tackle a wide array of issues central to the affirmative action debate. They grapple with definitions of affirmative action and terminology; how affirmative action works in practice; whether race-based affirmative action violates the 14th Amendment equal protection clause and/or the Civil Rights Act of 1964; how large the preferences for racial minorities are and should be in elite universities; which, if any, rationales for affirmative action are compelling; which methods are narrowly tailored to achieve the above compelling interests; which racial and non-racial groups universities should prefer in the admissions process; to what extent affirmative action does and/or should “cream the crop” of applicants of color; and how harmful or beneficial affirmative action and its absence are for students of color.

However, the book is not without its limitations. Importantly, this volume continues to frame the affirmative action [*736] debate based on categories and divisions from the early years of affirmative action in the late-1960s and 1970s. This classic debate is becoming increasingly outdated, as new political dynamics have begun to produce an issue evolution (Carmines and Stimson 1989) that is leading to realignments and policy transformations.

The book is very current in one sense: both authors use contemporary events – such as Proposition 209, HOPWOOD v. TEXAS, and GRUTTER v. BOLLINGER – to support their arguments. However, the frameworks they employ to interpret these events come straight out of the affirmative action debates in the 1970s. During these early years of race-based affirmative action, opponents tended to center their case around an insistence on a narrow conception of meritocracy, showing little compassion for universities’ choice to give special consideration to minority and other disadvantaged applicants with lower grades and standardized test scores. On the other side, proponents defended race-based affirmative action on social justice grounds, insisting on group-based remedies for discrimination against racial minorities.

In many ways, these original frameworks persist today. At the grassroots level, supporters predominantly view affirmative action as a social justice policy that is central to the liberal civil rights agenda, while critics generally view it as well-intentioned but damaging reverse discrimination. However, the framework of the affirmative action debate has undergone major changes among legal, political, and organizational elites. Although critics of affirmative action won major legal victories via litigation and ballot initiatives in California, Texas, and Washington State, affirmative action proponents at the elite level were incrementally gaining the support of military leaders, corporate leaders, higher education leaders, and prominent elected officials from both major political parties. The thread uniting these elites is diversity management rather than social justice. Leaders of the Republican Party, Fortune 500 companies, and the U.S. military have their own, distinct, utilitarian reasons for defending race-based affirmative action. Supporters strategically adjusted their defense of affirmative action to privilege these diversity-management rationales, leaving behind the social justice remedial arguments that were once central.

As the colorblind leaders found themselves increasingly marginalized by these powerful, organizational elites, colorblind activists regrouped and revised both discourse and legal mobilization strategies. Prominent opponents today distance themselves from this rigid meritocracy discourse, instead voicing support for class-based affirmative action. Sterba and Cohen couch their debate largely within the original framework, paying little attention to the dramatic shifts in the debate that showed up so clearly in the GRUTTER litigation and ultimate decision. In part, this is because they chose to write a philosophical book that centers on the debate over competing conceptions of equality. But in doing so, their book missed out on the great transformations that have reshaped the debate over the past generation. [*737]

Like many others writing normative pieces on affirmative action, Cohen’s writing style is distracting because of its absolutist vocabulary and condescending tone. For example, he makes rampant use of hyperbole; he regularly labels race-based affirmative action as
“cruel” (p.130), “corrupted” (p.130), “hypocri[tical]” (p.130), “catastrophic” (p.144), and “disastrous” (p.162). In addition to his tendency to portray race-based affirmative action as a catastrophe, Cohen also writes in a strangely paternalistic tone, as if the readers will enjoy witnessing him scolding his co-author. The paternalistic manner in which he addresses and criticizes his coauthor (for example, when he begins a sentence saying “No, Sterba” on p.288) is also unusual and distracting for this kind of book. In addition, Cohen uses childish language such as “wrong and bad” throughout the book to delegitimize race-based affirmative action. While it is refreshing to read a philosophical text that relies on ordinary words instead of employing unnecessarily esoteric language, Cohen tips the scale too far in the opposite direction.

The debate in this volume bears a remarkable resemblance to the legal debate surrounding the 1978 BAKKE case. This alone is not necessarily a weakness in two senses. First, much has remained the same in the debate over affirmative action, and the authors’ careful attention to the issues raised in BAKKE – e.g. whether preferences versus quotas are narrowly tailored, whether the educational value of diversity is a compelling governmental interest, and whether the Harvard model of individualized review versus formulaic models of grade-and-test-score admissions is preferable – is central to the affirmative action debate today. Second, the authors’ choice to argue based on the classic divisions may reflect their judgment that the best arguments today are the classic arguments. Nonetheless, neither author adequately acknowledges the realignment that has transformed affirmative action law and politics.

Early opponents of affirmative action articulate a rigid, individualistic, meritocratic argument based on a narrow conception of meritocracy. Put simply, such colorblind activists agree with President John F. Kennedy that “race has no place in American life or law” and hold on to the narrow, meritocratic view that the sole appropriate role for admissions officials in elite institutions is to reward the most deserving. Such early critics of affirmative action have been chastised for lacking compassion for the downtrodden. In contrast, contemporary colorblind leaders like Ward Connerly have become much savvier in their arguments. For a variety of reasons, Connerly has moved beyond this early colorblind discourse that Cohen continues to embrace, instead articulating more cautious and compassionate positions. The most concrete change is that the new generation of colorblind leaders – many of whom are themselves non-white or multiracial – now speak regularly of their support for class-based or disadvantage-based affirmative action. Instead of taking a rigid stance in favor of merit and against any preferences, the new colorblind movement speaks of “special consideration” for those who have “overcome adversity.”

Yet, Cohen exhibits little support for the new colorblind movement’s turn; [*738] instead, he holds onto a narrow conception of merit and a firm objection to preferences. Indeed, he is suspicious of the rhetoric of “diversity” and “individualized review,” claiming that universities have been captured by liberal civil rights professionals who push the ideology of race preferences to further their own interests via disingenuous and hollow rhetoric.

One weakness of Cohen’s classic colorblind position is that its hard-line meritocracy arguments would presumably close the door not only to preferences for racial minorities, but to all preferences (e.g. for socially or economically disadvantaged, athletes, veterans, disabled, legacies, in-state or out-of-state applicants, men or women, and so on), and few citizens or elites would want to slide down this slippery slope. This hard-line view – that students with high grade-point averages (GPAs) and high standardized test scores are entitled to admission in selective institutions because they merit admission – prevents universities from intentionally shaping the composition of their entering class of students. As the military and Fortune 500 briefs in GRATZ and GRUTTER reveal – a topic I will return to below – leaders of public and private organizations claim to have compelling reasons to care deeply about the composition of their institutions. As Sterba points out, Cohen skirts this issue by refusing to take a position on non-racial preferences (p.336). By limiting his analysis to race preferences, Cohen takes the easy way out, avoiding taking a stance on class-based preferences, disadvantage-based preferences, or other common targets of preferences.

Compared especially to Connerly’s colorblind agenda, Cohen exudes less compassion for universities’ efforts to aid the disadvantaged and to broaden the conception of merit. Cohen appears to assume that one particular, formulaic model of conducting university admissions that relies heavily on grades and standardized test scores is the only legitimate way to measure merit (pp.138-139). He also appears to assume that this narrow measure of merit is the only legitimate yardstick for deciding university admissions. It is important to note that the trend among admissions professionals over the past decade has been to move away from this model and instead rely on a holistic, individualized review of applicants.

In contrast, Ward Connerly’s strategy for winning over converts appears to be much more politically promising than Cohen’s. Connerly embraced and even mandated preferences for the socially and economically disadvantaged; note that the University of California Regents’ 1995 SP-1 directive – which Connerly masterminded – bans the use of “race, religion, sex, color, ethnicity, or national origin as criteria for admission to the University or to any program of study” but instead requires the campuses to give consideration to applicants who have “suffered disadvantage economically or in terms of their social environment.” Colorblind leaders like Connerly also have avoided the trap of claiming that applicants with high GPAs and test scores are necessarily the most qualified and hence entitled to admission; Connerly instead has gradually come to embrace universities’ efforts to measure merit more broadly and to admit applicants holistically via individualized review [*739] instead of using formula-based admissions.

Cohen’s argument also suffers from being too absolutist in several respects. First, he is so skeptical of race-based affirmative action that he defines it in a highly problematic way. Cohen defines race preferences as “the policy of giving special advantages to the members certain minorities simply on the ground that they are members of those ethnic groups” (p.3). As Sterba notes, Cohen’s definition of race-based affirmative action makes no mention of a core component of affirmative action—namely, equality. Affirmative action has traditionally been designed to be a civil rights policy that promotes equality via concerted efforts to include members of groups who currently suffer, or have in the past suffered, discrimination. This is not at all apparent in Cohen’s definition. To imply that affirmative action proponents seek to give preferences to minorities for preferences sake is to misunderstand affirmative action.

Second, Cohen’s blanket assertions about race preferences are often so extreme as to be highly unpersuasive. Colorblind scholars either ought to reject race preferences under all conditions or else specify persuasive rules for discerning the conditions under which such preferences are legitimate. Cohen takes the hard-line position that race preferences are never statutorily, constitutionally, or morally acceptable. For example, he writes that “[t]here is no ethnic preference that can be ‘benign’” (p.34). As Sterba notes, Cohen’s zealous opposition to every racially preferential policy shuts the door on numerous types of legitimate anti-discrimination measures, including court-ordered remedies that are authorized under the Civil Rights of 1964: “Clearly, the Civil Rights Act does prohibit racial preferences that exclude or discriminate, but it should not be taken to prohibit all forms of racial preferences, because that would mean that it would prohibit the very preferences that are needed to correct for violations of the Act itself, thus making its enforcement impossible” (pp.317-318).

Cohen’s argument is strongest in the sections that do incorporate the contemporary colorblind arguments. Cohen objects to government classifications of individuals based on their race not only on classic colorblind dogma of individualism, but also based on objections to government’s enterprise of constructing and perpetuating racial categories. Cohen wisely points to the increasingly visible dilemmas of multiracial identity in his argument against race-based affirmative action. If government allows universities to use race-based affirmative action, then government and universities inevitably must enter the business of deciding, for example, who is African-American. If universities trust applicants’ racial self-identifications, then they open the door to possible cases of students lying or misleading the universities in order to increase their chances of admission. Apart from self-identification, university officials are faced with uncomfortable choices in the case of multiracial applicants.

Should they use the problematic “one-drop rule”? If not, what method should universities use to decide who is a racial minority? As legal counsel for Plessy argued in the classic PLESSY v. FERGUSON case, government [*740] classifications by race are inherently problematic because they differentially treat individuals based on questionable and inherently problematic criteria. Whereas proponents of affirmative action want to duck these difficult “membership” questions, contemporary colorblind actors are beginning to apply the left’s post-structural insights into the social construction and deconstruction of identity against the left’s civil rights policy agenda. Whereas Sterba and other proponents argue that “race matters,” and that government and private institutions should use color-conscious affirmative action remedies in order to achieve a just colorblind society, Cohen argues that affirmative action policymakers continue to “invent” race (Skrentny 2002) and cement the very artificial and damaging racial categories that civil rights leaders such as Martin Luther King, Jr., sought to dismantle.

As is the case for Cohen, the primary weakness of Sterba’s argument is that it too is rooted primarily in the discourse over affirmative action from a generation ago. The classic defense of race-based affirmative action is that equality before the law requires that government take affirmative measures for racial minorities to remedy past and present discrimination. In contrast to the classic colorblind model’s individualistic orientation, the original, remedial defense of affirmative action is rooted in a structural framework for which the racial group – rather than the individual – is the unit of analysis. While critics of affirmative action have long dismissed such defenses of affirmative action as dangerous, if well-intentioned, “social engineering” by government that results in reverse discrimination, affirmative action supporters have insulated themselves by reframing affirmative action via the rhetoric of outreach, opportunity, and diversity.

One of the best features of Sterba’s section of the book is his precision in categorizing and defining these three varieties of affirmative action policies: remedial affirmative action, outreach affirmative action, and diversity affirmative action. While Sterba supports all three, he recognizes that the Supreme Court has largely closed the door on remedial affirmative action except in rare cases of court-ordered desegregation measures (primarily in public universities in the deep South). Siding with Brennan’s dissenting opinion in BAKKE, Sterba argues that race-based affirmative action should be subject to intermediate scrutiny rather than strict scrutiny. Sterba’s conception of “diversity affirmative action” mirrors Justice Powell’s articulation of the diversity rationale for race-based preferences, which the Supreme Court in GRUTTER firmly established as binding precedent in 2003.

While Sterba clearly defines and defends his three varieties of affirmative action, his case for affirmative action underemphasizes some of the more important contemporary transformations in the new color-conscious movement. Most importantly, he defends affirmative action from a liberal, civil rights perspective, failing to recognize adequately the powerful conservative, managerial case for affirmative action that has won over the Supreme Court as well as leaders of Fortune 500 companies, the military and other government agencies, and elite higher education institutions. [*741]

Sterba asserts that opposition to affirmative action comes from a conservative ideology, and he defends affirmative action using a liberal, social justice framework. In contrast, the Supreme Court upheld the constitutionality of race-based affirmative action in GRUTTER largely on the grounds of diversity management logic that were articulated by corporations and military brass, rather than on the social justice logic that were articulated by liberal civil rights organizations. By relying heavily on the military and Fortune 500 amici briefs, O’Connor’s decision deferred to the pleas of these leaders of powerful, and traditionally conservative, institutions. The corporate and military briefs held that race-based affirmative action is a crucial tool for the management of corporations and the military. The military brass brief argued that a diverse officer corps is essential to American national security because racial tensions otherwise result from disproportionately non-white enlisted personnel resenting being controlled by white officers. As important an issue as this might be for national security, such a case for affirmative action is fundamentally not based on equality or social justice. Instead of focusing on the rights of the minority recipients in gaining access to institutions, such a case for affirmative action focuses on the benefits to the institution in having more minority recipients. Whether or not the result is the same, the case for affirmative action is dramatically different. The Fortune 500 companies filing amici briefs similarly support race-based affirmative action because it helps them achieve their own profit goals. Specifically, the briefs asserted that race-based affirmative action – as a tool for producing and managing diversity in the workforce – is crucial for a variety of essential functions, including product development, marketing, and workforce relations.

In short, Sterba does not anticipate or respond to the criticism that affirmative action has lost its social justice roots and become coopted by large organizations for diversity management purposes. While he endorses remedial affirmative action, outreach affirmative action, and diversity affirmative action, Sterba does not acknowledge the possibility that the diversity affirmative action he is supporting has mutated to the degree that it is no longer primarily a civil rights policy but is rather a utilitarian, diversity management policy. According to this view, race-based affirmative action is increasingly becoming a tool for large organizations – both public and private – to manage diversity to further their own non-civil-rights organizational interests. Some view this as elite cooptation of affirmative action; others see it as savvy, strategic reframing by the left to successfully persuade the Supreme Court and other decisionmakers that affirmative action passes constitutional muster. In fairness to Sterba, some of this view does come through in his defense of diversity affirmative action.

Overall, AFFIRMATIVE ACTION: A DEBATE would be an excellent choice for courses on affirmative action, civil rights and racial politics, legal philosophy, ethics and politics, or other courses focusing on race and equal protection. Its accessibility, depth, attention to current events, and debate format make for a fascinating and illuminating analysis of one of the most [*742] explosive and controversial public policies in the United States.

REFERENCES:
Carmines, Edward G., and James A. Stimson. 1989. ISSUE EVOLUTION: RACE AND THE TRANSFORMATION OF AMERICAN POLITICS. Princeton, N.J.: Princeton University Press.

Glazer, Nathan. 1987. AFFIRMATIVE DISCRIMINATION: ETHNIC INEQUALITY AND PUBLIC POLICY. Cambridge, Mass.: Harvard University Press.

Gurin, Patricia, Earl Lewis, Gerald Gurin, Eric L. Dey, Sylvia Hurtado. 2004. DEFENDING DIVERSITY: AFFIRMATIVE ACTION AT THE UNIVERSITY OF MICHIGAN. Ann Arbor, MI: University of Michigan Press.

Skrentny, John D. 2002. “Inventing Race.” 146 THE PUBLIC INTEREST 97-113.

Skrentny, John David. 1996. THE IRONIES OF AFFIRMATIVE ACTION: POLITICS, CULTURE, AND JUSTICE IN AMERICA. Chicago: University of Chicago Press.

Stohr, Greg. 2004. A BLACK AND WHITE CASE: HOW AFFIRMATIVE ACTION SURVIVED ITS GREATEST LEGAL CHALLENGE. Princeton: Bloomberg Press.

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

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

HOPWOOD v. TEXAS, 78 F.3d 932 (5th Cir. 1996),

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

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE, 438 US 265 (1978)

© Copyright 2005 by the author, Daniel Lipson.

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THE LAW MOST BEAUTIFUL AND BEST: MEDICAL ARGUMENT AND MAGICAL RHETORIC IN PLATO’S LAWS

by Randall Baldwin Clark. Lanham, MD: Lexington Books, 2003. 192pp. Cloth. $58.00. ISBN: 0739106864.

Reviewed by Joseph Reisert, Department of Government, Colby College. Email: jrreiser@colby.edu .

pp.730-733

Notorious for its difficulty, the LAWS is one of Plato’s most neglected dialogues, though its ostensible subject is a matter of the greatest practical significance. The LAWS recounts the conversation of three elderly men as they walk together on a hot summer’s day along the road from Knossos to the mountain cave where Zeus had, it was believed, conversed with Minos, the celebrated Cretan lawgiver. The conversation begins when an unnamed Athenian suggests to his Cretan and Spartan companions that they might all have a more pleasant journey if they were to spend the time “discussing the political regime and the laws, talking and listening” as they proceed, pausing occasionally to rest in the meadows and cypress groves they will encounter along their route (Pangle 1980, at 625b). Kleinias, the Cretan, agrees, and Megillus, the Spartan, does not object. During the first stage of their ascent, the Athenian Stranger asks his Dorian traveling companions about the laws of their cities, which according to the conventional wisdom of the day, were the best in Greece. Tactfully but steadily, the Athenian leads his companions to doubt the wisdom of their ancestral laws, building to the preliminary conclusion that “the lawgiver must in laying down his laws aim at three things, namely that the city for which he legislates be free, that it be a friend to itself, and that it possess intelligence” (Pangle, at 701d). In answer to the Athenian’s desire to find a “sort of test in conversation” of the utility of these conclusions, Kleinias reveals that he has been commissioned, together with nine others, to legislate for a new Cretan colony and proposes that they “construct a city in speech” with the twin aims of evaluating the merits of the argument thus far and of helping him to prepare for his legislative responsibility (Pangle, at 702d). The balance of the dialogue largely consists of the Athenian Stranger’s code of laws for the new colony, Magnesia. So impressed are they by what they hear that Kleinias and Megillus insist, in the closing lines of the dialogue, that the Athenian Stranger join in the founding of Magnesia.

With THE LAW MOST BEAUTIFUL AND BEST, Randall Baldwin Clark has produced a monograph that offers a detailed and highly focused analysis of a single, prominent family of images and arguments that illuminates one of the dialogue’s central themes: the problem of establishing the rule of law among persons who are not innately disposed to obey the law’s commands. This problem long commanded the attention of political theorists, from the time of Plato and Xenophon at least until that of Rousseau. Although today the task is regarded as a problem more suited to empirical investigation than philosophical analysis, the nature and foundations of the rule of law remain [*731] matters of the greatest import, and the establishment of the rule of law where it has not previously existed remains an urgent, practical concern. Of course, no reasonable lawgiver today would propose the Athenian Stranger’s code of laws for any political community, but Plato’s artful investigation powerfully illuminates several of the deep tensions any empirical lawmaker should expect to confront, notably including those between religious tradition and reason, between satisfying the needs of the body and securing the conditions for the elevation of the soul, and between establishing the prerequisites for civic harmony and observing the strict demands of justice.

As Clark observes, the Dorian laws implemented the most straightforward solution to the problem of legislation—established, it was believed, by divine authority, the laws demanded obedience, which was secured through coercion and indoctrination. And the unanimous conclusion of ancient observers was that this solution succeeded—Sparta’s political regime achieved an enduring stability that always eluded Athens. Remarkably, the Athenian Stranger convinces his aged Dorian companions to reject this traditionally successful model of legislation. Instead, he makes the remarkable proposal – familiar to all who have even slight acquaintance with the dialogue – that the commands and prohibitions of the laws be introduced by explanatory preludes, so that the citizens will be told by the laws themselves why they ought to obey. Understanding the aims of law should secure the willing obedience of its subjects—or so the Stranger declares.

Clark maintains that the Athenian accomplishes this remarkable feat of persuasion by employing a series of medical and therapeutic analogies: Citizens who are inclined to break the laws are shown to exhibit a disorder of soul which requires treatment, just as ordinary patients suffering from physical injury or disease require treatment to improve the health of their bodies. The legislator, then, stands in relation to the citizen as the healer to the patient. The brute commands of conventional lawgivers, the Stranger argues, resemble the commands that the servile physician’s assistant would direct to the slaves he treats. Hippocratic physicians, however, who treat free men, do not speak thus: they inquire carefully into the specific circumstances and conditions of the patient, and they explain their diagnosis and seek the willing cooperation of their patients, which in due course they secure. Just Kleinias and Megillus choose Hippocratic physicians to treat the aches and pains of their old age, so also do they prefer the rational lawmaking of the Stranger, which seeks to rule with the willing cooperation of the ruled. Clark also discerns a deeper significance to this turn towards rational medicine: it demonstrates the traditional norms to which the Dorians give their allegiance require to be examined rationally – philosophically – and to be revised to more closely satisfy the demands of reason (pp.86-87; Pangle, at 857c-e).

In Clark’s view, however, the LAWS does not simply endorse the philosophical approach to legislation implied by the Stranger’s endorsement, and his interlocutors’ acceptance, of the analogy between Hippocratic medicine and lawmaking. Nor should we suppose [*732] that Plato conceived elderly Dorians, like Kleinias or Megillus, to be the primary audience of the LAWS. Clark argues instead that Plato’s rhetoric is aimed at youthful readers, whom he suggests are characterized by “powerful erotic desires and skepticism concerning the verities of received traditions” (pp.8-9). He reasons that the Athenian Stranger’s endorsement of the Dorian strictures against the criticism of the laws by the young (Pangle, at 634d-e) in fact should excite the young to an eager interest in that from which they have so pointedly been excluded (p.9). Such young people, according to Clark, would delight in the Stranger’s critique of their elders and welcome the substitution of philosophy for tradition as the normative basis of law. The Athenian Stranger, however, also has a critical message to deliver to these metaphorically eavesdropping youngsters. Just as the elderly Dorians required to be cured of the spiritual deformities inflicted by an excessive awareness of their corporeality and mortality, so also do the “young Athenians” require treatment for their excessive indifference to death and impatience with all bodily constraints.

Introduced to temper the rigidity of the Dorians’ ancestral laws, philosophy itself requires to be tempered. This tempering, argues Clark, takes place in Book Five of the LAWS. Having introduced, in Book Four, the idea of legislative “preludes,” Plato’s Athenian Stranger proceeds in the subsequent book to consider, and reject, the communism of property and the abolition of private families – two of the key institutions Socrates had devised for the Kallipolis of REPUBLIC. Although he describes the Socratic regime as unconditionally best (Pangle, at 739c), the Stranger proposes for Magnesia a “second best” regime based on private property and traditional families in what Clark somewhat histrionically characterizes as “a jugular-grabbing repudiation of the Socratic platform” (p.95). Remarkably, the Stranger’s arguments for departing from the strict demands of reason forcefully remind Clark of the practice of Hippocratic physicians – which had, in the previous book, been cited to justify adherence to reason rather than compulsion. This “striking modification” of the Stranger’s view of rational medicine should, he explains, signal to readers that the political world cannot be remade wholly in accordance with the demands of philosophy (pp.102-103).

Nor does the Stranger’s concession to unreason end there: he also makes use of a series of arguments and analogies based upon the decidedly irrational, “magical” practices of folk-healing—he speaks of drugs, charms, fetishistic objects, spells, sorceries, incantations, and the rest. Where rational persuasion is impossible, the legislator must sometimes “persuade without convincing,” to use Rousseau’s felicitous phrase. Hence the need for magic, and for persuasive rhetoric, which Clark argues, Plato likens to magic. In Clark’s view, there is no contradiction between the Stranger’s use of magical and medical language. The Stranger uses both forms of therapy because each answers to a different human need: “In connection with political life, the Stranger’s invocation of the image of the rational physician teaches the importance of philosophy and its respect for the principle of voluntarism; his extensive use of [*733] magical therapy simultaneously suggests the limits thereof” (p.149).

THE LAW MOST BEAUTIFUL AND BEST makes a distinctive contribution to the literature on Platonic political philosophy, albeit a narrow one. Clark is a careful reader of Plato’s text, referring as necessary to Plato’s Greek, but generally citing from Thomas Pangle’s excellent English translation. Clark has thoughtfully engaged a substantial portion of the secondary literature on the LAWS, and, at its best, Clark’s work is highly learned and precisely argued. In particular, Clark’s chapters on Hippocratic medicine and magical folk-healers in classical antiquity offer a wealth of information that provide valuable context for understanding Plato’s references – in the LAWS and elsewhere – to these practices. At times, however, the argument strains: for example, that Hippocratic medicine is said at one point to stand for philosophy and at another point to represent an empirically grounded pragmatism introduced as a limitation of philosophy is more of a difficulty than Clark’s deft concession that it is a “striking modification” acknowledges. More significantly, it is not clear in the end whether the cluster of medical and magical images can bear the weight Clark’s analysis places on them. To be sure, the analysis of these tropes provides a useful path into the dense and obscure argumentative thickets of the LAWS, and Clark has done a useful service in marking out that path. However, at certain moments in the text, just as the argument began to point toward wider vistas – for example in the exploration of the similarities and differences between the arguments of Plato’s REPUBLIC and LAWS – Clark’s focus on the medical and magical compelled him to turn away, back towards his labor in the undergrowth of argument. In consequence, THE LAW MOST BEAUTIFUL AND BEST will prove rather more useful to specialists than to readers seeking to make their first acquaintance with Plato’s extraordinary account of legislation.

REFERENCE:
Pangle, Thomas L. 1980. THE LAWS OF PLATO. New York: Basic Books.

© Copyright 2005 by the author, Joseph Reisert.

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PRESCRIPTIVE LEGAL POSTITIVISM: LAW, RIGHTS AND DEMOCRACY

by Tom Campbell. London: Cavendish Publishing/UCL Press, 2004. 342pp. Paper. £25.00/$50.00. ISBN: 1844720225. Cloth. £50.00/$70.00. ISBN: 1844720233.

Review by Martin Shapiro, School of Law, University of California, Berkeley.

pp.726-729

Tom Campbell is an Australian moral philosopher with a particular interest in law and politics. His work is grounded in a standard theory of moral sentiments in which every individual is informed by an empathically based altruism when in a contemplative state that is somewhat distorted by self-interest when the individual moves to action. The moral truths that contemplative persons seek as guides exist and are knowable through analytical discourse, so that democracies are capable of enacting normatively correct laws. Knowing that their actions are likely to be excessively influenced by self-interest, citizens of a democracy will enact laws curbing and guiding that self-interest in order to achieve the outcomes to which their moral sentiments inspire them. Thus Campbell labels his position positivism because it carefully distinguishes is from ought, treats laws or rules as human creations and holds that laws should themselves contain no moral terms. He rejects Austinian varieties of positivism that define law as the command of a unitary sovereign and logical positivism that treats morals as mere individual or collective preferences. Instead his is a morals based and thus “prescriptive positivism.”

As a political theory his position becomes one of the rule of law, that government shall act by, and itself be governed by, general, clear and specific rules. Making these rules is the exclusive province of the legislature. Courts are not to make law but only to apply the laws made by legislatures to achieve the intent of the legislature as revealed by the plain meaning of the statutory language in light of the social circumstances surrounding their enactment.

Two overlapping features of Campbell’s approach move very usefully beyond the conventional. The first is an extended treatment of the ethical duties of various participants in government by rule of law. While recognizing that, in fact, legislators sometimes deliberately enact statutes that do not clearly state a single or compatible set of intents, Campbell assigns them an ethical duty to do so. Similarly recognizing the element of discretion to be inescapable in judicial statutory interpretation, Campbell assigns judges the ethical duty to follow legislative intent and avoid judicial law making. And, unlike most writing on the rule of law, Campbell takes lawyers very seriously as participants. Moreover, rather than parroting the usual clichés about the glories of adversary proceedings or the current cries of alarm about excessive adversarial legalism, Campbell places an ethical duty on lawyers to subordinate the interests of clients to the prescriptions of the law.

Campbell accepts written constitutions and constitutional judicial review into his version of rule of law, although one [*727] senses here only a reluctant acquiescence in practices now too deeply ingrained in developed democracies to be opposed successfully. He is completely opposed to judicial enforcement of constitutional, individual rights, so he does not have the difficult task of fitting such review into a majoritarian, democratic legal positivism. His opposition to rights review is essentially Kelsenian, that rights review inevitably places far too much political discretion in the hands of judges to be compatible with democracy. Indeed as a socialist he is highly suspicious of the whole idea of rights which may serve to camouflage and sanctify various bourgeois defenses of the vicious capitalism and attacks on the holy welfare state. Part of the book is devoted to a carefully argued discourse of rights explicitly designed to vindicate left rights and denigrate right rights.

Ultimately, however, for Campbell even left rights are to be left to the standard electoral, representative law making processes and kept away from courts, except of course when legislatures enact clear rights statutes that themselves provide for judicial enforcement. Even then there are grave dangers of excessive judicial discretion that ought to caution legislatures against overly ambitious rights legislation. Campbell acknowledges the dangers to minority interests in his assignment of rights protections exclusively to legislatures. His response is a now familiar hymn to “deliberative democracy,” in which we will all talk so much to one another that we will love one another and our altruism will prevail over our selfish interests.

So in the end Campbell tells us that his prescriptive positivism is also democratic positivism and deliberative democratic positivism.

And finally there is some back tracking under pressure from those who place less faith in deliberate democracy to protect rights than Campbell (and such countries as Norway, Sweden and the Netherlands) have. There is a coy flirtation with some kind of deliberation rather than rights enforcing judicial review and even less enthusiastically with statutory, judicially partially enforceable, bills of rights.

For those basically interested in general legal philosophy, this book provides the kind of careful analytical arguments expected of philosophers and joins work by Postuma and Waldron whom Campbell cites as his allies.

For those basically interested in the politics of judicial review, this book adds another piece of anti-rights review argument along familiar lines. It is in no way a criticism of the book, which states its argument against rights review clearly and effectively, that it does not help us much with how judges legally educated in a dominant European and Latin American positivist tradition are to handle the rights constitutional judicial review now assigned to them by their national constitutions and various transnational rights instruments. Not at the philosophical and prescriptive levels at which Campbell quite justifiably chooses to operate, but at the level of everyday politics in which many of us are interested, the key question is how judges trained in a positivist and heavily Kelsenian tradition are to treat constitutional bills of rights declared by [*728] those very constitutions to be judicially enforceable, when the tradition in which they have been trained, and as expressed by Campbell, tells them not to do rights review. The relative passivity of Latin American judges in rights review is sometimes partially explained in terms of their positivist legal education. Yet, European judges also trained in positivism, and operating in separate constitutional courts explicitly structured according to Kelsenian principles, have been quite activist when, contra Kelsen and Campbell, they have been explicitly assigned rights review by their new constitutions (or in the French case seized it on their own).

For those interested in these kinds of questions, two portions of Campbell’s work are of particular interest—his treatment of the ethical duty of judges to follow the intent of statutes rather than make law, and his espousal of an “originalist” mode of interpretation of that intent.

Yet, the ultimate dilemma remains as cogent as Campbell’s reasons may be for rejecting constitutional rights review; deliberative, democratic, prescriptive positivists have no choice but to accept such review both as an is and an ought if the citizens have chosen, after due deliberation and by democratic processes, to institute a constitution that clearly and specifically prescribes a bill of rights and assigns courts a duty to vindicate the enumerated rights by declaring statutes invading those rights unlawful. Under such circumstances, the constitutional rights text itself becomes positive legal text, the intent of which, according to positivists, the courts have an ethical duty to implement. The analogy to statutory interpretation, however, does not quite fit. Even when constitution enactors act ethically, constitutional rights text is almost unavoidably going to be far more general, and thus less clear as to original intent, than ethically drafted statutory language. Moreover, although judges may well interpret statutory language in the light of the circumstances prevailing when the legislation was enacted, leaving it to legislators to revise or replace the statute as circumstances change, they can hardly follow this path in interpreting constitutions which, typically, are difficult to amend and whose enactors have more or less explicitly stated their intent that a constitutional language, unchanged, shall apply in future, as well as original, circumstances.

Indeed, mere statutes are sometimes clearly intended by legislatures to continue to be judicially applied, unchanged in language, to changing circumstances, as in continental civil codes. In order to obey the legislature’s intent, continental courts applying the codes have had to inform their plain meaning interpretation by considerations of changed circumstances as well as original ones. In many instances, changed circumstances on the continent have led to substantial revisions of the national code, with the same revision in some countries made by legislative amendment and in others by judicial interpretation. Here again Campbell provides good reasons for restraining judicial discretion, but the code enactors themselves have often demanded such discretion by enacting codes whose language they clearly intended to remain unchanged for long periods and which they, nevertheless, intended to be effective over long periods in which they [*729] knew circumstances would change. The positivist code law judge makes a good deal of law by “interpretation” because that is what he/she sees as the legislature’s intention.

Ultimately Campbell cannot give us much guidance beyond a general plea for caution, if what we are concerned with is the now flourishing and proliferating practices of constitutional rights judicial review. For the minority-majority problem, he offers the pie in the sky of “deliberative” democracy. For the problem of judicial discretion when Campbell’s (and Kelsen’s) strictures against rights review are ignored, as they often are, Campbell offers a canon of ethical judicial interpretation that does not quite fit and, in his own view, cannot be made legally binding, and a canon of rights which says that the rights he likes are rights, and those he doesn’t aren’t.

© Copyright 2005 by the author, Martin Shapiro.

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RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA: FOUR PERSPECTIVES ON DESEGREGATION AND RESEGREGATION

by Kevin Brown. Durham, N.C.: Carolina Academic Press, 2005. 458pp. Cloth. $45.00. ISBN: 1-59460-025-2.

Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University. Email: oneillt@southwestern.edu .

pp.722-725

We live in the “Post-Desegregation Era,” a time marked by increasing racial separation in our public schools and growing judicial emphasis on individuality at the expense of equality. This is the central premise of Kevin Brown’s RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA. Brown, the Charles A. Whistler Professor of Law at Indiana University, seeks to explain the impact of four “discourses” that mold our perception of racial and ethnic phenomena. He also seeks to explain how the shift from the “Desegregation Era” to the “Post-Desegregation Era” affects the nation’s struggle to close the academic achievement gap between African-American and non-Hispanic schoolchildren. Curiously, he never attempts to explain why this shift occurred.

Brown’s four discourses are sets of ideas and background assumptions that structure and limit public understandings about race and ethnicity. While some of these discourses may dominate a particular time or period, no one perspective is ever completely dominant. Brown believes that we are “capable of multiple comprehension” of a specific racial or ethnic issue or fact through these perspectives, although some may be more persuasive and therefore more limiting to our thinking than others (p.24).

The first discourse, “Traditional Americanism,” views blacks as “less than,” with non-Hispanic whites as the relevant norm. Blacks fail to meet the requisite norm because of a supposed inferiority. The decision in BROWN v. BOARD OF EDUCATION was founded in “Traditional Americanism” but substituted impoverished social environment as the explanation for the then prevailing physical or divine causes for their supposed inferiority.

The second discourse, “African-American Centralism,” rejects the view of blacks as inferior, seeing them as oppressed and seeking the liberation of African-Americans from this oppression. The irony, as Brown points out, is that the very thing that creates a distinctive African-American community, the concept of race that “unites blacks as a people,” has also been the historic source of their oppression (p.76).

The third discourse, “American Collectivism,” stresses the unity of Americans and their common interests. The objective is to preserve or attain the “best interest of the American collective,” primarily through the constantly changing but still unifying values of “liberty, equality, democracy [*723] and the pursuit of happiness” (p.23). Brown points out later that the protection of property is at the “heart of the Constitution” (p.43), yet he never explains why property rights are not part of the pantheon of unifying values.

The final discourse, “Colorblind Individualism,” ignores the group orientation of the other “discourses” by emphasizing the world as a collection of “Knowing Individuals,” who are able to make independent and self-interested choices so long as the choices do not unnecessarily hinder the free choices of others. The “advancement of individual self-determination” is its key social value (p.22). A modified form of this perspective (why so modified is never explained) is key to Brown’s understanding of Supreme Court decisions on race and ethnicity over the past thirty years. It would help if the author offered a detailed analysis of an iconic court case or statute that embodied each discourse’s impact on the thinking of judges and legislators.

Brown recognizes that America is fundamentally different than it was 50 years ago when the BROWN decision first commanded desegregation. Yet, as integration succeeded and school districts came in compliance with desegregation decrees, they were permitted to use race-blind student assignment policies such as neighborhood schools. Eventually, KEYES v. SCHOOL DISTRICT NO. 1 (1973), signaled a shift toward an individualist interpretation of the Fourteenth Amendment’s equal protection clause (p.28), an interpretation that, paradoxically, resulted in resegregation once courts ended their decrees (pp.7, 29). The equal rights of individuals replaced the advancement of the educational opportunities of black children, race-conscious means now forced to pass the harsh standard of strict scrutiny and the compelling state interest test. The “Post-Desegregation Era” is marked by court decisions that demand proof of an invidious motive, not simply an unequal effect, to government actions. The government is analogized to a “Knowing Individual” whose motivations determine whether its actions are constitutional (p.103). “Colorblind Individualism” had triumphed over “Traditional Americanism.”

The change in the background assumptions for interpreting the equal protection clause meant that the only way to significantly increase educational opportunities for black children is school choice, a racially neutral method that disproportionably aids minority children in poor and urban schools (p.11). School choice can take a variety of forms. Middle class parents have always had the power to choose the public or private school of their choice by voting with their feet or money. Current programs for government funded school choice empower lower class parents to choose schools for their children though charter schools or school vouchers,

Central to Brown’s analysis is his focus on African-American schoolchildren, whom he believes to have been the intended beneficiaries of BROWN. The rise of the “Post-Desegregation Era” denies the promise made to black children during the “Desegregation Era.” Chief Justice Warren might not have agreed. Federal courts ordered California’s public schools opened to Hispanic schoolchildren in 1947, half [*724] way through Warren’s three terms as governor. The language in that case, MENDEZ v. WESTMINISTER, foretells not only the logic but also some of the actual language of Warren’s opinion in BROWN seven years later. Moreover, Brown’s insistence that the “Post-Desegregation Era’s” attachment to a partial form of “Colorblind Individualism” is a departure from BROWN is contestable. Brown himself points out that BROWN v. BOARD OF EDUCATION is essentially a race-neutral interpretation of the equal protection clause. It was not until GREEN v. NEW KENT COUNTY (1968) that the Court compelled the use of racial classifications to overcome racial segregation (pp.27, 180). The “Colorblind Individualism” strand is as strong in BROWN as is the “Traditional Americanism” strand.

This oversight points to one of the major deficiencies of RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA. The book poses a crucial but unanswered question: why the shift from the “Desegregation Era” to the “Post-Desegregation Era”? Brown effectively lays out how the courts made the shift but never explains why the courts felt the need to make the shift. The end of de jure school segregation and its immediate effects may be one cause, as Brown implicitly suggests. But what of the shift in the political tone, values, and priorities of the time? Moreover, the BROWN case itself contained the seeds of the “Post-Desegregation” ethos. The book would be immeasurably stronger if only its author had tackled explicitly the political, moral, and policy causes of this decisive change in American judicial doctrine.

The strongest sections of the book are Chapters 1 through 4 where Brown explores the background assumptions, historical development, and limiting structures of the four discourses. The author’s richness of details, fresh interpretations of historical facts and trends make these chapters a powerful retelling of our nation’s twisted history. Brown does a fine job of explaining how each discourse “structures” public debates and understanding. He is less clear about how and why each discourse “limits” debate, other than the implicit assumption that, if a discourse does not explicitly discuss something, it is ignored.

Brown asserts that a multiple approach to understanding such phenomena is necessary because no single approach is ever the sole or only true understanding. He never tackles the 2,500 year tradition (discourse?) that teaches objective truth as a graspable reality. One may wonder whether the current post-modernist malaise has made this tradition passé or whether scholars fifty years from now will dismiss post-modernism as a fad. Nevertheless, we are left with three possibilities: that Brown is mistaken, and there is one discourse that is objectively true, although it may not be self-certifying; that another, relevant discourse has been overlooked or dismissed by Brown; or that two or more of these discourses, despite Brown’s assertion that they are incommensurate (p.319), are nonetheless more relevant or helpful than the others in grasping what is actually happening in race and ethnic relations. The book implicitly opts for the last possibility, relying primarily on the discourses of “Traditional Americanism” and “Colorblind Individualism.” [*725]

The book cries out for a good editor’s sharp eye and red pen. There are far too many redundant passages and endless repetitions of the same arguments and facts, both in the body and notes. A trope develops early in the book. Brown begins by telling the reader what he will argue or describe, then argues and describes, ending with a conclusion that repeats the arguments and description. All of this moves well beyond the limits of useful redundancy.

REFERENCES:
Anderson, Terry H. 2004. THE PURSUIT OF FAIRNESS: A HISTORY OF AFFIRMATIVE ACTION. Oxford and New York: Oxford University Press.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1954).

GREEN v. NEW KENT COUNTY SCHOOL, 391 U.S. 430 (1968).

KEYES v. SCHOOL DISTRICT NO. 1, 413 U.S. 189 (1973)

MENDEZ v. WESTMINISTER, 161 F. Supp. 544 (S.D. Cal 1946) aff’d in part sub nom WESTMINISTER SCH. DIST. v. MENDEZ, 161 F.2d 774 (1947).

© Copyright 2005 by the author, Timothy J. O’Neill.

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THE BIBLE IN THE PARK: FEDERAL DISTRICT COURTS, RELIGIOUS SPEECH, AND THE PUBLIC FORUM

by John Blakeman. Akron: University of Akron Press, 2005. 300pp. Cloth. $39.95. ISBN: 1-931968-13-6.

Reviewed by Steven B. Lichtman, Department of Political Science, University of Vermont. Email: steven.lichtman@uvm.edu .

pp.718-721

John Blakeman’s new book, THE BIBLE IN THE PARK, is nothing if not timely. In the two years leading up to its release, American courts prominently grappled with the question of whether representations of the Ten Commandments may be displayed in a variety of public settings. In arguably the most famous case, Roy Moore, Chief Justice of the Alabama Supreme Court, was ordered by a federal court to remove a 5,000-pound Ten Commandments monument he had arranged to be installed in his courthouse rotunda; Moore’s refusal to obey the court order eventually led to his removal on ethics charges in November of 2003. Then in June of 2005, the United States Supreme Court issued two seemingly contradictory rulings, declaring in McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY that two Kentucky counties had to remove Ten Commandments displays from their courthouses, but also declaring, in VAN ORDEN v. PERRY, that the state of Texas could keep a Ten Commandments display among the nearly 40 monuments arrayed on the grounds of the state capitol.

Each of these cases raised important issues about the role of religion in public life and the constitutional status of religious speech. While not unmindful of the “political” overtones of the currently-revived debate, Blakeman has set out to examine the subject from a different angle. The core questions he asks in THE BIBLE IN THE PARK are practical rather than doctrinal – covering federal district courts’ adjudication of religion-in-public lawsuits, and public policy implications of trial court actions in these kinds of cases. What makes THE BIBLE IN THE PARK so intriguing is that Blakeman thus takes a subject that is traditionally (and almost exclusively) understood within a narrow Supreme Court context, and instead presents it from the “bottom up.”

In structuring his project along this somewhat contrarian line, it is absolutely essential that Blakeman establish why district courts’ handling of religious speech cases is a worthwhile avenue of study. Blakeman is firmly in the camp of the exciting emerging scholarship on trial courts, in his insistence that the trial court phase is just as fertile a source of insight about judicial policymaking as the appellate stage. However, in selecting this particular subject matter, Blakeman confronts obstacles that other scholars of trial courts do not.

Unlike broad desegregation lawsuits or class action torts, which require differing levels of judicial management at the trial level, the cases Blakeman chooses to scrutinize are not terribly complicated proceedings. Furthermore, there are [*719] rarely factual disputes in public religious speech lawsuits; resolution invariably involves constitutional interpretation and not evidentiary determination. Consequently, it seems to be a matter of logic (and not merely a case of scholarly myopia) that the “important” phase for public religious speech cases is going to be at the appellate level, rather than the trial level. Put another way, it is difficult to imagine that some judge and court could be to Blakeman what Judge Jack Weinstein of New York’s Eastern District was to Peter Schuck (1987).

Laudably, Blakeman overcomes the structural hurdles native to his project and produces a sophisticated work with across-the-board appeal. Readers interested in the general significance of trial courts and litigation of the public policy will derive as much satisfaction from this book as will readers seeking additional insight on the rise to political prominence of evangelical Christians, who are advancing their agenda via litigation and electoral strategies alike.

Ironically, to make his arguments promoting the policymaking capability of lower courts, Blakeman is compelled to begin the book with a chapter devoted to Supreme Court jurisprudence. Because THE BIBLE IN THE PARK is more of a pragmatic exploration of the nature of a public forum than a philosophical meditation on freedom of religion, Blakeman must set up this exploration by laying out the ground rules lower courts must apply to public forums, ground rules that were established by the Supreme Court. Unfortunately, this chapter, tracking the development of the Supreme Court’s public forum jurisprudence, reads fitfully. Since a subtext of Blakeman’s project is an attempt to wean scholarship away from a Supreme Court obsession, it is understandable that this chapter is the book’s weakest moment.

Once Blakeman has dispensed with this scene-setting chore, however, THE BIBLE IN THE PARK morphs into a lively accounting of the multifaceted impact lower courts have on public forum policy. Blakeman parses the federal case data regarding religious speech in public forums in multiple ways: identity of the litigants (asking both whether the plaintiff is an individual or a group, and also whether the government defendant is federal, state, or local), sectarian affiliation of the religious speaker, purpose of the religious speech (e.g., prayer, solicitation of donations, evangelism), and the type of forum the speakers seek to access (e.g., park, airport, government building). What emerges is a richly detailed picture of the litigation trends. Perhaps unsurprisingly, Blakeman finds that the overwhelming majority of religious speech claims are brought by Christians, leading him to conclude that “arguably, the law on religious speech and public forums is developing in the context of one specific faith-based message” (p.127).

The implications of this particular finding are comprehensively explored when Blakeman expands his analysis of the type of forum utilized by religious speakers, because it is at this point that lower courts step into the process as central political actors. He reports that judicial policymaking on public religious speech predominantly occurs via the district court’s determination of the nature of the purportedly public forum. [*720] In one of his most interesting findings, Blakeman argues that even as it is difficult to locate public forum distinctions on a traditional liberal-conservative continuum, “partisan differences” do creep into the resolution of public religious speech cases (p.163). This is most clearly evident in Republican judges’ comparative unwillingness to declare public schools to be open to speech and expression (Republican judges do so in 66.7% of the cases, as opposed to 78.9% of such cases decided by Democrats, a statistically significant difference), even though almost all the schools are considered as designated public forums.

On the one hand, this finding supports a conventional understanding that Republican judges prefer to allow local school boards to regulate the educational process, instead of ordering them to submit to external authority. On the other hand, Blakeman’s data indicate that Democrats are more amenable to forcing schools to be open to this kind of expression, which leads to a surprising inference: “Democrats are implicitly suggesting that religious speech in public schools is perhaps allowable. Or, Democrats are at least lowering one threshold to protecting religious speech in public schools” (p.164)

One topic that is curiously absent from THE BIBLE IN THE PARK is the phenomenon of governmental religious speech in the public forum. Two of the case examples mentioned at the beginning of this review referenced Ten Commandments monuments installed by government officials. Given that Blakeman characterizes the question “Who litigates” as “fundamental” to analyzing district court policies towards religious speech (p.71), it would have added to the project’s explanatory value had he included of a study of cases in which litigants challenge religious speech that is either made by government or sponsored by government. He includes government religious speakers in his data – noting that government religious speech is responsible for only 2% of the cases (p.77) – but he does not devote any significant time to analyzing specific cases. Indeed, Ten Commandments monuments receive only a brief tangential mention late in the book. By contrast, the litigation strategies of the International Society for Krishna Consciousness (ISKCON), an early repeat player in these cases that has since faded from the field, garners several pages of discussion in several chapters.

Admittedly, a focus on government religious speakers would be an awkward fit within Blakeman’s main project, which is to understand how the entrepreneurially litigious behavior of religious speakers affects district court policymaking. Nevertheless, with their absence, the reader is left with a slight twinge of incompleteness.

Notwithstanding this one criticism, THE BIBLE IN THE PARK is a worthy addition to the literature on judicial policymaking, a highly readable volume appropriate for scholars and students alike. Blakeman has crafted an insightful and intellectually creative book that will provide readers with some genuine surprises.

REFERENCES:
Schuck, Peter H., 1987. AGENT ORANGE ON TRIAL. [*721] Cambridge, MA: Belknap Press of Harvard University Press.

CASE REFERENCES:
McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, 125 S.Ct. 2722 (2005).

VAN ORDEN v. PERRY, 125 S.Ct. 2854 (2005).

© Copyright 2005 by the author, Steven B. Lichtman.

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CRITICAL ISSUES IN RESTORATIVE JUSTICE

Howard Zehr and Barb Toews (eds). Devon, UK: Criminal Justice Press/Willan Publishing, 2004. 436pp. Paper. £21.24/$38.50 ISBN: 1-881798-51-8.

Reviewed by William T. Lyons, Jr., Department of Political Science, University of Akron. Email: wtlyons@uakron.edu .

pp.644-646

This edited volume is the product of a rather elaborate process of structured dialogues involving many practitioners across the globe. The editors, Howard Zehr and Barb Toews, developed a series of questions from these “palavers” and asked a wide variety of practitioners and scholars to briefly share their thoughts. The enforced brevity allowed for the inclusion of many different voices, a strength of the volume. It also prevented individual authors from fully developing their ideas, seriously weakening the scholarly appeal of the collection. The pieces are simply too short to explore meaningfully the critical issues raised, making the editors’ introductory essay (and introductions to each section) all the more critical. But the editors’ contributions were similarly truncated, leaving a collection that may have some limited value for practitioners new to the field who are just starting their examination of the issues, but I cannot recommend this to serious scholarly readers.

There are a few contributions (given their length, it would be inaccurate to call them essays or articles or even chapters) that stand out, in particular the paired pieces by McCold and Pavlich examining the complexities surrounding the role of community in restorative justice practice. On the whole, however, the great majority of the contributions are too thin, vastly under theorized in ways that beg more questions than they address, to warrant serious attention.

A second weakness of this collection is the absence of contributions examining the political and historical contexts from which restorative justice emerged. There is no treatment of concerns about access to the law that contributed to a wide variety of efforts to develop less formal approaches to conflict management, sometimes linked to courts and sometimes as an alternative to courts. There is no serious analysis of the due process or related problems that have often resulted from such experiments with informal justice. In place of this type of examination the collection is heavily weighted with short pieces that, in my view, confuse restorative justice with the victims’ rights movement. Although there is a section of contributions titled “Stakeholder Issues,” this section is almost entirely devoted to defending the proposition that restorative justice is, and ought to be, about removing the blindfold from lady liberty by ensuring a priority position at the table for the voice of victims.

Doing restorative justice is reduced to hearing from victims or, for some contributors, to developing a parallel justice system designed to overcome what they see as an offender-orientation in even existing restorative justice [*645] efforts by matching our investment in prosecuting offenders with a parallel investment in trauma recovery and assisting victims in rebuilding their lives. This skew toward victims’ rights is indirectly recognized by a contribution co-authored by one of the editors that very tentatively investigates whether or not restorative justice advocates (victims’ advocates from the perspective of this volume) have been adequately attentive to offender needs. This piece is structured as a series of questions for future consideration, rather than a serious examination of the degree to which a victim-focus might obscure seeing restorative justice as an effort to restore or repair the relationships constitutive of resilient communities. Instead, even this piece places efforts to attend to offender needs in opposition to ongoing efforts to give priority to victim needs, rather than as an opportunity to examine the ways restorative justice might be impacting relationships between disputants, and between both and the larger communities they inhabit.

Even in a contribution focusing on the relationship between restorative justice and offender treatment, the authors are adamant that “restorative justice practice must focus most attention on involving and meeting the needs of victims first and communities second” (p.119). Likely due to the lack of space, this claim is not defended in the text and it remains unclear (yet interesting), given the (far too terse) treatment of restorative justice as social contract earlier in the volume, why efforts to restore relationships must focus on victims first or communities second. This formulation denies the centrality, indeed the existence, of relationships to repair, at least any relationships that might include the offender. And it is certainly not a formulation with much connection to the social contract suggestions earlier or to forms of justice that restore relationships and the communities these relationships are embedded within.

A later contribution that might have contributed to remedying this weakness by building on Braithwaite’s distinction between reintegrative and disintegrative approaches to shaming, merely replicates this restorative justice as victims’ rights movement bias. They argue first that since the psychological evidence on shaming (a concept that makes ignoring the relationship to the offender much more difficult) is mixed and “likely to contribute to further reoffending” (p.139). Then they conclude that, while this might invite us to follow Braithwaite and be attentive to the impact (reintegrative or disintegrative) of restorative justice on offenders and relationships, the authors conclude the risk is too great. If we assume that restorative justice is about advancing the victims’ rights movement, then we might accept this at face value. But the mixed findings presented do not support the conclusion that shaming is likely to increase reoffending; instead, they support the conclusion that the relationship is mixed, contingent in ways that ought to make critically examining various contexts (such as those that might reintegrate versus those that might stigmatize) a key element in improving restorative justice.

On the whole, for the reasons identified, this collection is unlikely to satisfy students or scholars interested in a serious examination of the critical issues central to restorative justice. For readers interested in a far superior edited collection on this topic, I refer you to the [*646] collection titled, A RESTORATIVE JUSTICE READER.

REFERENCE:
Johnstone, Gerry (ed). 2003. A RESTORATIVE JUSTICE READER: TEXTS, SOURCES, AND CONTEXT. Devon, UK: Willan Publishing.

© Copyright 2005 by the author, William T. Lyons, Jr.

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REGULATING PROCUREMENT: UNDERSTANDING THE ENDS AND MEANS OF PUBLIC PROCURMENT REGULATION

by Peter Trepte. Oxford: Oxford University Press, 2004. 428pp. Hardback. £65.00 / $135.00. ISBN: 0-19-826775-4.

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

pp.641-643

Several years ago I regularly drove back and forth on a certain stretch of a state highway on Long Island, New York. Every June, without fail, a section of road was repaved, regardless of the actual condition of the highway. The construction inevitably resulted in a lot of oaths from the drivers and significant road delays, preventing me and all the other motorists using the road from reaching our destinations in time. While this inconvenienced drivers, the repaving work was undoubtedly a lucrative contract for the company. Each year I wondered what exactly the contractor had done to be rewarded with such a lucrative annual stipend. Stuck in traffic, I assumed there was some order and regulation in the awarding of government contracts, and wondered if the contract was procured according to the correct set of rules.

I thought of this while reading REGULATING PROCUREMENT by Peter Trepte. The book does not purport to tell us how we regulate, or the precise reasons the above mentioned paving company received the contract, but instead seeks to understand why we control government procurement, or purchase. Trepte clarifies the reasons why we regulate “the act of a public body purchasing or acquiring goods, works and services from the marketplace”(p.9). It is more than just the avoidance of corruption, or the appearance of impropriety. Ultimately regulation of government contracts serves the goals and objectives of the government. The manuscript serves a dual purpose of providing a theoretical basis for such regulation and a primer on basic terms and ideas of political economy. It is both an empirical examination of the need for regulation, and through the empirical assessment, a normative argument for the use of appropriate parameters by the state.

The book is extremely well organized. It is divided into seven chapters, which are then further subdivided into sections and subsections. This makes the logic of the argument and the subsequent evidence easy to follow. Of course, most governments seek to prevent corruption in the awarding of government contracts, but Trepte argues that there is no single appropriate objective, nor any one appropriate model such as economic efficiency, the realization of socially desirable goals or the achievement of international aims. The appropriate regulation depends on the goals of the state or nation, and the model or models chosen should be those that most likely will lead to these goals.

In the introduction, the author defines his key terms and concerns and lays out the basis of the ensuing chapters. He [*642] defines regulation as the “measures or instruments employed by the state to promote its economic and social policies” (p.45), and then proceeds to review the central concepts of the need for regulation, and procurement regulation, due to various market failures such as the existence of monopolies and information asymmetries. Trepte also outlines the various enforcement mechanisms available to governments, from direct supervision to administrative review, independent agencies and finally judicial review.

The next three chapters are the core of the book. In these chapters the author introduces three different models of procurement regulation: economic, political and international. Each model is not meant to be exclusive. Instead most governments use variations and mixtures of each model to achieve their objectives and goals. The last two substantive chapters, five and six, illustrate procurement regulation in domestic and international situations. The author assesses variations of these three interacting models through examinations of domestic and international regulatory systems.

Chapter Two, entitled “Government as Purchaser,” outlines the economic model. Government procurement is done within the boundaries of a market economy. Thus, the primary purpose of regulation of government procurement is the same as regulation of other economic activity: to ensure allocative efficiency, which the author defines as a Pareto optimal outcome. Most of the arguments presented in this chapter will be familiar to students of political economy or regulation. That is, procurement regulation is necessary to control wayward agents, prevent interest group capture, solve information problems and reduce transaction costs. In short, the economic model seeks to ensure competitiveness in the bidding and awarding of public procurement contracts.

Although allocative efficiency is the primary reason for regulation, in Chapter Three, “The Government as Body Politic,” the author adds a second model recognizing political matters. Governments have to take into account normative goals and concerns in the regulation of procurement contracts. These considerations, of course, will impact allocative efficiency, in the sense that, the author argues, there are many Pareto efficient outcomes, and it is the role of government, through the regulation of procurement, to decide which Pareto outcome is preferable, or to choose a non Pareto outcome if these other goals and considerations are deemed more important. What are these considerations? Trepte calls them strategic policies, protective policies and proactive policies. In the most general sense they are promoting the economic and social welfare of the citizens. More specifically, they could be such things as promoting racial, ethnic or gender diversity in the workplace, supporting minority economic enterprises, or aiding certain industries or enterprises. The government, as perhaps the dominant purchaser in the state, can use regulation of procurement to support these goals.

The final model, presented in Chapter Four, is entitled “The Government as an International Actor.” Here the author deals with problems presented by a global economy. There is potential conflict and tension between free trade [*643] and national interests. Governments seek a comparative advantage, and national security is always a concern. Thus government procurement will use such things as price preferencing, quantitative restrictions, regional trade groups, technical specifications and standards, subsidies and even dumping to maximize national interests, and gain a comparative advantage.

Chapters Five and Six present extended examples, using domestic and international regulation to demonstrate the use of the models developed in Chapters Two, Three and Four. Trepte does not intend this discussion to mean that there is any one definitive model of procurement regulation, but instead a demonstration of how various considerations can lead to certain types of purchasing regulation. Here he examines such things as the personnel overseeing recruitment, procedures that are used, such as open, competitive or closed bidding, and qualifications needed for the award of contracts. The final substantive chapter examines procurement regulation of the European Community and the World Trade Organization.

So what model, or parts of models were used in the awarding of the paving contract? Was the primary goal allocative efficiency alone, or did it represent a combination with some other goals? Was the process open and competitive, or closed? I do not know, but Trepte’s book provides a way to analyze, examine and understand the process.

Of course examining these questions relate more to issues of politics and economics than to questions of judicial behavior and courts. Thus, the book will be of most interest to political scientists, graduate students and law professors who study and research issues of political economy, public policy and administrative law, and those who study the intersection of law, courts, public policy and political economy. I suspect that the book will be of little use to those who study more traditional areas of constitutional jurisprudence or various aspects of judicial behavior. That does not detract from its worth or value, but the book will be of much greater use in a graduate class in Political Economy or Regulation than one of Judicial Process or Constitutional theory.

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

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LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE

by Cass R. Sunstein. New York: Cambridge University Press, 2005. 246pp. Hardback. £40.00/$65.00. ISBN: 0521848237. Paperback. £15.99/$23.00. ISBN: 0521615127.

Reviewed by Sanford Levinson, W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School; Professor, Department of Government, University of Texas. Email: SLevinson@law.utexas.edu .

pp.635-640

LAWS OF FEAR is an expanded version of the John Robert Seeley Lectures that University of Chicago Law Professor Cass Sunstein delivered at Cambridge University in March 2004. The back jacket indicates that the Seeley Lectures are designed to offer a forum “for distinguished scholars of international reputation to address, in an accessible manner, themes of broad and topical interest in social and political studies.” Sunstein amply qualifies as such a scholar—he is the most frequently-cited law professor in the United States (and, therefore, probably the world)—and, perhaps more to the point, he triumphantly meets the goal of providing an “accessible” discussion of a topic that is truly of “broad and topical interest.”

Sunstein’s aim is not only to discuss, but also basically to eviscerate, the so-called “precautionary principle” (hereafter “PP”), an idea that is being applied to many different realms of public policy, though it seems to have some special force in many arguments concerning environmental policy. Sunstein offers no single canonical definition of the principle, but “the animating idea is that regulators should take steps to protect against potential harms, even if causal chains are unclear and even if we do not know that those harms will come to fruition” (p.4). Sometimes the PP will take the form of “shoot first and ask questions later,” as with the Bush Administration’s original justification for the Iraq war, which Sunstein mentions several times throughout the book. More often, perhaps, the PP is used to justify governmental inaction, as when environmentalists protest against certain policies on the grounds that they risk causing harm X, and that it is better to maintain the status quo than to take that risk. Similar arguments, of course, can be made with the introduction of certain, presumptively insufficiently tested, drugs into the medical community, the use of genetically modified food, and, indeed, an almost infinite number of examples. Most of Sunstein’s examples, and his central arguments, focus on what might be termed the “status quo bias” in the PP, rather than the kind of preventive action taken in Iraq, but both can be derived from the PP.

Chapter One is a brief history and analytic overview of the PP. As already noted, there is no canonical definition, not least because “[t]here are twenty or more definitions, and they are not compatible with one another” (p.18). There are “strong” and “weak” versions. “The most cautious and weak versions suggest, quite sensibly, that lack of decisive evidence of harm should not be a ground for refusing to regulate” (id.). [*636] As he suggests, it is hard to disagree with any such “principle,” particularly if one places the word “conclusive” before “ground” in the quoted sentence. Needless to say, there would be no need to write a book if all of the definitions were this “weak.” Stronger definitions abound, including one assertion that the PP “mandates that when there is a risk of significant health or environmental damage to others or to future generations, and when there is scientific uncertainty as to the nature of that damage or the likelihood of the risk, then decisions should be made so as to prevent such activities from being conducted unless and until scientific evidence shows that the damage will not occur” (p.19, quoting Testimony of Dr. Brent Blackwelder, President, Friends of the Earth, before the Senate Appropriations Committee, Subcommittee on Labor, Health and Human Services, Jan. 24, 2002). What is interesting about this version of the PP is that it seems to establish either an extraordinary tilt in favor of the status quo, if the perception of any significant risk precludes action until “scientific evidence shows that the damage will not occur”—think of the debate over genetically modified food, for example—or an equally significant tilt in favor of wide-ranging, possibly highly disruptive, action. I have already mentioned Iraq, but consider also what is perhaps Sunstein’s most frequent example, the debate over global warming, where fears of potential catastrophe are used to justify drastic action unless “scientific evidence shows that the damage will not occur.” The point is that a “strong” PP seems almost inevitably to result in extreme recommendations, whether of inaction (or endless study, which may be the same thing) or precipitous action.

As noted earlier, Sunstein comes not to praise the PP but in effect to bury it, and he begins by emphasizing its ultimate incoherence, precisely because it can lead, depending on how one phrases the problem, at once to paralyzing bias in favor of the status quo or endorsement of the most wide-ranging action, each in the name of taking “precautions” against risks. “The real problem is that the principle offers no guidance—not that it is wrong, but that [under some circumstances] it forbids all courses of action, including regulation. It bans the very steps that it requires” (p.26). All policies generate risks, and if one focuses only on worst case possibilities, as the PP often leads its proponents to do, then either nothing can be done (because, e.g., the introduction of antibiotics might generate new forms of viruses that will kill us all) or there are no limits (if Sadaam Hussein might get the atomic bomb, then we must move immediately to foreclose that risk), and so on. In any event, “the central problem” of the PP “is that precautions against some risk almost always create other risks” (p.53).

Chapter Two, “Behind the Precautionary Principle,” begins Sunstein’s fascinating overview of materials from cognitive psychology and behavioral economics regarding the perception of risks. He addresses such phenomena as

1) “the availability heuristic,” which leads us to overestimate considerably the probability of certain risks precisely because they cognitively become “available” to us. A current example is the almost undoubtedly exaggerated risk [*637] of being injured in a terrorist incident, even if one lives in New York, Madrid, London, or any other world capital;

2) “probability neglect,” which leads to a focus on “worst cases”;

3) “loss aversion,” which simply means that people tend to be more concerned about losses from the status quo than potential gains in the future;

4) “a belief in the benevolence of nature, making man-made decisions and processes seem especially suspect” as against relying on an uninterfered-with nature to be kind to us human beings; and, finally

5) “system neglect, understood as an inability to see that risks are part of systems, and that interventions into those systems can create risks of their own” (p.35).

Chapter Three is an especially vigorous (and often vivid) critique of the extent to which public policy mavens, especially when trying to whip up public support (and donations) for their favorite causes, rely on “worst-case scenarios.” Not only does such reliance manifest some of the cognitive biases treated in Chapter Two, but it also reflects the way in which emotions, particularly fear, can overcome what we like to think of as our rational faculties. This chapter should particularly interest students of political rhetoric (including, for lawyers, the particular rhetoric found in legal briefs and judicial opinions). “Emotional reactions to risk, and probability neglect,” account for what he calls “alarmist bias” (p.82), examples of which should readily occur to any reader of any political persuasion.

This chapter introduces a central sub-text of the book, which is the degree to which societies should rely, relatively speaking, on “expert” or “democratic” decisionmaking by “ordinary people” (p.86). Thus Chapter Four, “Fear as Wildfire,” details the ways that what might be termed “cultures of fear” develop in society. Here he discusses informational “cascades” (pp.94ff), “group polarizations” (pp.98ff), and the way that “media, interest groups and politicians” (p.102) use their own skills to play on popular “predispositions” (p.104) and create perceptions that may be almost wildly different from what more sober experts would suggest. Although Sunstein resists the suggestion that he is endorsing “the virtues of rule by a technocratic elite” (p.106), there is little doubt that the book is tilted in favor of the relatively unemotional, statistically-sophisticated expert against the more “ordinary” citizen who is more susceptible to all of the decisionmaking pathologies that he tellingly identifies.

This book fits within Sunstein’s long-demonstrated commitment to furthering the conditions suitable to a more “deliberative democracy.” Although, as a democrat, Sunstein does indeed believe that it is ultimately up to the people in general to resolve value conflicts within the social order, he clearly wants to encourage a greater willingness to look to experts for the factual information relevant to making the sophisticated factual judgments that are necessary to any cogent process of public policy formation.

The first four chapters constitute the critical analysis of the PP. Part II of the book is titled “Solutions.” Chapter Five, “Reconstructing the Precautionary [*638] Principle—and Managing Fear,” emphasizes the importance of identifying the “full universe of relevant risks” (p.122), although, of course, this notion is in tension with his earlier argument that everyone is subject to the biases revealed by cognitive psychology. It is also fair, I believe, to note that if one is at all attracted to chaos theory and “butterfly effects,” then it becomes a combination of utopian and bizarre to suggest that we can ever hope truly to be aware of every risk attached to any particular proposal. One is almost always—the “almost” is really an academic fudge—making important decisions under conditions of uncertainty, as Sunstein well recognizes.

Chapter Six, “Costs and Benefits,” offers a fascinating overview of how one assesses the social costs (and gains) of policies. Although some readers may already be familiar with discussions of creating a “uniform value for a statistical life (VSL)” (p.132), I learned an immense amount from this chapter, and I suspect that I will not be alone among its readers. This chapter, together with the next one, “Democracy, Rights, and Distribution,” would make an especially wonderful assignment to a seminar of sophisticated undergraduate and graduate students inasmuch as it argues that VSL analyses must be context specific and not assume that all lives in all cultures and contexts are to be given the same economic value. Sunstein does not mean to suggest that “people in poor countries are ‘worth less’ than people elsewhere,” but he does strongly argue that “VSL properly varies across nations” and that, inevitably, “citizens of poor nations have a lower VSL than citizens of wealthy ones” (p.165).

Given that Sunstein is widely recognized as a political liberal, it is especially interesting that he is highly critical of those who would necessarily impose public policies that make sense in rich societies on poor ones. Thus he discusses throughout the book the implications of focusing on “willingness to pay” as a mode of analyzing public policy in discrete instances. For example, most people reading this review would be willing to pay far more to insure against a certain risk—say a guaranteed 2% diminution in the probability of dying a painful death from cancer—than would someone living in, say, Haiti, Bolivia, or Chad, for whom even $100, let alone $1000, might well be an immense amount. To impose such a cost on persons in these latter countries, perhaps through international protocols, would have the practical effect, of course, of making it far harder for them to spend the same amount, say, on malaria pills or other medicines, to stay within the area of health concerns, though obviously health itself competes with other realms. Like many economics-oriented liberals, Sunstein believes that succor to the poor is probably accomplished best by direct redistributions of income rather than “enlightened” public policies that may in fact work to the detriment of those ostensibly to be benefited by them.

Similarly, Sunstein offers some reservations about the Kyoto Protocols, which in significant ways reflect the PP. “International action should indeed be taken on global warming, but aggressive technology-forcing, by the United States alone, is not simple to justify. It would be far better to start with cautious agreements that would build toward more aggressive reductions as [*639] technologies advance” (p.173). For some of us, such arguments have greater impact coming from Sunstein than if they were in books written by some of his Chicago colleagues who could more easily be predicted to valorize the free market and disdain ambitious governmental programs.

Chapter 8, co-authored with Richard Thaler, is on “Libertarian Paternalism,” in which the authors suggest that it does not violate libertarian, pro-choice, principles to structure certain decision-making processes in ways that will predictably lead the decisionmakers to choose outcomes that the (presumably expert) designers believe are in fact in the best interests of the decisionmakers. The chapter has extremely interesting consequences for designing pension systems, in which one will get different results depending on the default rules—e.g., X% of one’s salary will be automatically deferred unless one opts out as against a requirement that one actually “choose” to have the X% deferred. If one believes that it would be good both for society and individuals to have a higher savings rate, then they see no problem in adopting the first default rule. Their discussion includes an amusing, but insightful, discussion (pp.178ff) of the principles of cafeteria design, in which the order of presenting food choices influences the decisions of the consumers. If one wishes to encourage the eating of salads and the relative under-consumption of desserts, it is a wonderful idea to put salads at the beginning of the line. They note that it is next to impossible to design a cafeteria along what might be viewed as a maximalist libertarianism that would present all food choices at the same time, as it were, to the person going through the line. The order of food must be consciously chosen by the cafeteria director, with predictable consequences for the subsequent choices of the customers. The same is true for many other areas of public policy.

A final chapter, “Fear and Liberty,” looks especially at some contemporary debates about how much civil liberty must be sacrificed in order to meet various threats identified with the “global war on terror.” He offers three central principles, especially for courts reviewing national security legislation. “The first and most important is that restrictions on civil liberties should not be permitted unless they have unambiguous legislative authorization.” Second, “in order to protect against unjustified responses to fear,” which, of course, may be the result not only of the “availability heuristic” but also of demagogic politics, “courts should be relatively more skeptical of intrusions on liberty that are not general,” which by definition means that they “burden [only] identifiable groups,” who are, of course, likely to be unpopular minorities. Finally, “constitutional principles should reflect second-order balancing, producing rules and presumptions, rather than ad hoc balancing” (p.211, emphasis in original).

Sunstein draws on some of his previously published material, but this version is an outstanding introduction that should find ready use in the classroom even if we are already familiar, for example, with the important (indeed, Nobel Prize-winning) work of Amos Tversky, Daniel Kahneman, and Paul Slovic (1982), probably the most frequently cited single source. Perhaps I should note that I scarcely consider [*640] myself an expert on many of the matters about which Sunstein writes, especially cognitive psychology and behavioral economics, both of which play significant roles in his argument, so perhaps my enthusiasm for the book should be discounted to some degree. What I can say with complete confidence, though, is that I learned an immense amount, and I have no doubt that other non-expert readers will be equally glad to have read it (and to assign it to their students). I would relish the opportunity to teach a seminar that would include LAWS OF FEAR together with Richard Posner’s recent CATASTROPHE: RISK AND RESPONSE (2004), and, particularly with regard to Sunstein’s final chapter, Frederick Schauer’s PROFILES, PROBABILITIES, AND STEREOTYPES (2003). All of them are joined in a common project of hoping to inject greater degrees of evidence-based rationality into discussions that all too often descend into hysterical fear-mongering. Occasionally the sky may be falling—Sunstein has some interesting comments about responding to truly “catastrophic” possibilities of the kind raised by Posner—but most often it is not. In any event, it would be a victory for sound policy-making if more discussants in the public debates approached the issues with more of a Sunsteinian sensibility.

REFERENCES:
Kahneman, Daniel, Paul Slovic, and Amos Tversky (eds). 1982. JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES. London: Cambridge University Press.

Posner, Richard A. 2004. CATASTROPHE: RISK AND RESPONSE. New York; Oxford University Press.

Schauer, Frederick. 2003. PROFILES, PROBABILITIES, AND STEREOTYPES. Cambridge, Mass.: Belknap Press of Harvard University Press.

© Copyright 2005 by the author, Sanford Levinson.

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RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE

by Wojciech Sadurski. Dordrecht, The Netherlands: Kluwer Academic Publishers, 2005. 377pp. Hardcover. $199.00 / €150,00 / £104.00. ISBN: 1-4020-3006-1.

Reviewed by Lynn M. Maurer, Department of Political Science, Southern Illinois University Edwardsville. Email: lmaurer@siue.edu

pp.632-634

RIGHTS BEFORE COURTS is a well written account of the constitutional courts in Central Eastern Europe. It is a comprehensive and comparative review of the constitutional courts that have developed in these new democracies. One of the objectives of this review is to describe how the work will be seen “in light of the methodologies and approaches to the scholarly analysis or teaching of law and courts as applied by political scientists.” The approach and methodology are appropriate for Wojciech Sadurski’s area of expertise, European legal and moral theory. The typical political scientist would couch the study in theory, as does Sadurski. A comparativist or other political scientist studying the role of this institution would stress data collection more than Sadurski does; this would include a section describing the interviews carried out with justices (if indeed they were) and the texts or opinions examined as data. Last, his explanations and comments occasionally verge into normative theory more than would be permissible in our field. (While I may wish to call a case “bizarre” or a “fiasco,” accepted rules of social science keep me from doing so). Nonetheless, it is certainly an informative and comprehensive account and the political scientist that specializes in Central Eastern Europe will certainly be rewarded by a reading of this book. It is current (which is most important in the development of institutions that spans little more than a decade). It is rich with case studies that show various approaches to individual rights taken by the constitutional courts of these states. It illustrates malleable institutional relations exclusive to democratizing countries. In these cases, opportunities present themselves for the legislative, executive, and judicial branches to exert their influence over each other. Sadurski’s expertise in constitutionalism is evident, as he explores constitution building and theory on the one hand, and institutional relations and power put into practice on the other. He also displays acute awareness of the consequences of these actions and decisions on the individual citizens.

Sadurski considers the effects of the past communist regimes (and ideology) on the constitutions and constitutional courts of the current CEE countries. This is evident in areas such as socio-economic rights (which most countries felt they could not ignore in their current democracies, yet are not given as much weight as rights such as equality.) As a comparativist, I would like to see the current regime type (degree of democracy or authoritarianism) taken more into account; certainly, the Court in Belarus’ authoritarian regime has been ignored by the executive in a way [*633] that would never be acceptable in a democratic country. That is to say, the strong rule of law in Poland or the Czech Republic would restrict their courts from acting in a comparable manner. However, a comparison of regime types and their relation to the courts may not have been Sadurski’s goal, and certainly his project is already sufficiently ambitious (in the good sense) to have provided him with quite a task in researching and writing this book. Last, Sadurski has a good sense of the social and political cultural situation in each country and weaves the role of – for example, the Catholic Church, or the influence of a certain political party – into his explanations of the actions of the Constitutional Courts.

The Central Eastern European countries Sadurski includes in his study are Poland, Hungary, Czech Republic, Slovakia, Romania, Bulgaria, Slovenia, Croatia, Serbia-Montenegro, Macedonia, Bosnia, Albania, Latvia, Lithuania, Estonia, Russia, Belarus, Ukraine, and Moldova. He excludes the other post-soviet states that are not regionally “Central Eastern Europe,” Azerbaijan, Armenia, and the five Central Asian states. This is wise given that the later are much less (or not at all) democratic than the majority of the countries discussed, and thus, less comparable. Examples are given from all of the states studied, though the book focuses most heavily on Poland and Hungary.

The book is divided into two sections. The first examines the degree of legitimacy of the courts, as well as other basic trends in their development. In Chapter 1, Sadurski explores the type of review established by the courts, which in most of the countries is ex-post review (of laws already passed). His discussion of the tenure and selection of judges reveals the political consequences of life tenure versus limited terms, possible reelection or reappointment, and the manner of their selection. Chapter 2 reveals that the courts do not have trouble with legitimacy; however, their establishment vis-a-vis the other institutions – particularly parliament – has been challenged at times. All the CEE countries have opted for a “European model of abstract judicial review” which he traces to the “fundamental values underlying the model of review” rather than the geographic location (Europe). Also in this chapter, Sadurski mentions that although the courts are often considered a defense for the minority against majoritarian tyranny, in practice there have been very few decisions made on the part of ethnic minority rights and even less, in defense of minority religions. In Chapter 3, an examination of the review practiced by the courts shows that they have established their finality in the review process but –according to Sadurski – their power relations with the other institutions is far from established. Chapter 4 shows the courts as major actors in the law-making process and even “activist” among the courts of Poland, Hungary, Czech Republic, and Slovenia.

In Part II, the author attains his goal which is to give a descriptive overview of basic rights as interpreted by the CEE courts. He begins with a chapter devoted to the role of judicial review in the protection of citizen rights (Chapter 5). He explores a typology or “score card” of “rights-enhancing decisions” versus “rights-weakening decisions” through invalidation of or upholding the [*634] legislation. Chapters 6 through 8 explore three areas of individual rights: Personal, Civil and Political Rights and Liberties (Chapter 6), Socio-Economic Rights (Chapter 7), and Equality and Minority Rights (Chapter 8). These chapters are most informative. In each aspect of the rights under question, the author begins with a theoretical consideration and then clearly gives examples of cases in which one or more CEE courts have dealt with the issue. Whenever possible, he summarizes for each right the approaches taken by all constitutional courts in the CEE countries examined. Some types of individual rights have not been dealt with much as of yet. Sadurski’s strength as a scholar is his understanding of constitutions and democratic transitions and his ability to relate them to the judicial decisions made by the constitutional courts. His knowledge of the movements and trends within the countries make us aware that judicial decisions are not made in a vacuum; this author seems particularly perceptive of both the environment in which decisions are made and the impact they will have upon society and the political system. Although he sets out to make these descriptive chapters, his knowledge of the courts would lend itself easily to a more rigorous empirical examination (by empirical I do not mean statistical), and I suspect Sadurski would be successful at such an endeavor were he to undertake it.

Chapter 9 deals with a topic so important that it could also be placed among the beginning introductory chapters. Entitled “Decommunization, Lustration, and Constitutional Continuity,” this chapter describes the degree to which each country has dealt with the communist leaders and deeds of the past. They range from the Czech Republic’s harsh approach (banning a wide range of persons from public posts) to the most lenient models of Poland, Hungary, and Bulgaria. Sadurski again displays his understanding of the effect of one regime type on the following regime.

After exploring Restrictions of Rights, Sadurski concludes by pondering the role of the CEE constitutional courts and of such courts in general. I had hoped for a summary of the information he had presented throughout the book, particularly in Chapters 6 through 9. Instead, he opts for a discussion of two themes presented earlier, legitimacy of the courts and the protection of rights. He refers to his “score card” of Chapter 5 to draw conclusions. As he maintains in his conclusions, constitutional courts in post-communist transitional (or newly-consolidated) states should be subjected to the same scrutiny as in established democratic states. Sadurski has done so here in addressing the vast question of the role of the constitutional courts in the CEE post-communist countries.

© Copyright 2005 by the author, Lynn M. Maurer.

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RELIGION ON TRIAL: HOW THE SUPREME COURT TRENDS THREATEN FREEDOM OF CONSCIENCE IN AMERICA

by Phillip E. Hammond, David W. Machacek, and Eric Michael Mazur. Walnut Creek, California: AltraMira Press, 2004. 160pp. Paper. $19.95. ISBN: 0-7591-0601-0. Cloth. $65.00. ISBN: 0-7591-0600-2.

Reviewed by Mark C. Modak-Truran, Mississippi College School of Law. Email: mmodak@mc.edu .

pp.626-631

The thesis of RELIGION ON TRIAL “is (1) that the First Amendment protects the freedom of conscience—broadly understood as the ‘moral powers of rationality and reasonableness in terms of which persons define personal and ethical meaning in living’ (Richards 1999: 86)—and (2) that therefore Supreme Court decisions that further restrict government sponsorship of religion and decisions that expand the free exercise of religion are consistent with the meaning and intent of the First Amendment” (p.19). To support this thesis, Phillip E. Hammond, David W. Machacek, and Eric Michael Mazur (the “Authors”) rely primarily on an historical argument with three parts. The first part argues that the “original intent” of the Framers with respect to the First Amendment “was to set in motion a process of expanding liberty” (p.36). The second part chronicles the expansion of protection for the free exercise of religion to “refer not just to religion in the traditional sense but to conscience” (p.101), and provides three case studies showing how this “trend toward expanded liberty of conscience has led logically to greater moral autonomy for individuals and further restrictions on government’s ability to regulate” abortion, euthanasia, and homosexual rights (p.111). Finally, the third part maintains that the current understanding of the religion clauses of the First Amendment by today’s “regressive justices does not reflect the thinking or intentions of the eighteenth-century Framers of the Constitution and Bill of Rights but rather reflects an understanding of church and state that emerged in the nineteenth century” (pp.xviii-xix).

Chapter One does a good job of summarizing the debates among the Framers of the U.S. Constitution regarding the relationship between the federal government’s powers, civil rights, and fundamental freedoms. The Authors stress that the U.S. Constitution should be understood as reflecting both a social contract theory and a natural rights theory. The specifications of federal powers in the Constitution and certain civil rights in the Bill of Rights (e.g., right to petition government for redress of grievances) reflect a social contract theory and are subject to periodic renegotiation by the people. The freedoms specified in the Bill of Rights, like freedom of religion and speech, however, should be understood as “rights of the highest order, which are thought to be inherent in human nature, inalienable, therefore non-negotiable, and thus beyond the reach of legislation” (p.11). The Authors’ emphasis on the original understanding of religious freedom as a natural right provides a helpful corrective to the current Supreme [*627] Court’s astonishing derogation of the free exercise of religion to legislative enactments that are neutral and generally applicable in EMPLOYMENT DIVISION v. SMITH (1990).

In Chapter Two, the Authors attempt to discern the content of the natural right of religious freedom by drawing on the “considerable body of commentary on the subject of religious liberty and the freedom of conscience” left by “the Framers of the U.S. Constitution” (p.20). The Authors’ claim that the “Virginia Declaration of Rights,” Madison’s “Memorial and Remonstrance,” and Jefferson’s “Bill for Establishing Religious Freedom” “formed the philosophical basis of First Amendment to the U.S. Constitution” (p.29). In particular, Madison’s “Memorial and Remonstrance,” which argues against state support for clergy in Virginia, and his other writings are relied on to discern the essence of the Framers’ intent. From these materials, the Authors’ conclude that the Framers’ intended “to set in motion a process of expanding liberty” (p.36). Moreover, the freedom of conscience “is not merely another way of talking about the ‘freedom of religion,’ as ‘religion’ is conventionally understood,” but it “is the source from which the freedoms of religion, speech, the press, and association are derived” (p.39).

The Authors argue that this understanding of the Framers’ intent became apparent in the Supreme Court’s jurisprudence regarding the expansion of religious liberty (Chapter Five) and the expansion of liberty in the areas of abortion, euthanasia, and homosexual rights (Chapter Six). The Supreme Court’s decisions expand the protection under the free exercise clause from only protecting religious beliefs (e.g., REYNOLDS v. U.S. (1878)) to also protecting religiously motivated actions (e.g., SHERBERT v. VERNER (1963)). As with other fundamental rights, SHERBERT prohibits the government from imposing a substantial burden on the free exercise of religion unless the government demonstrates that the law in question was narrowly tailored to achieve a compelling governmental interest (i.e., strict scrutiny). The Authors further maintain that the protection of religion was expanded so that deeply and sincerely held beliefs that function like traditional religious beliefs were also considered protected by the free exercise clause. They characterize this as a shift from the freedom of religion to the freedom of conscience. Moreover, “[t]he more sensitive the state becomes in protecting conscience,” the Authors argue, “the more likely it is to uncover heretofore unacknowledged ‘established’ religion . . . in violation of the Establishment Clause” (p.102).

Identifying this broader understanding of religion enables the Authors to see the often missed connection between free exercise of religion and the Supreme Court’s interpretation of the concept of liberty in the Due Process Clause of the Fourteenth Amendment. The Authors claim that “[t]he trend toward expanded liberty of conscience has led logically to greater moral autonomy for individuals and further restrictions on the government’s ability to regulate such behaviors” (p.111). For example, in the abortion context, “whether or not life begins at conception is necessarily a conscience issue” (p.114). Thus, the Authors agree with Ronald Dworkin that [*628] “‘freedom of choice about abortion is a necessary implication of the religious freedom guaranteed by the First Amendment’” (p.115) (quoting Dworkin 1993, at 26), and claim that this logic can be extended to cover issues like euthanasia and homosexual marriage under the Due Process Clause.

This expansion of liberty, however, has been slowed down or reversed by “the massive shift from the liberal 1932-1968 period to the conservative 1980-present period,” which reflects a regressive nineteenth-century Republican Protestantism rather than the progressive liberalism of the founders (p.133). In Chapter Three, the Authors note that Justice Story, the preeminent representative of the nineteenth-century Republican Protestantism, claimed that the First Amendment “was designed ‘to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment’” (p.56) (quoting Story [1833] 1970), which resulted in an “unofficial establishment of Christianity” (p.56). Even though Story’s nonpreferentialist interpretation of the First Amendment was before the Free Exercise (CANTWELL v. CONNECTICUT (1940)) and Establishment Clauses (EVERSON v. BD. OF EDUCATION (1947) were incorporated and applied to the states through the Due Process Clause of the Fourteenth Amendment, the Authors argue in Chapter Seven that this nonpreferentialist view of the First Amendment has been adopted by many of the Justices on the Supreme Court and has resulted in a regression or contraction of the separation of church and state. To support their argument, the Authors analyze each Supreme Court Justice’s votes in church-state cases since 1960. (See Appendix 2, pp.163-164). They give the Justices points (which are translated into percentages) if the Justices have voted for Free Exercise Clause exemptions or for Establishment Clause violations. Justice William O. Douglas (100%) is rated the most separationist while Justice Clarence Thomas (0%) is rated the least separationist. Those Justices who have voted strongly antiseparationist are referred to as “regressive” while those who have voted strongly separationists are referred to as “progressives.” “As a rule, the regressive bloc of three (Rehnquist, Scalia, Thomas) were on the winning or losing side against a progressive bloc of four (Stevens, Souter, Ginsburg, Breyer), the outcomes thus depending upon how two ‘swing’ justices (O’Connor, Kennedy) voted” (p.136). Although the regressive bloc claims to follow the Framer’s “original intent,” the Authors argue that the regressive bloc have wrongly substituted a judicial philosophy of majority rule and narrow textual reading of the Constitution for the Framer’s progressive judicial philosophy embracing the natural right to freedom of conscience that was intended to lead to an expansion of liberty over time (pp.145-147). Finally, the Authors conclude with a call for a return to the progressive original intent of the Framers in order to protect the freedom of conscience which protects “the very nature of what it means to be human” (p.152).

Despite my own separationist leanings, I found two aspects of RELIGION ON TRIAL problematic. First, from the perspective of constitutional interpretation, the heavy reliance on historical argument is problematic [*629] because historical arguments rarely provide a conclusive basis for interpreting the Constitution. With respect to the religion clauses of the First Amendment, Jon Witte notes that for the critical stages of deliberation in the House and Senate, “the record is exceedingly cryptic and conclusory—leaving courts and commentators ever since with ample room for speculation and interpolation” (Witte 2005, at 80). In addition, the recorded interpretations (including those of individual Framers like Madison) support a plurality of interpretations of the First Amendment. For example, Chief Justice Rehnquist (WALLACE v. JAFFREE, dissenting) and Justice Thomas (ROSENBERGER v. RECTOR, concurring) cite Madison to support a regressive or nonpreferrentialist understanding of the Establishment Clause, while Justice Souter (ROSENBERGER, dissenting) and (LEE v. WEISMAN, concurring) cites Madison for a progressive or separationist understanding of the Establishment Clause. Finally, even if their historical argument is correct, the Authors fail to provide an argument for why the “original intent” of the Framers should be the controlling interpretative approach. The Constitution does not include interpretative rules requiring that the Constitution be understood according to the Framers’ intent. Consequently, interpreters must choose whether to rely on the Framer’s intent, the text of the Constitution, Supreme Court precedent, prudential consequences, ethical concerns, or some combination of these factors. For instance, Ronald Dworkin has argued that “constitutional clauses are moral principles that must be applied through the exercise of moral judgment” (Dworkin 1996, at 6). Under this model, constitutional interpretation is basically a question of “how an abstract moral principle is best understood” in the context of a particular legal dispute and not a question of how the Framers “would have interpreted those principles or applied them in concrete cases” (Dworkin 1996, at 2, 10). As a result, the Authors’ separationist reading of the religion clauses of the First Amendment should not be understood to reflect a definitive historical record, but one attempt to interpret that historical record in a manner that they think provides the best understanding of religious liberty.

I also take issue with the Authors’ claim that the Supreme Court has come “to realize (1) that what the Free Exercise Clause of the First Amendment protects is the freedom of conscience, whether conscience is expressed in religious or secular terms” (pp.108-109). While I agree that the term religion should be broadly understood to include comprehensive convictions not traditionally thought to be religious (e.g., humanism, communism, hedonism) (Modak-Truran 2004, at 721-728), the Supreme Court has not defined religion broadly with respect to the religion clauses of the First Amendment. Rather, the Court has tended to deny Free Exercise exemptions to even traditional religions if their practices deviate too much from those of Christianity, such as Native American ritual peyote smoking (EMPLOYMENT DIVISION v. SMITH), Native American religious rituals on sacred land (LYNG v. NORTHWEST INDIAN CEMETARY PROTECTIVE ASS’N), and the Jewish practice of wearing a yarmulke (GOLDMAN v. WEINBERGER). As the Authors indicate, however, the Supreme Court in U.S. v. SEEGER, defined religion broadly for purposes of [*630] granting conscientious objector status to Seeger under federal statutory law even though he only objected to war on purely ethical grounds. The Court clarified in WELSH v. U.S., that its “central consideration in determining whether the registrant’s beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrant’s life” (WELSH, at 339). I expected that the Authors, as scholars of religion, would have argued that this broader conception of religion should be adopted in Free Exercise and Establishment Clause cases, rather than arguing for a shift from freedom of religion to freedom of conscience. This shift is confusing because the Framers chose to eliminate “rights of conscience” from the later drafts of the First Amendment (Witte 2005, at 80-89), and the notion of “freedom of conscience” or “rights of conscience” has many different meanings (McConnell 1990, at 1488-1492). Michael McConnell has persuasively argued that “rights of conscience” was eliminated from the final drafts either because it was considered redundant with the free exercise of religion or, if it is understood as broader than religion, “because the framers chose to confine the protections of the free exercise clause to religion” (McConnell 1990, at 1494-1495). In either case, the Authors’ argument would have been more persuasive if it advocated that the freedom of religion should be understood to encompass a broader definition of religion (as is common in the religion academy), rather than advocating a shift from the freedom of religion to the freedom of conscience.


Despite these problems, RELIGION ON TRIAL makes the historical debates about the religion clauses accessible to a broad audience. In addition, it properly links issues of free exercise of religion to issues about fundamental rights in a manner that is usually missed by legal scholars and political scientists. Consequently, this book would be a good addition to undergraduate, graduate, and law school courses on the religion clauses or on law and religion.

REFERENCES:
Dworkin, Ronald. 1996. FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION. Cambridge, MA: Harvard University Press.

Dworkin, Ronald. 1993. LIFE’S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM. New York, NY: Knopf.

Michael W. McConnell. 1990. “The Origins and Historical Understandings of Free Exercise of Religion.” 103 HARVARD LAW REVIEW 1409-1517.

Modak-Truran, Mark C. 2004. “Renchanting the Law: The Religious Dimension of Judicial Decision Making.” 53 CATHOLIC UNIVERSITY LAW REVIEW 709-816.

Richards, David A. J. 1999. IDENTITY AND THE CASE FOR GAY RIGHTS: RACE, GENDER, RELIGION AS ANALOGIES. Chicago: University of Chicago Press. [*631]

Story, Joseph. [1833] 1970. COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES. Reprint. New York, NY: Da Capo Press.

Witte, John, Jr. 2005. RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT (2d ed.). Boulder, CO: Westview Press.

CASE REFERENCES:
CANTWELL v. CONNECTICUT, 310 U.S. 296 (1940).

EMPLOYMENT DIVISION v. SMITH, 494 U.S. 872 (1990).

EVERSON v. BD. OF EDUCATION, 330 U.S. 1 (1947).

GOLDMAN v. WEINBERGER, 475 U.S. 503 (1986).

LEE v. WEISMAN, 505 U.S. 577 (1992).

LYNG v. NORTHWEST INDIAN CEMETARY PROTECTIVE ASS’N, 485 U.S. 439 (1988).

REYNOLDS v. U.S., 98 U.S. 145 (1879).

ROSENBERGER v. RECTOR, 515 U.S. 819 (1995).

SHERBERT v. VERNER, 374 U.S. 398 (1963).

U.S. v. SEEGER, 380 U.S. 163 (1965).

WALLACE v. JAFFREE, 472 U.S. 38 (1985).

WELSH v. U.S., 398 U.S. 333 (1970).

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ELDERS ON TRIAL: AGE AND AGEISM IN THE AMERICAN LEGAL SYSTEM

by Howard Eglit. Gainesville, FL: University Press of Florida, 2004. 336pp. Cloth. $49.95. ISBN: 0-8130-2765-9.

Reviewed by Susan Haire, Department of Political Science, University of Georgia. Email: cmshaire@uga.edu

pp.621-625

In 1900, approximately four percent of the U.S. population was over 65. By 2030, it is expected that 21 percent of the population will fall into this age group. In ELDERS ON TRIAL: AGE AND AGEISM IN THE AMERICAN LEGAL SYSTEM, Howard Eglit explores the effects of this dramatic demographic shift on the legal system. This account draws on existing empirical studies, rather than presenting original research, to explore the sources of ageism among judges, jurors, and litigants, and to evaluate how (or whether) the age of a legal actor affects performance.

In the initial chapters, Eglit describes the nature of ageism in American society. As he notes, Americans are ambivalent about aging, holding images of the older population that vary from selfless, wise statesman to the physically and mentally “slow.” Eglit concludes that it would be more appropriate to label ageism as a bias (rather than a prejudice) and therefore defines it as a “skewing of attitudes and actions that typically (but not always) either works to the detriment of the subjects of those attitudes and actions or makes problematic ‘accurate’ treatment of oldsters, that is treatment that accords with objective, as opposed to subjective reality” (p.24).

Although age may be a legitimate criterion for dispensing certain privileges and identifying responsibilities, age bias arises when inaccurate stereotypes concerning the older population guide decisions. Seeking to understand the sources of bias, Eglit outlines varying approaches and findings from multiple disciplines. Tracing changes in attitudes toward the elderly over time, Eglit uses historical studies to note distinct trends that coincide with other political and social events in the 18th and 19th centuries. He also discusses a rationale advanced by scholars drawing on the belief that productivity declines with age. These negative (and generally inaccurate) stereotypes contribute to age-based employment discrimination. Although the Age Discrimination in Employment Act (ADEA) provides an avenue for pursuing a remedy to unlawful age discrimination, as Eglit notes, its use has been limited and perceptions of age-related declines in job performance linger in the workplace. Moreover, older workers are often resented by their co-workers for benefits associated with seniority.

Eglit also devotes considerable attention to psychological approaches advanced to explain age biases. From one perspective, stereotypes are cognitive mechanisms used to simplify our efforts to process information. While cognitive limitations may account for the use of stereotypes, Eglit finds that they do not explain the age biases that contributed to [*622] the initial stereotypes. Drawing on other psychodynamic theories, he argues that bias may be a function of group identification but ultimately concludes that this approach, while helpful for understanding racial or sex-based prejudices, is limited in accounting for ageism. Eglit also discusses psychoanalytic theories and socio-biological approaches. Ultimately, he concludes that no single approach may be used to account for ageism because this type of bias is unique. Unlike discrimination based on race, religion, ethnicity, or sex, ageism is not characterized by the same degree of animus. Moreover, aging is a process that we will all undertake. Eglit does suggest, however, that there is the potential for unreasonable uses of the age factor. In the remaining chapters, he explores the role of age with respect to litigants and witnesses (Chapter 5), lawyers and representation (Chapter 6), judges (Chapter 7), and jurors (Chapter 8).

The chapter on litigants deals with two popular conceptions concerning older people and crime: the elderly are more likely to be victims and, offenses by older perpetrators are increasing. With the respect to the first stereotype, he notes that those in the 65-plus age group are the least likely to be victims of crime. However, there is mixed support for the notion that crimes by the elderly are increasing. Eglit summarizes recent empirical findings that indicate a decline in property offenses by older individuals, but a reported increase in violent crime. According to Eglit, in Florida, the rate of forcible sex offenses, robberies, and aggravated assaults by people over 60 rose 150% during the 1990s. In terms of civil disputes, the chapter highlights emerging legal issues associated with the aging population, including elder abuse, discrimination, estate planning, and nursing home tort law.

One interesting portion of this chapter concerns the effect of witness age. Reviewing a substantial line of research on mock juries, Eglit notes that there is only mixed support for the existence of stereotypes held by jurors concerning witness age and credibility of testimony. He also summarizes research on the relationship between age and witness performance. Although a substantial number of studies found age-related declines in ability to recall events and sources, other scholars concluded that these effects vary with the context. On the basis of these findings, Eglit argues for the utilization of cognitive interviewing techniques by law enforcement officials and prosecutors that will enhance the reliability of older witnesses.

The sixth chapter offers an overview of legal and ethical issues that arise for older lawyers and clients. Included in this discussion are existing model rules of professional responsibility that apply when an attorney becomes impaired, including for reasons associated with advanced age. Eglit notes the dilemma faced by the legal profession in dealing with these concerns. For example, in 2003, the ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion in 2003 to deal with situations in which impaired attorneys leave their respective firms. In those cases, the ABA Committee suggested that a firm only communicate its concern about an impaired attorney if there is a “reasonable factual foundation” for that assessment. [*623] Moreover, “the firm has no obligation . . . to inform former clients who already have shifted their relationship to the departed lawyer that it believes the . . . lawyer is impaired . . . [However,] partners in the firm may . . . report to the appropriate authority its concern” (p.97). This chapter also highlights the role of attorneys in dealing with older clients, particularly their professional responsibilities when considering questions of capacity.

Competence in the legal system is explored further in the seventh chapter with a particular focus on the performance of older judges. Litigation over mandatory retirement age for judges in several states has fueled debates on the ability of older judges to meet the demands of their positions. As Eglit notes, advanced age has not posed problems for the federal system where judges enjoy life tenure. But, Eglit also emphasizes that federal judges have an additional option: taking senior status when their combined age and years of service equal 80. When a judge assumes senior status, she retains many of the privileges of a seat on the federal bench but enjoys a reduced workload. As Eglit suggests, court systems benefit by having access to a large cohort of “semi-retired” judges to meet the demands of high caseloads.

Given the large and growing number of older judges on the bench, the relationship between age and decision making continues to attract the attention of social scientists. Eglit summarizes this line of inquiry that has often been framed in terms of the “personal attribute model” of judicial voting behavior. In a study of the U.S. Courts of Appeals, Goldman (1975) found that older judges were more conservative than their younger colleagues in several issue areas. Other studies of the U.S. Supreme Court also indicate that age accounts for variation in judicial voting (Tate 1981). Yet, as Eglit’s review suggests, the effect of age may vary by court and over time. Recent research (published subsequent to this book) suggests that the decision-making context is important to evaluating the effect of age (Manning, Carroll, and Carp 2004). In their study of federal district court decisions, Manning, et al., found support for claims of age discrimination to be lower for the “youngest” (45 and under) judges when compared to decisions by the “oldest” judges (65 and over). Yet, the age of the judge does not affect support for plaintiffs in other types of discrimination claims. In gender discrimination cases, the age of the judge has no effect on judicial voting. In cases of race discrimination, Manning, et al., observe that, similar to earlier studies, as the age of a judge increases, the likelihood of conservative voting also increases. These findings suggest that age-related effects on decision making may be associated with a judge’s ability to identify with the plaintiff. Although this specific study is not discussed in this book, these observations are consistent with research reviewed by Eglit that find older offenders more likely to receive lenient sentences, and the sanction for older offenders varies with the age of the sentencing judge.

Readers may be somewhat disappointed that Eglit does not fully develop a theoretical framework for understanding the effects of judicial age on decision making. The lack of attention is not unique to this work, however. Previous [*624] studies that include age as a variable frequently theorize in very general terms about the effects of personal attributes. The lack of attention to theorizing may be due to limited variation in age among judges. As Judge Posner and others have noted, the judiciary is a geriatric profession. Age-related theories that explain effects associated with life cycles or inter-generational conflicts will be limited in explaining decision making for a group in which the youngest members are in their early 40s. Still, the task is not impossible. With greater attention to theory and the development of concepts and testable hypotheses, problems with measurement and model specification are more likely to be avoided (Epstein and Martin 2004). Scholars also will need to examine more carefully personal attribute theories as they apply to understanding the behavior of elites. For example, recent scholarship suggests “period-effects” in which the circumstances at particular times determine the policy opinions developed during that time. In the context of the courts, this perspective would suggest that policy generations are defined at the time when elites (judges) reach positions of leadership (De Vries 2005).

Research on the relationship between juror age and decision making is similarly lacking, according to Eglit. Existing studies tend to evaluate the effect of age as part of an inquiry that examines the role of personal characteristics in jury decision making. Overall, Eglit suggests that age-related effects arise in specific contexts. For example, he reports the results of a study of juror attitudes in cases of disability discrimination which finds that those under 45 are much less likely to support a plaintiff, compared to jurors over 45. Moreover, research suggests jurors tend to be sympathetic to plaintiffs in ADEA claims. Eglit suggests that age-correlated responses by jurors are possibly due to differences in experience, and he emphasizes the need for jury pools to be made up of individuals from all age groups.

Like many books on law and the legal system, ELDERS ON TRIAL must appeal to a diverse audience. The value of this monograph is that it provides an introduction to issues concerning the role of age in the legal system for all members of the audience. Those who practice law or staff courts will become more informed regarding potential sources of age bias and the empirical foundation for existing stereotypes in the workplace. Social scientists also will find this book to be a useful starting point for specific research questions that relate to the effects of age in the legal system. In addition to an excellent bibliography, Eglit’s work includes more than one hundred pages of footnotes with citations to research from multiple disciplines.

REFERENCES:
De Vries, Michiel S. 2005. “Changing Policy Views At The Local Level: The Effect Of Age, Generations And Policy-Periods In Five European Countries.” 44 EUROPEAN JOURNAL OF POLITICAL RESEARCH 1-15.

Epstein, Lee, and Andrew D. Martin. 2004. “Does Age (Really) Matter? A Response to Manning, Carroll, and Carp.” 85 SOCIAL SCIENCE QUARTERLY 19-30. [*625]

Goldman, Sheldon. 1975. “Voting Behavior on the United States Courts of Appeals Revisited.” 69 AMERICAN POLITICAL SCIENCE REVIEW 491-506.

Manning, Kenneth L., Bruce A. Carroll, and Robert A. Carp. 2004. “Does Age Matter? Judicial Decision Making in Age Discrimination Cases.” 85 SOCIAL SCIENCE QUARTERLY 1-18.

Tate, C. Neal. 1981. “Personal Attribute Models of the Voting Behavior of U.S. Supreme Court Justices: Liberalism in Civil Liberties and Economics Decisions, 1946–1978.” 75 AMERICAN POLITICAL SCIENCE REVIEW 355-367.

© Copyright 2005 by the author, Susan Haire.

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