INTERNATIONAL RELATIONS – THE PATH NOT TAKEN: USING INTERNATIONAL LAW TO PROMOTE WORLD PEACE AND SECURITY

by Thomas J. Schoenbaum. New York: Cambridge University Press, 2006. 336pp. Cloth. $75.00/£40.00. ISBN: 0521862809. Paper. $29.99/£16.99. ISBN: 0521681502. ebook format. $24.00. ISBN: 0511223242.

Reviewed by Robert J. Beck, Department of Political Science and Center for International Education, University of Wisconsin - Milwaukee. Email: rjbeck [at] uwm.edu.

pp.863-867

On the question of international law’s proper relationship to foreign policy, a yawning gap separates two “camps” of practitioners, pundits, and scholars. Arrayed on one side are a host of “Realists,” whose profound skepticism about international law’s utility is well captured in a recent op-ed by columnist Charles Krauthammer: “Tennyson dreamed of a parliament of man. Woodrow Wilson gave it to us. We have lived with it in one form or another for almost 100 years. It has not worked. It never will. We should stop being surprised when it doesn’t” (Krauthammer 2006, at 39). This Realist perspective was more colorfully evinced by President George W. Bush when he reportedly chastened Donald Rumsfeld: “I don’t care what the international lawyers say, we are going to kick some ass” (Clarke 2004, at 24). On the other side of the divide are those who have been variously dubbed “Idealists,” “Institutionalists,” or “Liberal Internationalists.” Legal scholar Thomas J. Schoenbaum and his INTERNATIONAL RELATIONS – THE PATH NOT TAKEN lie squarely here. For Professor Schoenbaum, “international law and international institutions must be the focal points of foreign policy” (p.vii).

Schoenbaum’s book joins an array of recent scholarship on international law’s character and policy relevance, much of which has received LPBR review (Anghie 2004; Benvenisti and Hirshe 2005; Buchanan 2004; Goldsmith and Posner 2005; Koskenniemi 2006; Schulte 2004; Simpson 2004). His work’s primary intended audience would seem to be Americans, given his various references to the United States as “we” (e.g., “the U.S. War on Terror beguiles us into thinking our government is protecting us” – p.131). Moreover, the book’s content and format make it especially suitable for college students enrolled in undergraduate courses on Global Studies, International Organization, and International Law. Even so, Schoenbaum clearly hopes his argument will exert broad influence, perhaps even helping move U.S. policymakers away from unilateralism and toward a reassertion of constructive leadership in the international legal and institutional realms (see, e.g., pp.xiv, 33, 276). To the extent that Schoenbaum has indeed sought such an audience, and in view of his core concerns, his text is somewhat misleadingly titled. Arguably better would have been: CONTEMPORARY U.S. FOREIGN POLICY – THE PATH NOT TAKEN.

The tone and style of THE PATH NOT TAKEN vary rather markedly throughout the book’s ten chapters. At times, the work is traditionally scholarly and descriptive. Schoenbaum straightforwardly reports, for example, that “the international regime of state responsibility is still embryonic and controversial” (p.40). At other times, though, his tone is notably polemical. The “neo-conservative foreign policy,” Schoenbaum avers, “has produced a crisis of unparalleled proportions” (p.50). Among the various Bush Administration officials singled out for special criticism by Schoenbaum is Alberto Gonzalez, “architect” of the prisoner abuse scandal and “guilty of incompetence and disregard of the law” (pp.256, 260). Similarly variable is Schoenbaum’s use of language, which fluctuates between the technical/arcane (“legal norms rest on a sui generis, positivistic foundation that has been termed the Grundnorm . . . or ‘rule of recognition’” – p.67) and the conversational/colloquial (“Believe me, international law is a lot simpler than the U.S. tax code” – p.92, or “International trade competes with domestic suppliers of goods and services, and sometimes eats their lunch. Naturally this does not go over well” – p.177). This stylistic variability is not a defect of Schoenbaum’s book, but rather would seem to reflect the author’s dual purposes/audiences: scholarly description for an academic audience; and policy prescription for a broader public audience.

THE PATH NOT TAKEN reviews and modestly engages the theoretical literatures of the International Law (“IL,” see pp.62-71) and the contemporary International Relations (IR) disciplines: Realism, Neorealism, Game Theory, Functionalism, Neofunctionalism, Complex Interdependence, Regime Theory, Constructivism, and the English School (pp.46-49, 56-59). Even so, it does not offer a sustained, self-consciously “theoretical” argument, in the strictest social scientific sense of the term. Schoenbaum’s thorough explication of contemporary international legal rules and institutions might suggest to the careful reader, but it does not directly address or explore, such intriguing questions as why U.S. behavior toward international law has varied over time, why U.S. behavior has varied across such legal issue areas as national security and the economy, and why legal issue areas that impose immediate costs but offer deferred benefits have apparently proven particularly challenging to elicit international institutional participation by the U.S. Schoenbaum does provide, however, a sociological account of international law that undergirds his work, one that savors both of IR’s Constructivism and the English School. International law, he contends, constitutes “international society,” creating “a web of relationships based on obligation” (p.89). Indeed, “law and society are co-terminous; each is an integral part of the structure of society” (italics in original, p.69).

Schoenbaum insulates himself somewhat from Realist criticism by regularly acknowledging the limitations of international law and institutions. These are not, he suggests, “magic bullets” or “panaceas,” but “rather fragile and imperfect” (p.xiv). “International law and institutions have manifest defects” (p.52), he concedes, with the U.N. as currently constituted “fundamentally flawed” (p.97), with UNCED’s five important instruments on environmental protection “being ignored or . . . in severe difficulty” (p.199), and with the U.N. Commission on Human Rights making “a mockery of the entire U.N. system of protection of human rights” (p.251). Moreover, Schoenbaum assiduously reaffirms the significance of power for international relations: “[p]ower will always be important” (p.304). He even grants to Realists that states are “rational actors that have interests and seek to further those interests” (p.vii). Ultimately, though, Schoenbaum is a defender and advocate of Liberal Internationalism who seeks reform of international law and institutions so that they may be employed “to use power in subtle and creative ways” (p.31).

Schoenbaum submits that “state interests” in the twenty-first century have broadened, with those interests “rooted in cooperation” and also those “held in common with all of international society” predominating (p.viii). The world is small and interconnected, as never before. Security, traditionally viewed exclusively through a “state” lens, now has vital “human” and “environmental” aspects (p.viii). In our globalized realm, international rules are “indispensable to furthering state interests,” creating legitimacy, order, and predictability (p.ix). International institutions, meanwhile, can exert a “multiplier effect” that is “indispensable to the solution of world problems” (p.ix). While reform will be difficult, Schoenbaum insists, his Liberal Internationalist approach offers the best, if inevitably imperfect, “path” to world peace and security (p.xiv). THE PATH NOT TAKEN elaborates this argument over three hundred pages, addressing as it does such crucial areas as peace and security (pp.96-147), international political economy (pp.148-195), international environmental protection (pp.196-249), international human rights (pp.250-284), and international crimes (pp.285-301).

THE PATH NOT TAKEN is impressive in its range, reflecting its author’s expertise and scholarly rigor. Nevertheless, Schoenbaum occasionally presents a principle or an interpretation of international law with relatively little or no qualification, as if it were uncontested or uncontestable. The book’s expansive scope inevitably precludes nuanced treatments of every significant international legal controversy. Even so, some scholars may take issue with one or more of Schoenbaum’s doctrinal characterizations or legal assessments. Four examples may perhaps suffice here.

First, dismissing those “respected scholars” who “occasionally” have “lapsed” into the naturalist “fallacy” (p.72), Schoenbaum contends that “today . . . international law is fully positivist” (pp.64-65). To be sure, the overwhelming majority of contemporary international law is positivist. Nevertheless, naturalist underpinnings arguably continue to inform “general principles of law,” as sources of international law, as well as the corpus of human rights law. Second, Professor Schoenbaum asserts that “in the twenty-first century sovereignty has a new and simple meaning – the right of the citizens of a state to determine their own destiny” (p.38). This characterization of sovereignty, while attractive, surely represents only one of many contending constructions. Third, the “atomic bombing of Hiroshima and Nagasaki” was an “undeniable” war crime, Schoenbaum argues, with two sentences of supporting commentary (p.287). If the 1945 use of nuclear weapons was indisputably impermissible under international law, though, one must wonder why the International Court of Justice’s advisory opinion on the more general subject (NUCLEAR WEAPONS 1996) ultimately proved so equivocal, informed as it was by a consideration of pre-U.N. Charter law: “Despite the undisputed applicability of the principles and rules of humanitarian law and of the law of neutrality to nuclear weapons, the Court found the conclusions to be drawn from this applicability were controversial” (Bekker 1997, at 130). Fourth, Schoenbaum might reasonably be interpreted to suggest that custom is an inferior source of international law. Certainly, he judges custom “a much less important source” than treaties (p.73), and at least twice he describes customary law as “weaker than treaty law” (pp.31, 229). Opinions on “sources doctrine” surely differ. Nevertheless, as Slomanson has observed, many contemporary commentators “consider custom to be not only at the top, but also the essential basis for the other sources” (Slomanson 2007, at 11). Moreover, jus cogens obligations, which are arguably custom-based, may not be abrogated by treaty (Bederman 2001, at 23).

A far more trivial criticism of Schoenbaum’s book should also be noted. Reflecting the student audience for which it is partially intended, THE PATH NOT TAKEN features end-of-chapter bibliographies. These seem sub-optimally organized. While the included works might have been arranged by author, title or date, each is listed instead in the order in which that work’s theme was introduced in the chapter: an organizing structure less useful to those who have not yet read the chapter. The bibliographies offer some sparse annotation, but thematic subtitles would have been most welcome. Even so, the bibliographies constitute a most valuable addition, as do the book’s various text boxes, maps, and figures.

INTERNATIONAL RELATIONS: THE PATH NOT TAKEN is well-sourced, comprehensive, and clearly written. It reflects its author’s manifest passion for his subject while it addresses questions of immense consequence for our time. Readers may ultimately disagree with Thomas Schoenbaum’s international legal analysis or his foreign policy prescriptions. Nevertheless, THE PATH NOT TAKEN is well worth the close attention of students and scholars of the “IR” and “IL” disciplines, and of all others concerned about world peace and security.

REFERENCES:
Anghie, Antony. 2004. IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW. New York: Cambridge University Press.

Bederman, David J. 2001. INTERNATIONAL LAW FRAMEWORKS. New York: Foundation Press.

Bekker, Peter H. F. 1997. “Legality of the Threat or Use of Nuclear Weapons.” 91 AMERICAN JOURNAL OF INTERNATIONAL LAW 126-133.

Benvenisti, Eyal and Moshe Hirsch (eds.). 2005. THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES. New York: Cambridge University Press.

Buchanan, Allen. 2004. JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW. Oxford: Oxford University Press.

Clarke, Richard. 2004. AGAINST ALL ENEMIES: INSIDE AMERICA'S WAR ON TERROR. New York: Free Press.

Eden, Paul, and Thérèse O’Donnell (eds). 2004. SEPTEMBER 11, 2001: A TURNING POINT IN INTERNATIONAL AND DOMESTIC LAW? Ardsley, New York: Transnational International Publishers.

Goldsmith, Jack L. and Eric A. Posner. 2005. THE LIMITS OF INTERNATIONAL LAW. New York: Oxford University Press.

Koskenniemi, Martti. 2006. FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT. (Reissue with New Epilogue). New York: Cambridge University Press.

Krauthammer, Charles. 2006. “We should learn from our past; if an organization has no teeth, it can’t bite.” TIME (October 23) 39.

Schulte, Constanze. 2004. COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE. New York: Oxford University Press.

Simpson, Gerry. 2004. GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER. New York: Cambridge University Press.

Slomanson, William R. 2007. FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW. (5th ed.). Belmont, CA: Thomason Wadsworth.

CASE REFERENCE:
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (Advisory Opinion), 1996, ICJ Reports.

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© Copyright 2006 by the author, Robert J. Beck.

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AWAKENING FROM THE DREAM: CIVIL RIGHTS UNDER SIEGE AND THE NEW STRUGGLE FOR EQUAL JUSTICE

by Denise C. Morgan, Rachel D. Godsil, and Joy Moses (eds). Durham, NC: Carolina Academic Press, 2006. 482pp. Paper. $45.00. ISBN: 1594600740.

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

pp.854-859

AWAKENING FROM THE DREAM: CIVIL RIGHTS UNDER SIEGE AND THE NEW STRUGGLE FOR EQUAL JUSTICE is a criticism of the Rehnquist Court’s civil rights jurisprudence and a call to action. Its message is consistent: Chief Justice William Rehnquist and his fellow conservatives have dismantled federal laws that promote inclusion, equality, political participation, and economic mobility. From the subtitle (“Civil Rights Under Siege”), to the opening sentence of the Foreword (“These are bleak times for civil rights”), to the Introduction (“federal courts have abdicated their responsibility to promote equal justice”), to the title of the final essay (“Legal Strategies to Pursue Social Justice”), the frustration of the authors is evident. A sampling of oft-used words and phrases informs—sword of oppression, retreat, rollback, struggle for justice, hostility, ideological backlash, reneging, abuse, double-talk, and hypocrisy. And these are just from the titles and subtitles of chapters.

Edited by Denise C. Morgan (former professor at New York Law School), Rachel D. Godsil (civil rights professor at Seton Hall University School of Law), and Joy Moses (staff attorney for the Education Project at the National Law Center for Homelessness & Poverty), AWAKENING FROM THE DREAM is a collection of essays written by activists, law professors, public interest lawyers, and law students. The essays are written for general readers and students. The language is not technical; the prose easily understandable.

A helpful foreword, written by Erwin Chemerinsky, lays out the purpose and direction of the book. What follows is what is promised – a collection of essays, the purpose of which is two-fold – to inform of the conservative assault on civil rights and to inspire the masses to do something about it (to “awaken from the dream”). As such, the essays do not come from a variety of perspectives. Of the twenty-six essays, eighteen assess where the nation is today with respect to protecting civil rights; the final seven offer suggestions for how to restore civil rights. Endnotes accompany each essay.

The book, which came out of a Columbia Law School conference celebrating the birth of the National Campaign to Restore Civil Rights (NCRCR), is divided into four parts. Part I provides a framework for understanding the relationship between federalism and civil rights. Part II explores the impact of the Rehnquist Court’s “Federalism Revolution” on the lives of various groups of Americans. The editors use the term “Federalism Revolution” to mean “the current appeal [*855] to states’ rights that has been used to justify decisions undercutting Congress’ ability to create and enforce civil rights” (p.xvii). Part III examines the impact of the federalism revolution on the provision of government services. Part IV attempts to point out that the federalism revolution is “a rhetorical veil for a political agenda.” And Part V provides strategies for reversing the assault on civil rights. The book also includes in Appendix A, a glossary of terms; in Appendix B, a list of websites with information about federal judicial nominations (although the list is far from balanced); and in Appendix C, the Constitution of the United States. A complete list of essays and authors (with affiliations) is provided at the conclusion of this review.

In Part I, Paul Finkleman’s essay sets the stage by succinctly exploring the relationship between federalism and civil rights from the founding of the Republic until the mid-1950s. Wade Henderson then discusses the most recent half-century, with an emphasis on judicial developments of the 1990s and 2000s, in a reprint of his opening remarks to the NCRCR Conference in 2002. Finkleman’s essay is an informative albeit brief history lesson. Henderson’s contribution is more a litany of “bad” decisions rendered by the High Court. He jumps from issue to issue and case to case. “In this case, the justices held . . . . In that case, the majority determined . . . .” Henderson’s piece is clearly better suited for a keynote address at a convention for political activists than a book.

The crux of this book comes in Parts II and III. Part II tells how various groups have been directly harmed by the “right-wing” federal judiciary. Essays in this section discuss the civil rights of blacks, Latinos, Asian-Americans, women, the elderly, the disabled, sexual minorities, language minorities, and immigrants. Part III describes the rollbacks in the areas of education, health care, the environment, the criminal justice system, the domestic “war on terror,” and immigration. Unfortunately, Barbara J. Olshansky’s essay on civil liberties and terrorism does not consider much of what has transpired recently. Within the past few years, the Supreme Court has ruled on a number of challenges to the administration of President George W. Bush’s claim that it has the power to detain indefinitely U.S. citizens held as “enemy combatants,” and to detain indefinitely and try by military tribunal, without appeal, foreign nationals who had been seized on battlefields and held at Guantanamo Bay, Cuba. It is worth noting that many of Olshansky’s arguments in opposition to this assertion of unilateral executive authority found a voice on the High Court. Additionally, the chapter on immigration was obviously written before immigration (reform) emerged as a major political issue.

All of the essays in these two parts follow a similar pattern. They open with a vignette of some American who has been deprived of “justice” by the civil rights rollback. They then show how state and federal statutes, executive actions, and judicial decisions of a previous era promoted inclusion, equality, political participation, and [*856] economic mobility. The lion’s share of each essay is dedicated to demonstrating how the Rehnquist Court has dismantled the civil rights agenda. Finally, the essays end with a plea for like-minded persons to take up the cause of revitalizing civil rights. Most of the conclusions are standard and trite: “[T]he Rehnquist Court has abandoned the true promise of equality under the Constitution,” is indicative (p.50).

Part IV contends that the decisions of the Rehnquist Court have been based entirely on politics and not principle. In an essay entitled “It’s Not About States’ Rights,” Herbert Semmel demonstrates some inconsistencies of the Court’s right-wing voting block. Using examples in cases involving abortion, business practices, campaign contributions, environmental protection, family law, gay rights, health insurance, land use, medicinal marijuana, state tort law, and tobacco products, Semmel shows that the Court’s oft-stated commitment to states’ rights is unsupported by some of its jurisprudence. Time and time again, the justices have ignored the principle of federalism when overriding state laws that favor civil rights interests. In none of the cases, however, does Semmel provide anything more than a summary paragraph of what was decided.

Some of the essays in Part V inform as to how the conservatives have rolled back civil rights. Lee Cokorinos and Alfred F. Ross, for example, outline the history and structure of the conservative movement, including synopses of the more influential think tanks and legal and advocacy organizations. And Susan Lerner explains how the political right, beginning with President Ronald Reagan, has been much more effective at remaking the federal judiciary to further its political agenda. As a result, she alleges, we now have a judiciary dominated by right-wing ideologues who are directly responsible for the dismantling of protections for civil rights. The final five essays in Part V look to the future by offering readers some approaches to stemming the anti-antidiscrimination tide. While each chapter emphasizes a specific topic – encouraging new and more specific civil rights legislation, promoting community and student activism, and pursuing litigation – all offer a myriad of suggestions for revitalizing civil rights.

I often find collections of essays difficult to read (and awkward to review). Far too often, they are repetitive and disconnected. The essays in AWAKENING FROM THE DREAM are not disconnected; but they are repetitive. For example, the chapters on “Older Americans” and “Americans with Disabilities” cover much of the same information. Similarly, the essays on “Latinos,” “Language Minorities,” Immigrant Workers,” and “Immigration” address many of the same laws, cases, and issues. And chapter after chapter after chapter discuss the Civil Rights Act of 1964. Standing alone, each of the essays is informative; together, however, they are too repetitive. Careful editing would have improved this book.

AWAKENING FROM THE DREAM has two other shortcomings – perspective and analysis. First, far too often, authors equate our present state of [*857] civil rights with those of a bygone and disgraced era. Not every limitation on civil rights is comparable to slavery, forced racial segregation, or second-class citizenship. Not every civil rights decision of the Rehnquist Court that adversely impacts minorities deserves to be equated with DRED SCOTT v. SANDFORD (1857), THE CIVIL RIGHTS CASES (1883), or PLESSY v. FERGUSON (1896). Second, the essays rarely discuss in any detail why the Court said what it said. Complicated judicial decisions are not made understandable by reciting their holdings alone. Of paramount concern are the rationale, the disagreements among the justices, the balancing of competing constitutional claims, and the significance of the case. Readers interested in this information will have to look elsewhere.

Shortcomings aside, it is worth remembering that the book was never intended to be a dispassionate analysis of modern civil rights jurisprudence. It was intended to inspire the (probably already predisposed) civil rights activists and others nominally interested in the subject to AWAKEN[] FROM THE DREAM. No doubt it will do that for many.

ESSAYS INCLUDED:
Paul Finkelman (Chapman Distinguished Professor of Law, University of Tulsa College of Law): “What is Federalism and What Does it Have to do with Civil Rights?”

Wade Henderson (Executive Director, Leadership Conference on Civil Rights) and Janell Byrd-Chichester (civil rights attorney, The Cochran Firm, Washington, D.C.): “The NCRCR Conference Introduction.”

Lia B. Epperson (Director of Education, NAACP Legal Defense and Education Fund, Inc.): “The Rehnquist Court, the Resurrection of Plessy, and the Ever-Expanding Definition of “Social Discrimination.”

Sandra Del Valle (civil rights lawyer): “Un Pasito Pa’lante, Un Pasito Pa’tras: Latinos and the Rollback of Civil Rights.”

Vincent A. Eng (Deputy Director, National Asian Pacific American Legal Consortium) and Julianne Lee (student, University of Michigan Law School): “Asian Americans under the Rehnquist Court: A Protracted and Ongoing Struggle for Justice and Recognition.”

Emily J. Martin (Staff Attorney, Women’s Rights Project, ACLU): “Making a Federal Case out of Women’s Concerns: The Supreme Court’s Hostility to Civil Rights for Battered Women.”

Simon Lazarus (Senior Counsel, Sidley Austin Brown & Wood): “‘Narrowing the Nation’s Power’: The Impact of Older Americans.”

Caroline Palmer (Pro Bono Development Director, Minnesota State Bar Association): “Judicial Revision of the Americans with Disabilities Act of 1990: Mere Fine-Tuning? Or Ideological Backlash?” [*858]

Arthur S. Leonard (professor, New York Law School): “The Federalism Revolution and the Sexual Minority Federal Legislative Agenda.”

Rose Cuison Villazor (Human Rights Fellow, Columbia Law School): “Language Rights and Loss of Judicial Remedy: The Impact of Alexander v. Sandoval on Language Minorities.”

Marielena Hincapiè (Program Director, National Immigration Law Center) and Ana Avendaño-Denier (Assistant General Counsel and Director of the Immigrant Worker Program, AFL-CIO): The Rollback of Immigrant Workers’ Civil Rights.”

Denise Morgan (professor, New York Law School): “Reneging on the Promise of Brown: The Rehnquist Court and Education Rights.”

Jane Perkins (Legal Director, National Health Law Program): “The Civil Rights Rollback: It’s Bad for Your Health.”

Olga Pomar (attorney, South Jersey Legal Services) and Rachel D. Godsil (civil rights professor, Seton Hall University School of Law): “Permitted to Pollute: The Rollback of Environmental Justice.”

Michelle Alexander (Associate Professor of Law and Director of the Civil Rights Clinics, Stanford Law School): “Federalism, Race, and Criminal Justice.”

Barbara J. Olshansky (Director Counsel, Global Justice Initiative of the Center for Constitutional Rights): “Who’s Watching the Home Front?”

Lori A. Nessel (Associate Professor and Director of the Immigration & Human Rights Clinic, Seton Hall University School of Law) and Anjum Gupta (Clinical Fellow, Center for Social Justice, Seton Hall University School of Law): “Abuse of (Plenary) Power? Judicial Deference and the Post-9/11 War on Immigrants.”

Herbert Semmel (former Director, Federal Rights Project of the National Senior Citizens Law Center): “Double-Talk by the Activist Supreme Court Majority.”

Nathan Newman (Director, Agenda for Justice): “Federalist Hypocrisy and the Preemption of State Labor Laws.”

Lee Cokorinos (Executive Director, Capacity Development Group) and Alfred F. Ross (Founder and President, Institute for Democracy Studies): “Fighting the Civil Rights Rollback: Lessons from the Right.”

Susan Lerner (Founder and Chair, Committee for Judicial Independence): “Saving the Courts.”

Joy Moses (Staff Attorney, Education Project at the National Law Center for Homelessness & Poverty): “Protecting Ideals of Equality and Justice for All: Progressive Legislation in the Conservative Era.”

Dennis D. Parker (Bureau Chief, Civil Rights Bureau of the Office of New York State Attorney General): “State Strategies to Reverse the Civil Rights Rollback.” [*859]

Andrew Friedman (Co-founder, Make the Road by Walking), Robert Garcia (Executive Director, Center for Law in the Public Interest, Los Angeles, CA ), Erica Flores Baltodano (Asistant Director, Center for Law in the Public Interest, Los Angeles, CA), Julie Hyman (Senior Policy Analyst, Center for Indepedence of the Disabled in New York), Brad Williams (Executive Director, New York State Independent Living Council), and Tracie Crandell (Policy Analyst, Center for Disability Rights): “We Shall Be Moved: Community Activism as a Tool for Reversing the Rollback.”

Lisa Zeidner (student, Columbia Law School) and Luke Blocher (student, Columbia Law School): “Building a Student Movement: Lessons Learned and Suggestions for the Future.”

Marianne Engleman Lado (General Counsel, New York Lawyers for the Public Interest): “Lawyering and Litigation during the Rollback: Legal Strategies to Pursue Social Justice.”

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

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

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

HAMDAN v. RUMSFELD, 126 S.CT. 2749 (2006).

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

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

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

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© Copyright 2006 by the author, Richard A. Glenn.

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THE EVOLUTION OF THE TRADE REGIME: POLITICS, LAW, AND ECONOMICS OF THE GATT AND THE WTO

by John H. Barton, Judith L. Goldstein, Timothy E. Josling, and Richard H. Steinberg. Princeton, NJ: Princeton University Press, 2006. 256pp. Cloth. $29.95 / £18.95. ISBN: 0691124507.

Reviewed by Matthew Schaefer, Professor of Law, University of Nebraska College of Law. Email: mschaefer1 [at] UNL.EDU.

pp.849-853

The operation of the World Trade Organization (WTO) involves an ever increasing, complex web of economics, national politics, international diplomacy, and law. The WTO system is currently under strain, as displayed by the difficulty in concluding its latest round of multilateral trade negotiations, the Doha Round. The difficulty in the current negotiations is due, at least in part to the system’s prior success, but also because of the increasingly complicated politics, diplomacy and law involved within the institution. The WTO’s predecessor, the General Agreement on Tariffs and Trade (GATT), was remarkably successful in lowering border barriers, largely tariffs on goods. The WTO’s mission, since its creation in 1995, has been far broader: to tackle non-tariff, non-border barriers more comprehensively, to lower restrictions to both goods and services, to enhance intellectual property protection, and to re-integrate agriculture and textiles trade within the system. Additionally, the WTO seeks to achieve these goals among an ever increasing membership that now exceeds 150 countries. Thus, the “low-hanging fruit” on the trade agenda has largely been addressed, leaving the current Doha Round to pick the more difficult “high hanging fruit” but with many more participants with multiple ideas on how best to reach that fruit.

The four authors of THE EVOLUTION OF THE TRADE REGIME, John Barton, Judith Goldstein, Timothy Josling, and Richard Steinberg, perform a much needed academic and public service in describing and analyzing the complexity of the operation of the WTO and the complexity of the immediate and long-range challenges facing the institution. This is no surprise given their multi-disciplinary backgrounds and varied professional experiences, and that their inspiration for writing the book was the acrimonious 1999 Seattle Ministerial meeting that failed to launch a new Round of negotiations. Although previous attempts to launch new Rounds were unsuccessful in the GATT/WTO system, Seattle was a very public display of the impact of domestic politics, including the rise of non-governmental organizations (NGO) interested in the workings of the WTO, and the complications arising from a more diversified membership body, including many more developing countries (with distinct interests) asserting themselves more forcefully in negotiations. The Seattle Ministerial failure was cured two years later in Doha with the launch of a new Round shortly after the tragic events of 9/11. However, the pace of progress [*850] in the Doha Round negotiations show that the underlying tensions regarding such issues as trade remedies, agriculture, and textiles remain. Indeed, solving some of these issues in the negotiations has become even more complex with the accession of China to the WTO.

The multi-disciplinary approach taken by THE EVOLUTION OF THE TRADE REGIME will provide any student (graduate or undergraduate) from the fields of political science, law or economics (or any future policy maker) great insights, both theoretical and practical, into the current and future operations and challenges of the WTO. From a theoretical perspective, one can find a variety of international relations analysis in the book, including realist theory, regime theory and liberal IR theory. Indeed, the opening chapter provides a “political analysis of the trade regime” and includes sub-chapters on “state power and international trade institutions” and “non-state actors and domestic institutional design.”

Throughout the book, in both theoretical and practical sections, the reader will find that the authors avoid dogma, and present the appropriate level of nuanced analysis. For example, in the sub-chapter on “state power,” the authors note that while “some analysts evaluate state power in the aggregate,” one should really look to “a specific negotiating context, like trade negotiations, in which only some dimensions of power are likely to be brought to bear” and thus “the measure of power must be more tailored” (p.10).

While providing a realist analysis based on state power, it becomes clear that the authors believe that regime and particularly liberal IR theory are better predictive models for the WTO system. As the authors put it: “few interests other than survival can be ascribed to all states. Some other theory . . . about interests is necessary to supplement a pure international approach” (p.14). Indeed, many of the sections describing particular substantive WTO agreements conclude with an analysis of the domestic political framework and consequences surrounding the agreement. For example, after describing the Trade-Related Intellectual Property Agreement (TRIPs), the authors discuss the domestic implications: adjustment of regulations to “provide minimum levels of protection where such protection may not be in the interests of that country” and provision of “means of effective enforcement,” including by necessity the “establishment of a patent office, education of lawyers and judges about the nature of IP rights, constraints on the corruption of judges and other officials that administer and adjudicate IP rights” (p.142). Given the potential impact on domestic policies and resources, it is little wonder that the TRIPs agreements (and many other WTO agreements) raise issues of “capacity building” within developing countries.

It is no surprise, given the authors’ preference for regime theory, and especially liberal IR theory perspective, that the book involves collaboration among legal and political science/international affairs academics. Regime theorists believe in the [*851] possibility of gains from cooperation or in non-zero sum interactions and outcomes. Formal legal institutions can be a means to reduce transaction and monitoring costs from continuous one-off bargaining. Liberal IR theorists believe that domestic politics, including domestic constitutional structures and divisions of power, can influence state interests and thus state behavior. The trading system has traditionally been quite fertile ground for cooperation among regime and/or liberal IR theorists and lawyers. Indeed, it would be difficult for a political scientist seeking to explain state behavior in the WTO to ignore the legal aspects of the institution (or the domestic constitutional and legal orders of its member states).

One of the WTO’s main advancements over its predecessor institution was the creation of a more judicialized dispute settlement process. Under the old GATT, a defendant nation alleged to be violating its commitments, could simply “block” the dispute settlement process at various stages by voicing objection. In contrast, the WTO allows for an “automatic” right to a dispute settlement panel, “automatic” adoption of dispute settlement reports, and “automatic” authorization of retaliation in event of prolonged non-compliance by a losing defendant country. Thus, the WTO has “teeth” that its predecessor lacked. The WTO also involved the creation of a first-of-its-kind Appellate Body that has the power to review “lower” dispute settlement panel findings. While the GATT process obtained remarkably high compliance rates by losing defendant countries, the WTO also has achieved high-compliance with much tougher and expanded substantive rules vis-à-vis the GATT.

Treatment of the dispute settlement system in THE EVOLUTION OF THE TRADE REGIME will be of interest to both political science and law students. After a thorough review of how the system operates, the authors discuss one of the key current controversies in the operation of the system: whether judicial lawmaking is occurring and to what extent. The authors analyze several recent cases to determine the extent to which either “gap filling” or “clarifying ambiguity” occurs and whether this amounts to “lawmaking.” The authors conclude that lawmaking occurs in both forms, but that gap filling is primarily limited to the procedural realm; however, there are limits and constraints that will hopefully keep both types of lawmaking within acceptable political bounds. The authors find that “it is difficult to conclude from the foregoing signals the US government currently perceives that judicial lawmaking has fundamentally prejudiced its interests” (p.87). Some constraints on judicial lawmaking mentioned as possibilities by the authors may pose significant practical difficulties because of the consensus decision-making procedure that prevails in the WTO. For instance, correcting a case of judicial lawmaking through formal interpretation by members, or even in the context of a negotiating Round, becomes difficult, or at best costly, to member(s) seeking the correction. Nevertheless, it is likely that other checks and limits on the Appellate Body will suffice. [*852]

Throughout the book, the authors offer plenty of “practical” insights on WTO operations. For instance, national government negotiators are well aware of the so-called “green room” process during trade negotiations, but only the more specialist outsiders are probably familiar with it. THE EVOLUTION OF THE TRADE REGIME illuminates: “These Green Room caucuses, named after a room in the WTO building in which they have sometimes taken place, consist of twenty to thirty-five countries that are interested in the text being discussed. . . . [T]he agenda for . . . round-launching ministerials . . . and round closing ministerials has been set in Green Room caucuses” (p.64). There was some backlash against this Green Room process at the Seattle Ministerial but this “‘concentric circles’ model” continues today despite “being the primary object of concern by developing countries that want greater internal transparency” (p.65).

The book devotes a whole chapter to the issue of expanded WTO membership and the challenges that developing countries face. The authors, typical of the level of nuance and detailed analysis in this book, during their discussion do not simply lump all developing countries into one large group sharing the same interests and goals. China is addressed in a separate sub-section, and developing countries with different levels of economic growth and industrialization are distinguished. Nevertheless, the authors consider broadly shared concerns, such as internal transparency, and analyze general asymmetries based on market power. For example, the more judicialized dispute settlement system has been used by developing countries more widely than the old GATT system, and it is viewed as more equitable than a system emphasizing power-based negotiations to resolve disputes. The WTO system limits but does not eliminate the effect of power differences. For example, “the imposition of sanctions by a developing country on a developed country that declined to implement a decision could very well be to the disadvantage of the developing country itself” (p.171). Developing countries also might face “additional asymmetries,” including staffing and informational challenges.

Another example of “insider”-type knowledge is the description of the WTO secretariat. The authors note that the secretariat “plays a key role in dispute settlement” and that “members of the secretariat influence decisions, through advice to panel participants and informal recommendations on written reports” (p.212). They also discuss the evolving relationship within the secretariat between professional staff and the more political upper-echelon officials. The secretariat staff (as well as the dispute settlement panelists and Appellate Body members) are the very so-called faceless bureaucrats that many NGOs (representing environmental and other interests) have long complained about holding too much power. The traditional response to NGO requests for access to the trading system was that their input could occur only at the national level. However, the WTO has changed that exclusive national means of input, and done so through an act of what some might describe as judicial lawmaking. Although there is no [*853] explicit provision in the dispute settlement agreement allowing for amicus briefs, the Appellate Body interpreted general language regarding access to information to allow itself and dispute settlement panels to consider amicus briefs from NGOs. The irony is obvious: the faceless bureaucrats whom NGOs charged with undermining democratic policy choices are the ones that have allowed NGOs greater access to the WTO dispute settlement mechanism. The authors give a fulsome account of the benefits and drawbacks of greater NGO participation in national trade policy-making processes and in the WTO. One key factor highlighted is the need for the WTO to maintain its legitimacy. The authors believe that further inclusion of NGOs in national policy-making processes, as well as in the WTO, will positively influence legitimacy. However, they describe several problems with direct participation of NGOs, including that fact that many member nations “lack active and indigenous NGOs and . . . perceive active NGOs as representing” (pp.201-202) industrialized country interests.

The final challenge the authors address is that of regionalism (or the proliferation of Free Trade Agreements (FTAs)). The original GATT, like the WTO system, allows an exception to the most-favored-nation (MFN) obligation for FTAs. Hundreds of FTAs have been concluded, and the numbers continue to increase. Even nations that traditionally resisted such agreements have engaged in this activity. Roughly one-half of world trade occurs under these (and other) preferential regimes. A question raised by the authors is whether the WTO should “reinstitute a multispeed approach” as opposed to its current “single undertaking” approach, in which all WTO nations are party to (nearly) all substantive agreements under the WTO institutional umbrella. Alternatively, “special treatment within common rules” might be negotiated.

Like many of the other challenges facing the WTO, the issue of regionalism and the WTO’s response to it, lends no easy solutions or answers. However, students of today (as well as incoming policy makers and new legislators with trade policy interests or responsibilities) will be well served by the theoretical and practical analysis provided by THE EVOLUTION OF THE TRADE REGIME as they begin to think of and propose solutions to the complex challenges facing the WTO system.

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© Copyright 2006 by the author, Matthew Schaefer.

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PUNISHMENT AND INEQUALITY IN AMERICA

by Bruce Western. New York: Russell Sage Foundation, 2006. 247pp. Cloth $29.95. ISBN: 0871548941.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bgpeabody [at] msn.com.

pp.845-848

Although Bruce Western’s title promises a general survey of crime and inequality in the U.S., his actual focus is more narrow: “How can we understand the fabulous growth in the American penal system [over the past three decades] and its effects on the poor and minority communities from which prison inmates are drawn and ultimately return?” (p.4). Western answers this question by arguing that America’s enthusiasm for “large-scale imprisonment” (p.xii) since the 1980s has produced a number of largely unheeded consequences for both society at large and a discrete demographic group: young, urban, and uneducated African-American males.

Western contends that, among other effects, the “prison boom” has distorted our assessment of the prosperity ushered in during the 1990s, since millions of individuals incarcerated over this period were not included in official tallies of economic health. Moreover, Western argues, the dramatic expansion of the prison population (a 700% increase over the past thirty years) has deepened racial and class inequality. The disproportionate (both in terms of their population and rates of crime commission) growth of African American prisoners has incidentally damaged their prospects of ever assuming a “normal” life sequence of stable relationships and the “modest affluence that comes with age” (p.129), producing an entrenched underclass.

The connection Western hopes to draw between these various claims is not always entirely clear, but taken together one might see them as providing the basis for a condemning and somewhat novel reassessment of our commitment to a policy of “mass incarceration.” PUNISHMENT AND INEQUALITY IN AMERICA offers an array of evidence suggesting that the beneficial effects of widescale imprisonment have been exaggerated and its costs downplayed and ignored.

The book is divided into two major parts. Part I details the extent and causes of the prison boom. Western rejects the conventional assessment that the contemporary surge in prisons and prisoners tracked a rise in crime rates and perpetrators. Despite their high rates of incarceration, “poor and minority men were much less involved in crime in 2000 than twenty years earlier . . . . [A]lthough disadvantaged men became much more law-abiding [over this period], their chances of going to prison rose to historically high levels” (p.50). Western cites different factors in explaining trends in crime and imprisonment, including the growth in incarcerations for drug offenses, and the nation’s overall shift from a rehabilitative to a punitive approach to criminal justice, with the consequence that more criminal convictions resulted in imprisonment, and for longer terms (p.50). [*846]

In Part II, Western evaluates the impact of mass incarceration, most interestingly by uncovering its effects on social inequality – through often creative and original measures. In his chapter on “The Labor Market After Prison,” for example, Western calculates that the stigma and opportunity costs associated with being imprisoned comes with a specific pricetag: African-Americans convicted of crimes effectively lose $86,000 over the course of a lifetime in the form of reduced wages, unemployment, and jobs inferior to those they would have received without a record. Another chapter recounts various ways in which incarceration leads to stresses on family life – breaking up relationships and making marriage untenable.

Much of the early discussion in PUNISHMENT AND INEQUALITY IN AMERICA is both familiar and grim. Scholars like Elliott Currie (1998) have detailed the enormous surge in the number of U.S. prisoners from 1970 to the 1990s, such that today about 7 million, or nearly 6% of the U.S. population are imprisoned, under probation or parole, or otherwise being “supervised” by the criminal justice system. Western’s account of the concentration of inmates amongst certain social and ethnic groups – especially young, less educated black men – is also alarming. “Among black male [high school] dropouts born in the late 1960s,” he recounts, “60 percent had prison records by their early thirties” (p.xii). But again, researchers like Currie and Michael Tonry (1995) have covered these issues.

The most important contributions of PUNISHMENT AND INEQUALITY IN AMERICA are, instead, largely untold stories underlying the prison boom. In particular, Western makes the case that racial and economic inequalities in the U.S. have been exacerbated by the U.S. penal system, especially through hidden costs to inmates and society “not calculated in the usual assessments of criminal justice policy.”

Western’s turn to sociological theory is useful in this context, as he contends that incarceration interrupts the normal “sequence of life course stages – completing school, finding a job, getting married, and starting a family” (p. 4). This approach offers an insightful conceptual framework – providing a sketch of the many obstacles convicts have in becoming integrated with their communities and assuming a socially productive trajectory. In turn, this life course orientation forces us to consider the fate of the prisoner in context – how his (and Western’s focus is decidedly male) incarceration affects not just an individual “life path” but the perhaps surprisingly “extensive kinship ties” of prisoners. The communities and groups indirectly buffeted by imprisonment are important to consider because they represent some of the “most fragile families and neighborhoods” in society (p.11).

Western suggests that many of the dynamics he observes have an ingrained and perpetuating character. Policy makers and voters have “a keen appetite for punishment” (p.195) that is politically difficult to diminish. [*847] Moreover, mass incarceration itself “may be a self-defeating strategy for public safety.” The high percentage of today’s prisoners who come from socially and economically marginal groups, along with the diminished life prospects that greet ex-convicts, “may sow the seeds for more crime, rather than less” (p.168).

PUNISHMENT AND INEQUALITY IN AMERICA is mostly atheoretical, with two consequences that diminish the book’s overall objectives and power. First, the project’s lack of sustained attention to theoretical discussions allows concepts important to the overall argument to remain somewhat nebulous. Thus, Western claims at various points that prisons have replaced other institutions (like labor unions and the military) in collectively shaping young men’s lives and identities. Mass incarceration “institutionalized” and transformed “a chronically idle population of young men with little education” (p.4). But without a stronger sense of what Western means by institutionalization, and what and how black inmates have been “constituted” (p.30), we have some difficulty understanding this and other conclusions. As Western states, “although the growth in imprisonment was propelled by racial and class division, the penal system has emerged as a novel institution in a uniquely American system of social inequality” (p.8). What are the novel features of our institutions of correction? What, exactly, is unique about our system of inequality?

A second effect of the book’s relative disinterest in developing an underlying theoretical argument is that the reader is left somewhat uncertain about the broader implications of the work. Is there something timeless about Western’s observations about the effects of the prison boom and how it has exacerbated racial divisions? As indicated, Western alludes to the self-perpetuating character of our incarceration regime, but without fuller treatment, one is uncertain how seriously to take this contention or what it means for our future.

In addition to these points, PUNISHMENT AND INEQUALITY IN AMERICA presents a somewhat reified picture of “the prison” and the “criminal justice system.” With some important exceptions – such as his account of how opportunistic politicians in the 1960s and 1970s played on white fears about rising crime and civil rights – Western largely excludes the experiences, decisions, and agency of lawmakers, voters, judges, prosecutors, and even prisoners from his story of mass incarceration and rising inequality.

This oversight leads to missed insights. Consider the supposed puzzle Western associates with the continued high rate of incarceration of offenders who are committing less crime than in the past. Students of American politics might account for the apparent non-responsiveness of our penal system in this context by exploring the complex mix of individual incentives, institutional rules, and barriers to collective action that often mark legislative policymaking. In New York [*848] state, for example, despite a longstanding consensus between both parties, along with the state assembly and governor, lawmakers have been unable to amend the punitive Rockefeller era drug laws – in part because the various parties who concur, in principle, that change is necessary, can not agree on how credit for reform will be allocated.

In addition to its utility for scholars, PUNISHMENT AND INEQUALITY IN AMERICA is appropriate reading for advanced undergraduates or graduate students studying criminal justice or public policy. In asking us to consider the hidden meaning of “mass imprisonment” for how we understand and assess crime, inequality, and economic prosperity, Bruce Western trains our attention to a vital set of topics with intelligence, honesty, and originality. To the extent that his important work suffers from any shortcomings of analysis or prose, these limitations are perhaps most disappointing because they may diminish the potential for Western’s ideas to receive the broadest possible audience.

REFERENCES:
Currie, Elliott. 1998. CRIME AND PUNISHMENT IN AMERICA. New York, NY: Henry Holt and Company, Inc.

Tonry, Michael. 1995. MALIGN NEGLECT – RACE, CRIME, AND PUNISHMENT. New York: Oxford University Press.

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© Copyright 2006 by the author, Bruce Peabody.

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BEYOND CAMELOT: RETHINKING POLITICS AND LAW IN THE MODERN STATE

by Edward L. Rubin. Princeton, NJ: Princeton University Press, 2005. 496pp. Cloth. $45.00 / £29.95. ISBN: 0-691-11808-6.

Reviewed by Brian Z. Tamanaha, St. John’s University School of Law. Email: tamanahb [at] stjohns.edu.

pp.841-844

Imagine that an alien anthropologist from another planet lands in the United States to study our political-legal system (admittedly a stretch, but the point will be apparent in a moment). The anthropologist, Dr. Observer, will see that we constantly invoke the term “democracy” to describe our political system. However, beyond noting that votes are tallied in a variety of circumstances in connection with governmental personnel and actions, Dr. Observer will have great difficulty specifying democracy’s precise characteristics. It cannot be about majority rule, since a President can be elected without a majority of votes cast, and the allocation of representation in the Senate thwarts majority rule. It is not a prerequisite for the enactment of legally binding rules, since the vast bulk of government-issued regulations are not subject to a vote by elected representatives, and a great deal of legislation is the product of backroom deals between a few well-placed individuals. Dr. Observer will also be puzzled by another often-repeated notion – the separation of powers – the idea that the legislative branch makes law, the executive branch executes or enforces law, and the judicial branch interprets and applies law in particular cases. It would seem evident to Dr. Observer that the judicial branch makes a lot of law, both in the context of the common law and in the context of interpreting legislation, regulations, and the Constitution. Moreover, the executive branch generates reams of legally binding orders and regulations, and it also makes judicial determinations (in the administrative context). Dr. Observer would be bewildered about the apparently central notion that people have “rights.” Democracy and the separation of powers are manifested in concrete forms – elections and physically separate institutions, respectively – but “rights” have an ephemeral existence, most commonly invoked to lend weight to an assertion or claim of some kind, for example, in a political discussion or a court case.

Additional examples can be given, but the point should be clear. Whichever way Dr. Observer begins – by locating our core political and legal concepts and ideas, then comparing them with the actual structure and actions of government; or by first looking at the actual structure and actions of our government, then examining the concepts and ideas we use to describe government – there will be a starkly evident mismatch between our concepts and the actual form and functioning of our governmental apparatus.

Edward Rubin’s BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE explains these mismatches and identifies their [*842] harmful consequences. Rubin’s thesis is that many of our most fundamental political and legal theories and concepts are medieval inheritances which no longer serve our interests. “The contention in this book,” Rubin writes, “is that our continued use of pre-modern concepts for modern government embodies the thought processes of a prior era, its way of conceiving the world, of creating categories, and of determining the relative significance of different issues. As such, these concepts are an impediment to understanding, and control our current thinking in ways that are genuinely counterproductive” (p.7).

Rubin faces a major hurdle in persuading others of his thesis: the perceptions of readers of the book will be shaped by the very same concepts and categories he contends are misleading. To make a plausible case, Rubin must somehow get readers to step outside of, temporarily suspend, or entirely set aside, many of our taken-for-granted political and legal concepts. This is not a simple feat. My invocation of an alien anthropologist, Dr. Observer, was intended to engender this effect by asking the reader to imagine what things would look like from the standpoint of a naïve observer free of our most basic assumptions.

Rubin’s approach consists of two basic moves. He first asks the reader to “bracket” or “hold in abeyance” our existing concepts (p.8). With respect to each political or legal concept he addresses, Rubin attempts to persuade the reader that such bracketing is appropriate and necessary by exposing its pre-modern origins, showing that it took root or acquired its meaning in circumstances significantly different from today. Rubin then articulates and applies an entirely different conceptual scheme – an “alternative imagery” – with which to frame, describe, and understand a particular aspect of the political-legal arena. To supplant the notion of three separate branches of government, for example, Rubin offers the model of a “network;” he suggests that “legal rights” are better understood in terms of “causes of action;” “human rights” are better understood as “moral demands on government;” “property” is better understood in terms of “market allocations,” and so forth.

Although his analysis is presented in an integrated fashion, it can be disaggregated at various levels. One may be convinced that certain concepts he identifies have indeed exhausted their usefulness or carry debilitating limitations, while others still work well for various purposes; one may find certain of his alternative conceptualizations immediately convincing, while others are less so. Rubin is open to a critical reading of this sort, modestly presenting the book as “an extended thought experiment,” and encouraging readers to render their own evaluation.

Rubin posits that “the government’s purpose is to benefit its citizens” (p.14). “We want the government to be effective in achieving its goals, we want it to do so efficiently, which means with the lowest possible expenditure of resources, and we want it to do so fairly, which means that benefits are reasonably distributed, and limits are placed on the sacrifices individuals are required to [*843] undergo”(p.15). Rubin also posits his methodological approach, asserting that “microanalysis” offers the most illuminating way to study the government. “[I]t begins with individuals, identifying their specific actions that are relevant to the subject under study. It describes these actions in terms of the individuals’ actual positions in the institution—their assigned tasks, the scope of their authority, the forces acting upon them, the information that is available to them, and the consequences of their action” (p.18). Rubin proceeds to tackle one basic political or legal concept after another, showing their limitations, and presenting his proposed replacement. In each case, he concretely identifies the ways in which his proposed alternative allows us to perceive the actual functioning of the government more acutely, thereby helping us improve the government’s performance of its purpose.

To describe Rubin’s argument in this summary form, unfortunately, is to betray the design of the book. The only way to know what the book is about is to read it. This requires a commitment, as it consists of 350 pages of dense – though clearly and smoothly written – text, and more than 100 pages of endnotes (for the truly dedicated). But the reward is worth the effort. Rubin’s bracketing analysis effectively dissolves one standard concept after another, to the extent that one may wonder how the standard understanding has remained so resilient in the face of such contrary facts. His alternative conceptual schemes time-and-again create a novel perspective that produces new angles and insights. To offer just one example, Rubin details a number of ways in which the routine notions that the President is the titular head of the administrative branch of government and that the legislature passes laws and delegates tasks to administrative agencies are misleading. Network analysis instead portrays the President as merely a single individual with a small number of selective relationships through which communication occurs, which then wends its way through agencies via other strings of relationships, often losing something or meeting resistance in the process; Congress consists of individuals and their staffs who send various signals – from laws to letters to statements at hearings – to administrative agencies, constituting complex lines of continuous interaction at multiple levels. The network approach generates a number of policy implications that Rubin identifies.

The alternative conceptualizations elaborated by Rubin draw from existing literature in various fields, so his discussions are not entirely unfamiliar, although he incorporates ideas from an array of subjects that few scholars can match, including philosophy, political science, political theory, legal theory, history, organization theory, sociology, economic analysis, administrative law and theory, and much more. For this reason, the book defies categorization. It is at once a work in sociology, political theory, legal theory, government, and administrative law, but it also takes up rights and property and markets, among other subjects, at a high level of sophistication.

This broad scope lends the impression that the ultimate ambition of the book is [*844] to produce a comprehensive framework for understanding modern law-government. But one major omission bears comment. The book contains just a few isolated references to criminal law matters, with no real analysis of the subject. This is not a criticism, as its depth and breadth of coverage are impressive. But it raises interesting questions, which Rubin does not explore. It might be that the traditional conceptual categories of criminal law still work reasonably well, so Rubin’s thesis does not apply to this area. If this is correct, it would be interesting to learn why criminal law concepts escaped the obsolescence suffered by other fundamental legal and political concepts. There is another intriguing possible explanation for this omission. That a fairly exhaustive book on modern government can be written without an extensive discussion of criminal law – which has traditionally been a central focus of legal theory, as indicated by the commonplace characterization of law as the coercive enforcement of social order – suggests that in the contemporary period the emphases and uses of law have shifted away from what was an earlier primary focus. To put the point another way: law itself, through its instrumental capacity, has become internally differentiated, acquiring a chameleon-like quality, which is on display as Rubin analyzes one context after another. Law has become a mechanism for doing things, just about anything, and that it how it is being utilized today.

Upon completing the book, at least for the readers who are persuaded by Rubin’s analysis, the government, democracy, law, rights, property, and more, all will appear in a different light, at a stripped down, context-based, functioning level that focuses on the interactions between individuals and their consequences. Having this dramatic effect – changing someone’s perception about fundamental matters of law and government in so thoroughgoing a manner – is quite an achievement, one that few books accomplish, much less attempt.

As powerful as the book is, however, the task of persuading people to discard and replace centuries-old entrenched conceptual frameworks is perhaps impossible. Immediately after one sets down the book and reengages in the existing discourse, the old concepts and categories inevitably reassert their dominance. Everyone thinks within, uses, and relies upon these concepts; they structure shared perceptions and understandings at such a deep level that they cannot be dislodged absent an unimaginable, wholesale conversion. Rubin understands this, and he does not, in the end, advocate that our familiar old concepts be abandoned. Instead, he urges that anyone whose job requires taking a clear-eyed, detached view of government and law – social scientists, policy analysts, political and legal theorists, and judges – would benefit from utilizing the alternative conceptual approaches he elaborates. Rubin is correct in this claim. Anyone who desires to understand modern government should read BEYOND CAMELOT.

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© Copyright 2006 by the author, Brian Z. Tamanaha.

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COPS, SOLDIERS, AND DIPLOMATS: EXPLAINING AGENCY BEHAVIOR IN THE WAR ON DRUGS

by Tony Payan. Lanham, MD: Lexington Books, 2006. 220pp. Cloth $65.00. ISBN: 0-7391-1221-X. Paper (2007). $27.95. ISBN: 0-7391-2064-6.

Reviewed by Philip Kronebusch, Department of Political Science, St. John’s University/College of St. Benedict. Pkronebusch [at] csbsju.edu.

pp.839-840

The government agency reorganization that Congress and the President established in the wake of the 9/11 attacks has heightened the relevance of studies that examine how organizations change and resist change. While Tony Payan’s book makes a passing reference to 9/11, its focus is on the response of federal agencies to the “War on Drugs” of the 1980s and ’90s. Using theories of organizational behavior, Payan examines the responses of the Drug Enforcement Agency and Customs (the “cops” referred to in the title), the military (the “soldiers”), and the Department of State (the “diplomats”). As such, the foreign affairs dimension of the War on Drugs is the subject of the analysis. State and local law enforcement, as well as court decisions, are not part of this study.

Payan’s aim is to test two models of organizational behavior. The first is “bureaucratic politics,” which posits that “governmental organizations desire to increase both their budgets and their autonomy to the maximum extent possible” (p.173). The second model Payan intends to test is “organizational culture,” which he defines as “the mission of an organization, the hierarchy of the tasks stemming from that mission, the norms and practices of the organization, and the basic attitudes and assumptions of its members” (p.37). If culture has “any effects on the response of an organization toward external stimuli,” then “culture matters” (p.31).

The bulk of the book consists of Payan’s analyses of several governmental organizations. Often relying on the author’s own interviews with high-level agency officials, these studies provide richly detailed accounts of organizational responses to the demands of the drug war.

In short, different institutions responded differently. While the DEA was not originally intended to have a role in international drug interdiction, during the early 1990s, the DEA’s workforce abroad reached 10%. In contrast to the DEA’s emphasis on the use of investigators and informants to gather intelligence, Customs spent its additional resources on sophisticated surveillance technologies.

According to Payan, the U.S. military resisted the mandate to support the drug war. The Pentagon kept anti-drug initiatives weak and also sought to channel anti-drug money to fund programs that were ill-suited to that purpose. Payan provides detail on the Air Force’s Over-the-Horizon Backscatter Radar Program, which was paid for by the counter-narcotics budget even though this radar could not detect the small, low-flying aircraft that were [*840] used by narcotics traffickers. This example shows that when a mission that the organization finds discordant is imposed, the organization “will use those resources in such a way as to reinforce what the organization is already doing” (p.128).

The Department of State was resistant to the demands of the drug war. Foreign Service Officers, especially those stationed in Latin American countries, viewed diplomatic relations between the U.S. and other countries as already so complex that an emphasis on drug control efforts would be disruptive. However, the State department did play a significant role in order to defend its turf. That is, the State Department maintained tight control over U.S. anti-narcotics efforts in Latin America because not to do so would have meant a major loss of control over U.S. foreign policy. In 1986, Congress required the State Department to “decertify” countries not cooperating with the U.S. anti-narcotics efforts. However, “the overwhelming majority of decertified countries were nations with whom the United States has no diplomatic relations anyway. . . . Iran, for example, in spite of a near-zero tolerance for drug production and traffic, has been decertified continuously” (pp.154-155).

In the conclusion, Payan reconsiders the “bureaucratic politics” and “organizational culture” models of organizational behavior and concludes that both models are necessary to understand organizational responses to the drug war. Organizations do seek to expand their budgets and their autonomy, as the bureaucratic politics model posits, but their pursuit of greater resources “is shaped and colored by the pre-established cultural preferences of the organization,” as the “organizational model” would predict (p.187).

While Payan says, in the preface, that it is not the purpose of the book to show that the drug war is a failed policy, in the end he provides an excellent assessment of why the billions of dollars that have been spent have yielded so little success. Scholars of organizational behavior already know this lesson, but the author’s use of organizational theory and personal interviews to study the drug war provides a new level of detail that shows why policy makers often do not see the results that they intend. The book as a whole, as well as individual chapters, would serve well in undergraduate and graduate courses on organizational theory and public policy.

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© Copyright 2006 by the author, Philip Kronebusch.

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THE PALSGRAF CASE: COURTS, LAW, AND SOCIETY IN 1920S NEW YORK

by William H. Manz. Conklin, NY: LexisNexis Matthew Bender, 2005. 206pp. Paperbound. $30.00. ISBN: 1820563722.

Reviewed by Charles McCardell, Attorney/Law Librarian, West Chester, PA. Email: chasm1 [at] comcast.net.

pp.836-838

William H. Manz holds degrees in law [J.D., St. John’s University School of Law] and library science [M.L.S., Long Island University] and, as of the publication date, holds the position of Senior Research Librarian, St. John’s University School of Law. As a law school librarian, Manz has doubtlessly heard a multitude of students struggling over the facts, issues, holding, and rationale in the 1928 PALSGRAF case. Manz admits that PALSGRAF has been scrutinized for decades by academics with the latest tort doctrine to espouse. He quickly points to the major questions he proposes to address in the Introduction: the “apparently bizarre fact pattern;” the “misleading impressions regarding the contending parties;” the “lives and careers of the members of the bench and bar involved with the case;” and, finally, the “participants within the context of their times.” It is our good fortune that Manz became sufficiently obsessed with PALSGRAF to the point of writing this extremely interesting “Brandeis brief” of the case! It should be noted that Manz regularly rides the Long Island Rail Road . . . one can only presume more alert and cautious thanks to Mrs. Palsgraf’s experience almost 80 years ago.

Remember the case? In Chapter 2, “The Parties,” Manz introduces the plaintiff and defendant. For those attorneys having a senior moment and those non-attorneys blessed with never having to struggle through Chief Judge Benjamin Cardozo’s opinion, what follows is a brief condensation of Manz’s portrait of the plaintiff and her experience.
Mrs. Lena Palsgraf [nee Spilger] was separated from her “dead-beat” husband, living on approximately $10.50 per week [about 45% of a fair standard of living in 1920s Brooklyn], when she decided to take her two daughters, Elizabeth [15 years old] and Lillian [12 years old] to Rockaway Beach for a Sunday outing.

Two or three men attempted to board a moving train while Mrs. Palsgraf and family awaited their train. One of the men dropped a package which caused an explosion on the platform causing a “scale” to fall, striking Mrs. Palsgraf on the arm, hip, and thigh. Although Mrs. Palsgraf and her daughters had been able to walk to the BMT elevated near their home and travel to the Long Island Railroad (LIRR) station where the injury occurred, Mrs. Palsgraf found walking difficult after being struck by the scale. She took a taxi home after the police and an ambulance doctor assisted her.

A “railroad doctor” visited Mrs. Palsgraf the day after the accident. [a former employee interviewed by Manz suggested that the doctor was probably a “claims agent,” because the LIRR was too “parsimonious” to employ a [*837] physician!] Presumably an unacceptable settlement offer or none at all was forthcoming. A neighborhood doctor treated Mrs. Palsgraf for a “nervous condition” over the next two months. With no settlement from the LIRR and unable to continue earning her meager wages, Mrs. Palsgraf sought legal advice regarding suing the LIRR.

Chapter 3 introduces the attorneys for both parties. Complaints about the explosion of lawyers and the differences between graduates of full-time day law schools and those lawyers who attended part-time night schools was noted in a 1921 “major report” (p.13). Dean of the Columbia Law School in 1922, Harlan F. Stone, decried the “increasing numbers of men of mediocre” skill in the profession and stressed the duty of law schools to “dissuade the man of ordinary ability” from starting the study of law (p.13). Some argued that college preparation should be required since many candidates knew little of “literature, history, and American traditions” (p.14). Critics of the times contended that the practice of “ambulance chasing” was the result of an oversupply of new lawyers with “immigrant backgrounds, Catholics, and Jews” (p.15). The almost 50 pages of 814 detailed “Endnotes” for the eleven chapters following the 123 pages of text reflect the diligence and research of the author.

After describing the individual attorneys for each party, Manz moves on to “The Lawsuit” [Chapter 4], “The Trial” [Chapter 5], “The Appellate Division” [Chapter 6], “The First Appeal” [Chapter 7], “The Court of Appeals” [Chapter 8], “The Second Appeal” [Chapter 9], “The Case Reconsidered” [Chapter 10], and, finally, an “Epilogue” [Chapter 11].

Two opinions are reproduced in the Appendices: A) Issued December 9, 1927 by Justice Albert H.F. Seeger for the Appellate Division, and B} Issued May 29, 1928 by Chief Judge Benjamin N. Cardozo for the New York Court of Appeals. A detailed index completes the book.

Manz has captured the times, the legal issues, the history and the players in this tortuous drama, and he tells the reader about the historical development of the courts in which this drama unfolds. For instance, we learn that the New York Court of Appeals, which was nationally renown, was created by the 1846 state constitution following 62 years as the “Court of Supreme Judicature and Correction of Errors” after it had been modeled on the English House of Lords in 1784 (p.71). We learn that the court suffered a poor reputation a decade earlier from criticism by social progressives over the IVES v. SOUTH BUFFALO RAILWAY COMPANY decision in 1911 (p.71).

The contingency fee system was continually under fire from critics (p.29). Palsgraf’s lawyer, Matthew W. Wood, working on a contingency arrangement, filed a complaint demanding $50,000, the usual amount in “negligence actions against common carriers” (p.30). The LIRR’s attorney, Joseph Keany, denied all allegations in Palsgraf’s complaint, but LIRR held a reputation as a defendant with less than clean hands. Just prior to Mrs. Palsgraf’s incident [*838] several people had been injured or killed by what appeared to be negligence on the part of the railroad’s management (pp.7-11). Delay of justice caused by congested courts was another problem for litigants (p.32).
Manz leads the reader through the various stages of the case with personal and legal details enriching the experience.

THE PALSGRAF CASE might suit several academic uses. Historians of the American legal system, students of the 1920s in New York, railroad buffs and scholars looking for a “case analysis” model will find the book quite interesting. Political science and journalism students seeking additional readings for a class project will find the breadth of Manz’s reporting impressive.


CASE REFERENCES:
PALSGRAF v. LONG ISLAND RAILROAD CO., 162 N.E. 99 (N.Y.1928).

IVES v. SOUTH BUFFALO RAILWAY COMPANY, 94 N.E. 431 (N.Y. 1911).

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© Copyright 2006 by the author, Charles McCardell.

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ABORTION AND THE LAW: FROM INTERNATIONAL COMPARISON TO LEGAL POLICY

by Albin Eser and Hans-Georg Koch. The Hague: TMC Asser Press, 2005. 325pp. Hardcover. $90.00 / £50.00. ISBN: 90-6704-197-1.

Reviewed by Francis Regan, Legal Studies, Flinders University, Adelaide, Australia. Email: Francis.Regan [at] flinders.edu.au.

pp.833-835

This potentially fascinating comparative study of abortion law and policy is unfortunately neither a very interesting or useful contribution to modern scholarship. Although a comparative study of modern debates about abortion law and policy would be a useful and timely contribution to the literature, it is not the purpose of ABORTION AND THE LAW. Instead this book is a summary work that reports on a large and long term project that examined and compared the laws and policies of nations in relation to lawful termination of pregnancy.

First some background about the important but little-known research project: The “The Law of Abortion: An International Comparison” project was conducted under the auspices of the Max Plank Institute for Foreign and International Criminal Law. The project began in the 1980s and involved an international survey of abortion law and policy in 64 countries, 26 of them in Europe. The long life of the project means that it has generated many previous publications including books and articles. It is important to note, however, that most of the previous publications were in German. For example, the initial national reports were published in two very large volumes in German in the late 1980s. Other findings have been published reporting on the criminal aspects of the project, including prosecution for illegal abortions. A final book was published in 1999 comparing the legal frameworks in the different countries and updating the national material reported in the 1980s. In sum, ABORTION AND THE LAW draws upon the original national reports and the later updates to build a comparative summary of abortion laws and policies. The relative lack of English publications emerging from the project seems to be the main reason for publishing. But that rationale creates a major problem for the book, as I explain below.

The strength of the work is its careful canvassing of the competing views, principles and legislative considerations in relation to abortion. While it is often at a high level of abstraction, Part One draws upon the national reports to examine a number of issues related to abortion including social services provided and the overall role of family planning. Part Two also draws on the national reports to consider the different regulatory regimes that allow abortion, including the regulation of time periods for legal abortion, consent, procedures, the role of the physician and the range of services linked to abortion such as counseling services. The discussion of these issues is in great detail such that it might be overwhelming to the interested but non-expert reader. Nevertheless, this is a detailed synthesis of the relevant [*834] issues related to abortion in the 64 countries for the period when the material was collected. Part Three draws on the national reports to present a variety of fascinating statistical information relating to abortion, including prevalence of abortion, criminal statistics related to illegal abortion, and trends in prosecution. Finally, Part Four summarises the findings of the study and proposes principles for, and the draft of, a text for a model abortion regulation that the authors argue could be adapted for any society.

Despite these strengths, the book is quite frustrating to read. The main weakness is the age of most of the data. It is in a sense a “time capsule” of a particular period of history. The problem is that, although the 2005 publication date and the title together imply that the content is at least reasonably contemporary, that is not actually the case. In fact the date and title do not relate closely to the book’s content. Indeed, most of the data considered in ABORTION AND THE LAW were collected in the 1980s and are therefore more than 20 years old. The authors explain in the preface that they had collected more recent data but decided not to include them because it would make the book too long. The consequence however is that after reading this book one is little wiser as to the contemporary law and policy of abortion in any of the societies discussed. Similarly, the national statistics presented in Part Three refer to the period from the1960s to the 1980s. By any measure this is a very long time ago. The book could, therefore, more accurately be titled “Abortion and Law in the 1980s” because the focus of most of the content is in fact in that period. In other words, the book is best understood as a contribution to historical abortion scholarship relating primarily to the 1980s. Finally the time capsule nature of the book means that the more recent broader abortion literature is not engaged.

A further frustration lies in the quality of the translation from the original German. At many points the text is quite simply difficult to read and understand. It seems often to be a literal translation rather than one designed for English language readers. It is of course a difficult and delicate process for translators to achieve a balance between the competing objectives of producing an accurate translation of the original text, whilst at the same time making the text easily accessible to the second language readers. But I think the translation here is too literal, and the result is that it is a very dense work to read. The dense prose is not helped by the often very long sentences. For example, for the purposes of this review, I chose a page at random (pp.76-77) and found a sentence 117 words long. It is by no means the only very long sentence in this book.

One other frustration point is worth mentioning: the absence of a genuine bibliography listing the references consulted in writing the book. ABORTION AND THE LAW does include a bibliography of works published that were related to the project. But the absence of genuine bibliography that lists all the additional [*835] reference material used is a peculiar and frustrating omission.

Perhaps the lesson from ABORTION AND THE LAW is that publishing the key findings at the end of a long-term project is fraught with difficulties. This particular project might have been better served by producing a book that was at a minimum shorter, more focused, better translated, and that was clearly identified as an historical study of abortion law and policy in the 1980s.

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© Copyright 2006 by the author, Francis Regan.

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CRITICAL JURISPRUDENCE: THE POLITICAL PHILOSOPHY OF JUSTICE

by Costas Douzinas and Adam Gearey. Oxford: Hart Publishing, 2005. 388pp. Paperback. £22.00 / $44.00. ISBN: 184113452X.

Reviewed by Clifford Angell Bates, Jr. Warsaw University, Institute of the Americas and Europe. Email: c.a.bates [at] uw.edu.pl.

pp.830-832

After reading this book several dozen times, I can still not figure out what Costas Douzinas and Adam Gearey are really trying to say. The book reads more like a disjointed series of papers about different theories of jurisprudence, interjected with the typical leftwing posturing, attempting to mask the fact the authors have really nothing significant to say. Perhaps I am being unfair, in that it is also clear that book in question has clearly suffered from too many revisions on its way to its current form. But I must ask, what is the intention of the authors—to inform or show off? If it is the latter, then they may have very well succeeded. But if it was to be the former, then this book is a spectacular failure.

The book is divided into 5 parts. The first part acts as the introduction, or as Douzinas and Gearey put it, introductions, perhaps because this part has two chapters—one trying to introduce the question of jurisprudence into the text, and the other trying to explain poststructuralism and law. Here we get into their attempt to make a case of what jurisprudence is about and what it really should be about. But their attempt at showing off how smart they are and their jargon gets in the way of the reader trying to understand what they are getting at. Here is a typical example:

Law is written to be applied in the future; interpretation is the life of law. We must abandon, therefore, the Grundnorm and the rule of recognition for the meanings of meaning. We must replace or supplement the technical rules of legal reasoning with the protocols of interpretation or with the stuff of rhetorical tropes and hermeneutical protocols. We must approach the texts of law through the law of texts. (p.7)

Also, the jargon, as seen in that above example, goes like this throughout the book. I do not know. I thought that the principle of hermeneutics was to help clarify understanding, not obscure it, that jargon or specialized terminology should only be resorted to if more everyday words cannot do the job to help make what is being discussed more comprehendible. Also, for people of the left, they love to use such complicated and uncomprehending language that is beyond the classes and people for whom they claim to be speaking. Yes, they speak for them, but by using such language and such jargon, they do not really want to either communicate or be understood by them.

In Part 2, Classical Jurisprudence is the target of discussion. And we have four chapters dealing with the themes of natural law, justice, positivism, and a post-modern theory of judgment. In fact, Chapter 6 on thoughts pointing to a post-modern theory of judgment is the intellectual heart of the book. One could argue it is really what the book is all [*831] about. The previous three chapters were the necessary steps of deconstructing the historical traditions of jurisprudence to get us to where the authors can now show us the alternative. But the 15 pages leave us hungry still and not at all sure what the authors are trying to ultimately say. Perhaps some may say I am not being fair, that such filling out will be found the in the following parts. Honestly, this compels me to say that the job of deconstructing the different aspects of traditional jurisprudence have moments of insight and clarity, helping the reader to understand the limits and defects of those models of jurisprudence. To deconstruct, however, is not enough, and what is reconstructed to stand in place should be better and truer about human action than what is replaced. So this is why the failure to flush out more fully the points addressed in Chapter 6 is greatly disappointing and what reduces this work’s value to those who seek to help bring justice more fully into the realm of practice, which is the point of law.

Let us turn to Part 3, dealing with philosophic differences, in which we have two chapters considering law and race theory and the other on Marxism. So it seems that a post-modern theory of judgment leads us to racial identity politics, in that any rational discourse is ultimately pointless. How can one deliberate about aspects of human action that are outside the realm of choice? As for the attempt to recover Marxism, the attempt to turn the modern theory of Marx into something compatible with a philosophy that comes from Heidegger and Nietzsche, the footwork of great artists. Unfortunately, neither Douzinas nor Gearey is such an artist. Part 4 on Critical Jurisprudence brings in the usual suspects: critical legal studies, and race and post-colonial studies. These chapters on their own in some law review would not be that problematic, but here they just seem like additional flavoring put on top of the main course to add some needed zing. Actually, what results is that the additions overpower and obscure the reader from asking why the holding of this set of prejudices is any more critical than holding contrary or opposite ones? From the logic of their own grundnorms, they really cannot justify their choices, so why are these privileged and not others? I doubt neither Heidegger nor Nietzsche could agree with these authors’ choices.

This takes us to the final part concerning aesthetics and jurisprudence, with two chapters, the penultimate dealing with how psychoanalysis became law and the final chapter on literature and law. A final post-modern flavoring of selves and fiction is given in lieu of a conclusion. So the reader is left dazzled and overwhelmed, feeling that “wow!! These guys are awfully smart.” But if you ask the reader what it is all about, what is the justice the authors seek that other traditional forms of jurisprudence cannot provide, but their critical jurisprudence can?

An answer is illusive, save to say that Douzinas’ and Gearey’s theory offers all the current prejudices of the western left, yet no way to justify holding such prejudices save for, using the language of the authors, a nihilism of power with the mask of aesthetics to dazzle and [*832] confuse. Thus, the book ultimately is full of dazzle and flair but hollow at its core, save for the posturing of left wing academics trying to impress their fellow ideologues.

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© Copyright 2006 by the author, Clifford Angell Bates, Jr.

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THE JUDGE IN A DEMOCRACY

by Aharon Barak. Princeton: Princeton University Press, 2006. 360pp. Cloth. $29.95/£18.95. ISBN: 069112017X; Haifa: Nevo, Keter, Haifa University Press, 2004 (Hebrew). 547pp. Cloth. $28.50/NIS127.99.

Reviewed by Menachem Hofnung, Department of Political Science, the Hebrew University of Jerusalem. Email: msmh [at] mscc.huji.ac.il.

pp.824-829

Aharon Barak, a renowned legal scholar and former judge, retired in September 2006, as Chief Justice of the Israeli Supreme Court. Barak served as Attorney General, a Law Professor at the Hebrew University and is widely regarded as the most influential jurist in the history of the State of Israel. His two books with the same title, THE JUDGE IN A DEMOCRACY, published in Hebrew and in English are both scholarly works, offering a unique opportunity to look at the way a scholar-judge addresses different audiences. The title, THE JUDGE IN A DEMOCRACY, appears in both versions. While the Hebrew title should be literally translated as: “Judge in a Democratic Society,” Barak adopted the title that appears on the later English version to show on the internal page of his book in Hebrew (Books in Hebrew have an English page for international codification).

Although the two books carry the same title and trace their origin to an article published in 2002 in the HARVARD LAW REVIEW, the English version is not a translation from the Hebrew text. The two books have much in common but are different. The main difference appears to stem from targeting different audiences. The Hebrew version written for an Israeli audience, addresses the Jewish nature and the foundations of Israeli democracy. The English version places greater emphasis on universal values, and explains Barak’s judicial reasoning to an audience highly critical of Israel’s legal practices in the occupied territories.

The difference between the two books is evident immediately. The Hebrew volume is a thick 550 pages book, while the English version is a much slimmer 332 pages. Hebrew is a more economical language than English; a translation would require 750-800 pages. It should be noted that Barak could have chosen an alternative. His book, PURPOSIVE INTERPRETATION IN LAW, was translated and published by Princeton University Press in 2005. Choosing to rewrite rather than translate, reflects a conscious choice on the part of the author. Why should a scholar consider writing two versions of a book? A short glimpse at Barak’s biography may provide some clues.

Barak was born in 1936 in Kaunas, Lithuania, and survived the horrors of World War II. In 1947 the family came to Israel and settled in Jerusalem, where Barak completed his elementary and high school education. After high school, Barak served with the Academic Reserve (a military unit combining [*825] university studies with active military duty). During his military service, Barak completed a combat officer’s course, and was awarded the rank of Lieutenant. Between the years 1958 and 1963, he completed his LlB, LlM, and Ph.D at the Hebrew University. In 1968 Barak was appointed Associate Professor of Law at Hebrew University and became a full Professor in 1974. In 1975 Barak was appointed Attorney General and Legal Advisor to the Israeli government. During Yitzhak Rabin’s first term as Prime Minister of Israel (1974-1977), rulings by Attorney General Barak proved instrumental in bringing down Rabin’s coalition. Barak backed a series of investigations of corruption charges involving key figures, including the prime minister. When faced with the prospect of criminal proceedings for having an illegal foreign bank account, Prime Minister Rabin resigned on the eve of the 1977 elections, providing the final blow to Labor’s chances of retaining power.

Barak served for another year as Attorney General under Prime Minister Menachem Begin. In September1978, he was a member of the Israeli delegation to the Camp David talks with Egypt. Despite his resignation from the office of Attorney General and his appointment as a justice of the Supreme Court of Israel in 1978, he was asked by the government to rejoin the negotiating team. Special permission for this purpose was granted by the Minister of Justice and the President of the Supreme Court. Barak proved to be a key figure in reaching and drafting the peace agreement with Egypt.

As a Supreme Court Justice, Barak served on a number of commissions – most notably, the Kahan Commission nominated in September 1982 to investigate Israel’s involvement in the 1982 massacres at the Sabra and Shatila refugee camps in Lebanon. The Kahan Commission found that no Israeli was “directly responsible” for the massacre, but determined that Defense Minister Ariel Sharon bore “personal responsibility,” forcing the removal of Sharon from that office.

As a Supreme Court Justice, Barak became the most influential figure in Israeli jurisprudence, creating new legal doctrines and drawing praise and attacks from different voices within Israeli society. Barak’s claim that every human dilemma can be answered by a legal doctrine has led to several legal doctrines that expanded the Court’s powers of review. Barak was the driving force in lowering the standing doctrine that served as a barrier preventing many citizens from presenting their cases to the High Court of Justice. In the landmark RESSLER case (HC 910/86), the Court acknowledged the existence of a “public petitioner,” providing that whenever a petition raises an issue of important constitutional merit, or when there is suspicion of serious executive violations of the principle of the rule of law, any person is entitled to bring a petition, regardless of one’s personal interest in the outcome of the litigation.

Barak was behind a series of decisions in the mid 1980s and early 1990s that redefined the relationship between all branches of government and established the Supreme Court as a key institution of [*826] the Israeli polity. The initial success brought with it resentment against the court. Barak became the target of ad-hominem attacks, uniting all forces that resisted limits on political autonomy and increased involvement of the Supreme Court in public affairs. Those attacks have intensified after the passing of three basic laws in 1992. In his academic writings, Barak defined this new legislation as a “constitutional revolution,” alarming the conservative and religious parties, which resisted the adoption of a formal constitution.

In 1995 Barak was appointed as President of the Supreme Court of Israel, and during his term, the Court proved to be less activist than before, showing more restraint and caution in political matters. Yet, Barak was involved in several major decisions, among them the KA’ADAN case (HC 6698/95) according Israeli Arabs the same rights accorded to Jews to live in a communal settlement located on state land; the decision to outlaw torture during security related investigations (HC 5100/94); a decision to release Lebanese detainees imprisoned in Israel as “bargaining chips” for securing the safe return of a captured Israeli pilot (FH 7048/97); redrawing the lines of the security fence in the West Bank (HC 2056/04) by taking the approach that the army’s discretion in lands under “belligerent occupancy” is not unlimited, and that the fence’s route must balance security considerations against the needs of local residents. In May 2006 Barak wrote the main minority opinion in a 6 to 5 decision (HC 7052/03) rejecting several petitions against an amendment to the Citizenship Law, which prevents Palestinians married to Israeli Arabs from becoming Israeli citizens or permanent residents (translation to English of several of those decisions and others can be found at the Supreme Court website: http://elyon1.court.gov.il/eng/verdict/search_eng/verdict_by_misc.html ).

Barak earned his early academic reputation as a scholar of private law. Since his nomination to the bench in 1978, he has published extensively on the judicial role. In addition to thousands of court decisions and dozens of articles, Barak has published eight books in Hebrew and three in English.

THE JUDGE IN A DEMOCRACY is the latest volume in this series on the judicial role. Barak sets out in a systematic way, the questions, dilemmas and solutions he has adopted as a judge. He notes the principles that should guide judges in a democratic society, when faced with constitutional questions that have implications over and above the specific concerns of the parties to a legal dispute.

The book is written in the first person, which allows Barak to stray from the kind of formal writing typical of judges. Barak shares his doubts with the reader and explains what process a judge should follow in reaching a decision where several legal options can legitimately be taken. In general, judges do not debate with those who disagree with them. It is rare to find judges who share their doubts or confess to errors, as their decisions seal personal fates and lay down the law. In this sense, Barak is [*827] very candid in discussing his philosophy, doubts, beliefs and conclusions.

Barak sets clear questions at the outset: “what is my role as a judge?”, “are there criteria for assessing the quality of my work as a judge? . . . what is my role, and do I even have a role beyond merely deciding the dispute before me according to the law?” (p.ix). Addressing those same questions in two different versions sets the tone, but from here on the two books take different turns.

The first chapter in the Hebrew version “The Role of a Judge and Judicial Discretion” is missing from the English book. I found this omission unfortunate. In the Hebrew version, Barak lays down his approach to the judicial role. Although the arguments in this chapter appear throughout the English version, placing them at the beginning provides the reader with a better understanding of what comes later. According to Barak, a judge has two primary duties: One is to bridge the gap between law and everyday reality, and the other to protect the constitution and its values. Barak argues that fulfilling this dual role is possible only if the judge possesses a freedom of choice between several possible options. When a judge is faced with more than one option, he must take the one that better bridges the gap between law and life and protects the constitution and its values. While this definition may sound obvious to some scholars of constitutional politics, it is not trivial at all in the Israeli context. Barak has been accused for the last twenty-five years of placing his own values above the language of the law and giving preference to western liberal values when the law was drafted to reflect Jewish values that stand in contradiction to liberal philosophy. Barak’s answer to these claims: I do not force my own views, all I do is to use judicial discretion when the law grants me such discretion and even in this case, I do so according to predetermined, objective and transparent set of judicial guidelines.

Barak does not shy away from issues that are distinctly political in character. In his view, all political questions can be given answers in court. To emphasize this point, Barak refers to the US Supreme court: “I think that the United States Supreme Court rightly decided to hear BUSH v. GORE rather than to abstain on grounds of non-justiciability. The issue was justiciable – both normatively and institutionally – and the court did well to rule on it” (p.188).

Athough initially praised for his willingness to tackle political questions and render decisions in matters previously considered injusticiable, Barak found that interference with the autonomy of elected officials caused considerable public resentment against him. This resentment reached its climax in 1999 when hundreds of thousands of ultra-orthodox Jews held mass demonstration against the Supreme Court and Barak was assigned a bodyguard. Furthermore, at the general elections of 1996 and 1999, religious parties found that attacking the court brings sizable electoral payoffs. Realizing the growing hostility of the religious public to the so called “secular Supreme Court,” Barak paid special [*828] attention during the ensuing years to avoid alienating rabbinical leaders and their followers. Barak has suggested the appointment of one member of the High Rabbinical Courts of Appeals to the Supreme Court, held meetings with rabbinical leaders and students of law in religious college, and relied more than in the past on Jewish law sources while writing his legal decisions.

This attempt to reach out to the religious community and explain his legal philosophy in a way that is agreeable to observant Jews, is evident in the Hebrew version which has sections on Jewish law and on the tension embedded in the phrase, “Jewish and democratic state,” a term that appears in several Israeli basic laws. At the same time, there is no section in the Hebrew book dealing with Israeli Arabs or with the occupied territories. Both issues are raised in the book, but in a minor way compared to the attention paid to Jewish tradition.

In the English version, Jewish tradition and Jewish law are granted minimal treatment. Thus, the Hebrew chapter on “Jewish and Comparative Law” becomes “Comparative Law” in English. The English version includes a chapter lacking from the earlier Hebrew book. This is Chapter Sixteen on “The Judicial Role and the Problem of Terrorism.” In a 23-page chapter, Barak explains at length the Court decisions on terrorism and occupation. He reaches out to an international audience which has become increasingly critical of Israel’s policies and of what is conceived as the Court’s providing a legal seal of approval to practices that harm basic human rights. While Justice Barak is concerned with preserving the fragile Israeli democracy, scholar Barak, when writing in English, addresses the international legal community in which he is a respectable member.

Although only a handful of readers is likely to read both books, comparison between the two has proved to be an intellectual adventure; one basic text by the same author, written in two languages and addressing two different audiences. The Hebrew version explains Barak’s legal philosophy while speaking to a Jewish audience suspicious of the Court and seeing it as a bastion of western liberal values. The English version targets an international audience, which sees Israel as a closed society somewhat detached from universal values. At the end, this exercise of addressing different audiences in one book with two versions is quite successful. Both versions are engaging and intellectually stimulating. In either language, THE JUDGE IN A DEMOCRACY should be a must read in any course or research on judicial and constitutional politics.

REFERENCES:
Barak, Aharon. 2005. PURPOSIVE INTERPRETATION IN LAW. Princeton, NJ: Princeton University Press.

CASE REFERENCES:
H.C. 7052/03 ADALAH v. MINISTER OF INTERIOR, (yet unpublished, decision given on May 14, 2006).

Cr. A. 7048/97ANONYMOUS v. MINISTER OF DEFENSE, 54(1) P.D. 721. [*829]

H.C. 2056/04 BEIT SURIK VILLAGE COUNCIL v. GOVERNMENT OF ISRAEL.

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

H.C. 6698/95 KA’ADAN v. ISRAEL LAND AUTHORITY, 54(1) P.D. 258.

H.C. 5100/94 PUBLIC COMMISSION AGAINST TORTURE v. GOVERNMENT OF ISRAEL, 53(4) P.D. 817.

H.C. 910/86 RESSLER v. MINISTER OF DEFENSE, 42(2) P.D. 441.

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© Copyright 2006 by the author, Menachem Hofnung.

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THE CONSCIOUSNESS OF THE LITIGATOR

by Duffy Graham. Ann Arbor, MI: The University of Michigan Press, 2005. 152pp. Cloth $22.95. ISBN: 0-472-115000-6.

Reviewed by Dawn M. Chutkow, Department of Government, Ph.D. Program, Cornell University. Email: dmc66 [at] cornell.edu.

pp.821-823

Too often the study of political institutions and the actors that inhabit them takes place from a remote distance. Although objectivity is both a valuable and necessary component of academic analysis, it is equally important to understand the way in which human organizations actually operate “on the ground.” Duffy Graham offers just such a view of civil litigation in his book, THE CONSCIOUSNESS OF THE LITIGATOR. While the book purports to be an analysis of the moral struggles faced by attorneys when their values and those of a client diverge, what makes it most interesting are the revealing details and observations offered by the lawyers Graham interviews. These details suggest that scholars should take seriously the proposition that the complexity of legal outcomes may not be so easily captured by the judicial ideology measurements and case coding exercises that are often the favored analytic tools of the academic trade.

Graham begins with two chapters discussing the historical evolution of the attorney’s place in American society, and the origins of judicial realism. Both sections are nicely crafted summaries of voluminous topics, and certainly will have appeal to a wider audience seeking an introduction to the ubiquity of lawyers and the modern understanding of what it means when a judge says she is applying the law. These chapters are somewhat disjointed from the rest of the book, but stand alone nicely as separate essays. The section on judicial realism, which focuses primarily on Benjamin Cardozo’s famous lectures at Yale University, later compiled into THE NATURE OF THE JUDICIAL PROCESS (1921), actually is more in keeping with the rest of Graham’s volume, as it represents an acting judge’s reflections on how he practices his craft. Cardozo’s observations, along with earlier writings by Justice Oliver Wendell Holmes, helped dispel the notion that judging is a purely objective endeavor. This view, that engaging the law is a context specific, subjective activity, is taken for granted by modern scholars, as evidenced by the academic prevalence of both attitudinalism and positive political theory’s strategic descriptions of court behavior.

The meat of the book is in the final chapters, in which Graham interviews fellow attorneys about their vocation. These interviews are not presented, nor should they be taken, as comporting with the standard social science rigors of survey data. Graham selects eight civil litigation practitioners and uses their responses as illustration. His intent is to show the tension that often arises between an attorney’s view of a dispute, its proper legal resolution, and its overall social palatability, and the view of these matters held by the client. Because law [*822] practice is a service industry, and the attorney operates as agent, this tension often means that lawyers take cases, and pursue legal strategy that they might otherwise reject if they were making the final legal decisions alone. Graham makes a fair amount of this tension, and the rationalizations necessitated by following clients’ directions. While this is understandable, the book might have been better served by a more explicit acknowledgment of the economic nature of lawyering and the systemic implications of that reality. One of legal realism’s most powerful children is the economic analysis of law, and that discipline argues strongly for the larger value of aligning costs and benefits, regardless of the attorney’s discomfort as agent. Clients bear the costs of advice not taken, and once responsible legal advice is given, it is the client who stands in the best position to assess the compromises in terms of the risk, cost, and benefit that civil litigation entails.

Aside from the ambivalence with which attorneys sometimes approach their task, Graham and his interviewees have some interesting things to say about the nature of litigation. Most of this should be fairly well known, but nonetheless it bears emphasizing when current academic study places so much focus on judicial behavior in legal systems. First, these anecdotes should operate as a cautionary tale for those scholars who take for granted the accuracy of case coding and the databases it generates. Litigation rarely manifests as a single question. Throughout, the interviewed attorneys describe disputes that consist of multiple and intertwined legal issues, and arguments framed in terms that often obscure the essence of the underlying case. Litigation that is in fact about Chinese families seeking restitution from Japanese corporations for the wartime virtual enslavement of their relatives may take shape in court as a dry procedural issue in which the judge is only asked to address the parameters of the court’s jurisdiction. This conundrum has been discussed elsewhere, Barry Friedman’s fine article, “Taking Law Seriously” (2006), comes immediately to mind. However, the anecdotal support here highlights that for court scholars this should not be a minor issue.

Second, the observations recounted here emphasize the attorney’s role as the legal system’s gatekeeper. Lawyers not only pursue litigation, but they also are often the mechanisms by which claims are shaped or kept out of the system. In this role attorneys act as both educators and arbiters of how the law operates, persuading clients to pursue only certain aspects of cases or to settle others. Disputes that advance past this gate-keeping function, sometimes against the attorney’s advice, are cast to fit within existing legal categories. This process of winnowing and framing that occurs at the hands of attorneys before a dispute ever enters the court is a largely understudied and overlooked phenomenon.

What this book underscores for social and political scientists is the importance of understanding one’s subject, not only from a theoretical perspective, but also in practical, real-world terms. Graham’s purpose is to show that attorneys struggle with and rationalize the choices they make on behalf of their clients. That [*823] struggle is certainly worth consideration. For the academic observer, however, there is also much value in attending to how these struggles are described and what the relationships and actions taken tell us about the way law operates in the sometimes messy but real world of those who populate the legal system.

REFERENCES:
Cardozo, Benjamin N. 1921. THE NATURE OF THE JUDICIAL PROCESS. New Haven: Yale University Press.

Friedman, Barry. 2006. “Taking Law Seriously.” 4 PERSPECTIVES ON POLITICS 261-276.

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© Copyright 2006 by the author, Dawn M. Chutkow.

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THE GEOGRAPHY OF LAW: LANDSCAPE, IDENTITY AND REGULATION

by William Taylor (ed.). Oxford and Portland: Hart Publishing, 2006. 176pp. Hardback. £35.00/$70.00. ISBN: 1841135569. Paper. £22.00/$44.00. ISBN: 1841135577.

Reviewed by: Gad Barzilai, Jackson School of International Studies and Law, Societies and Justice Program, and Comparative Law and Societies Studies Program, University of Washington. E-mail: gbarzil [at] u.washington.edu.

pp.817-820

Space is not merely an artifact of descriptive topography, since geography is a political space that engineers various facets of social consciousness, localities and perceptions of our instantaneous environment. Studies of geography and law unveil the sociopolitical interests that structure our land environment. Accordingly, they may induce more egalitarian paths to frame and utilize the territorial space. Scholarship of law and geography should deconstruct the faulty concept as if geographical spaces are given and reflect no deeper social practices. More generally, students of law and society would be expected to argue that geography is part of power processes through which control and domination have been procreated. The unsolved dilemma is how, through which mechanisms, geographical representations – as maps and architecture – are constructing, framing, generating, challenging and reforming sociopolitical power.

The studious efforts to explore the regulative and constitutive meanings of geographical designs have gained a significant place in law and society scholarship through research of inter alia local communities, property, public policies and globalization. The edited volume on THE GEOGRAPHY OF LAW: LANDSCAPE, IDENTITY AND REGULATION is a significant endeavor to collect a series of case studies from around the globe and mainly in Australia. It explicates the likely interactions between geographical representations of the landscape, individual autonomy, law, and identity (p.1). Hence, the volume underscores possibilities of social constructions of realities (p.4) through landscape engineering and reproduction. Accordingly, its editor, William Taylor, states: “each contributor was asked to respond to one key assertion: that the design of the built environment is crucially linked to issues of identity and autonomy insofar as they are means by which desires and needs are recognized as such – a way in which our ‘inner’ lives are reconciled with our ‘outer’ world” (p.5).

Thus, the reader may benefit from a variety of local practices of landscape social engineering that intellectually spot the manipulative, political driven, essence of legalistic framing over geography. Like numerous edited volumes, THE GEOGRAPHY OF LAW should be examined through a theoretical perspective. Such a gravity point, immersed in a theoretical perspective, is not clearly articulated through the various well-documented case studies. Since the essays were invited, based on a wide-ranging intellectual guidance, the book is [*818] missing a concrete theoretical argument that underlines and conceptually unifies its essays. However, the volume enhances our ability to unveil the political interests behind the legalization of geographical space and to depict its ramifications on land design.

Richard Mohr’s chapter on “Territory, Landscape, and Law in Three Images of the Basque Country” is an excellent exploration of the articulation of domestic national conflict through maps and other graphic representations of territories under contention in modern Spain. Relying on ‘imagined communities’ by Anderson (1991), and influenced by Foucault’s (1980) deconstruction of state national sovereignty, the chapter aims to demonstrate how the Basques have endeavored to constitute their own territorial autonomy through procreating their idiosyncratic, non-republican images of the geographical space. It vigorously illustrates that minorities may frame graphical representations of the landscape to dispute the ideological myth as if a unified sovereign law is the sole normative constituent of the modern nation-state: “Where does this law come from? Weber has said that the modern state is further distinguished by its ‘monopoly on law creation’ (Weber, 1978: 705) . . . . The other images challenge uniform Spanish jurisdiction by depicting more complex relationships between the law, the land and its people. These suggest sources of law which are not common ‘law of the land’, but which are more plural or personal” (pp.22-23).

Through such de-centered theoretical perspective of legal pluralism this volume should be studied and the merit of its various case studies should be evaluated. We are encouraged to look into the ways in which legal pluralism is represented or marginalized in geography, and how those representations and misrepresentations have generated political power and challenged it. Michael Levine analyzes traditions of taste and judgment, while John MacArthur explicates traditions of gardening and parking. In “Visualising Comfort,” William Taylor depicts domestic housing planning as a means of controlling privacy and enabling more autonomy and safety. In his analysis of how domestic planning has changed since the second half of the 19th century to become obsessed with individual autonomy and physical separateness, Taylor asserts: “Whereas initially, these requirements of separateness may have entailed a physical separation – necessitated, say, by the desire to prevent a building on fire from damaging its neighbors or to prevent the spread of infectious ‘miasmas’ – separation came to organize visual concerns by the century’s end“ (p.68).

Althuogh Foucault is referenced in the chapter, as in many other essays in this volume, it remains opaque to what degree the privatization process in domestic households is harmful to human freedom. Is law that regulates building private housing through emphasizing separation and individual space damaging our social consciousness? This fundamental dilemma needs some comparative investigation but remains vague, as the author asserts: “The family home may be thought to be a site for the analysis of [*819] power at a microphysical level, the site, say where medical, psychiatric and educational discourses articulate a range of bodily and building practices. One must be mindful, however, that it is likewise the site for imagining the lingering allure of individuality, autonomy and personal freedom constitutive of the self” (p.81).

George Pavlich and Peter Kuch elucidate how spaces can be localities of accusation and foci of stereotypes against minorities and endogenous people. While Pavlich’s explorations are more historical and only loosely connected to the volume itself, Kuch’s piece addresses the collisions and cultural mutual stereotyping of both the colonial power and the endogenous minorities towards each other. Each considers the other to invade its space; each considers the other as an existential threat. Indeed, the geographical space is a battlefield through which endogenous communities and the imperial power conflict over power and rights. Michael Austin explores the political geographical landscape in Maori views in New Zealand [Aotearoa in the natives’ language]. The Treaty of Waitangi from 1840 has hampered and marginalized the Maori ownership of land. Yet, the Maori have used architecture in a way that molds and generates their unique identities in ways that also express dissent.

Akin to the Basques in Spain, the Maori have expressed their tradition through counter-hegemonic representations of the landscape. These representations have also shaped the Maori social consciousness as a minority that opposes majoritarian ideology. This has been reflected in a special type of Maori architecture that has underscored collectivism at the expense of privacy and individualism. The same idea of geographical representation as a counter-hegemonic process is explored in Richard Blythe’s chapter on “The Idea of the Town.” Blythe depicts the process through which European colonial precept of space dominated architecture in 19th century Australia. He especially emphasizes the titling process through which land was formally divided with ignorance of the needs of the endogenous minority.

The modes of public use of landscapes are certainly not given. They are rather manipulative processes of both inclusion and exclusion that reflect social practices and the important distinction between hegemonic groups who have power and the have nots, as Kristine Miller demonstrates in her study of building architecture in NYC. She asserts: “while a landscape architect might design a space that has the flexibility to support various uses, offers physical accessibility, and provides spaces that can be temporarily co-opted by different individuals and groups, that same site can be made inaccessible by what constitutes appropriate ‘use’” (pp.140-141). Conflicts over political control of space lead people to conceive what the space is and what they can (and cannot) do in it. As I have noted in referring to other chapters in this book, because it molds public consciousness, geographical space is subject to political control and political manipulation. [*820]

Whether law is reformed through the design of landscapes depends on the success of counter hegemonic communities in offering alternative readings, constructions and usages of the land. This book significantly shows how geographic representation is a crucial intermediating factor between political power, on the one hand, and resistance to it, on the other hand.

REFERENCES:
Anderson, Benedict. 1991. IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM. London: Verso.

Foucault, Michel. 1980. “Questions on Geography” in C. Gordon (ed.) POWER/KNOWLEDGE. SELECTED INTERVIEWS AND OTHER WRITINGS, 1972- 1977. New York and London. Harvester Wheatsheaf.

Weber, Max. 1978. ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY. (2 volumes). Guenther Roth and Claus Wittich (eds). Berkeley: University of California Press.

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© Copyright 2006 by the author, Gad Barzilai.

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PROFILES, PROBABILITIES, AND STEREOTYPES

by Frederick Schauer. Cambridge: The Belknap Press of Harvard University Press, 2006. 359pp. Cloth (2003). $29.95 / £19.95 / €27.70. ISBN: 0-674-01186-4. Paper (2006). $18.95/£12.95/€17.50. ISBN: 0-674-02118-5.

Reviewed by Sawyer Sylvester, Department of Sociology, Bates College. Email: ssylvest [at] bates.edu.

pp.811-816

Frederick Schauer begins his book by acknowledging that it is based on an unfashionable idea: namely, that justice may be done more often by legal generalization than by an attempt to tailor outcomes to particular cases. So popular is the assumption that we must take into account the special nature of individuals or situations that we often refer pejoratively to its opposite as “stereotyping” or “profiling.” However, Schauer points out that the practice of “thinking like an actuary” or acting on the basis of generalizations is far more common in life and in the law than its opposite. Indeed, a sociologist might make the even stronger argument that behavior on the basis of constructed types is part of the human condition.

Schauer also acknowledges that a preference for making decisions based on generalizations does involve some caveats. First, generalizations, especially those used for policy decisions, must have some adequate empirical basis. Second, even statistically sound generalizations ought not to be acted on if that action would be deemed morally wrong. This, in fact, is a major theme of Schauer’s book. He uses two examples to illustrate the difference between cases wherein it might be wrong and where it might not be: eastern European Jewish women who are denied health insurance because of a generally greater propensity to certain forms of cancer, and English soccer fans who as a class have been denied admission to Continental games because of a greater history of hooliganism. There may be other distinguishing features, but Schauer chooses to distinguish the two cases morally on the basis of the far more serious consequences and cost to individual exceptions in the former than in the latter. However, he states that exclusion in neither case can be deemed morally wrong based on the mere use of generalizations or even generalizations that might be empirically invalid.

But if generalization is not only pervasive but permitted even in the law, is the law still a unique case of social policy because of the consequences for non-conforming cases? The law’s generalizations, like all others, inevitably produce mistakes. But must the law, because of the potentially greater harm of those mistakes, take special pains to provide a system for correction in individual cases? Schauer suggests that many would think it must philosophically, and has institutionally. For example, he believes that Aristotle’s concept of aequitas requires such a corrective, assuming that the law achieves justice only when it is prepared to rectify its errors. He also sees such a principle institutionalized in the mediating authority of the Roman [*812] Praetor and in the rise of the courts of Chancery in England (although, in the latter case, the system may have been as much inspired by the Crown’s desire to hold on to some of its prerogative authority in the face of the growing power of the law courts as it was any benevolent concern for the law’s harsh bite).

The mistakes to which some believe the law is given often arise because laws tend to be over-inclusive, and perhaps some system of equitable adjustment for the individual hard case is needed to provide a remedy. Yet, there are other ways to look at the problem. Schauer refers to the case of the pit bull. Apparently there are data from which one may infer that pit bulls, as a breed, are likely to be more vicious than other breeds of dogs. On this basis, some jurisdictions have simply made it illegal to own a pit bull. However, pit bull owners say that such laws are overly inclusive and that there may be many pit bulls that are not vicious. The solution, they say, would be to prohibit ownership of only those dogs that have injured people – an example of the venerable legal maxim that every dog gets one bite. Should society not wish to bear the cost of multiples of the “one bite,” all pit bulls, or all dogs for that matter, could be tested for vicious traits, and only those testing positive would be prohibited. In the second and third cases, the legislation is tailored more narrowly, but, Schauer points out that there is no essential difference among these policies in terms of generalization. They all involve the use of some class characteristic to proxy for predicted behavior, and all are capable of making mistakes.

Schauer claims that there is also an evidentiary side to the generality/particularity debate, in the distinction between “direct” evidence and evidence from which conclusions can be drawn only by inference – more frequently, these days – statistical inference. Schauer suggests that judges often see the law as part of the “all or nothing world” we conventionally inhabit (guilty or not guilty, for plaintiff or defendant, admissible or inadmissible, contract or no contract), even though the decision-making process in law is often more a matter of inference than commonly realized. In part, this is because of the courts’ distrust of “naked statistical evidence” and a preference for such direct evidence as eyewitness testimony – even when the latter is shown to involve its own process of inference (often faulty) from visual cues (often misapprehended). Courts will likely prefer the expert willing to say, “I have compared the two fingerprints, and I am convinced there is a match,” to one who is only able to say, “I have compared the two fingerprints and studies have shown that in cases where there are this many points of similarity, there is an eighty-seven per cent chance of a match.” The dark note is, as Schauer points out, that even though decision-making based on individualization is more intuitively appealing because decision-making by generalization is thought to have the greater capacity for error, more actual errors have been shown to occur by the former than the latter. [*813]

Schauer uses two more extended examples of his initial observation that decision-making by rule or generalization is not in itself morally questionable, but only questionable on other grounds. Take the case of airline pilots forced to retire by the Age-Sixty Rule, and women being denied admission to a military school on the basis of gender. In the first case, the Age-Sixty Rule forced pilots to retire because it was believed that age was valid proxy for a decline in some of the skills necessary for safe flying. Although the relationship between age and skills was not spurious, it was claimed by the pilots to be arbitrary by being overly inclusive. One solution raised was to test all pilots at a certain age for the necessary skills. But this only shifts the problem of arbitrariness from testing to selection for testing. Actually, using age as a proxy would always be arbitrary. But we are quite willing to use it in other areas such as voting age, driving age, drinking age, and the like. If not spurious and not arbitrary, then age may simply be a category, the use of which is inherently unjust. Schauer thinks not, and again, perhaps because of a cost/benefit ratio (the cost of a few undeserved retirements each year against the cost of undiscovered age-related deficiencies in the cockpit) or, possibly, because its use just does not shock the conscience in the way other forms of discrimination do.

Contrast this with the opinion by Justice Ginsberg in UNITED STATES v. VIRGINIA (1996). This case involved an effort by Virginia Military Institute to exclude women from its program based on the claim that women lacked, among other things, the necessary “adversarial” traits to succeed in the program at VMI and that gender was a valid proxy for that deficit. The Court found that VMI had engaged in unlawful discrimination, and Schauer suggests that Justice Ginsberg reasoned as follows: that the relevant variable – here, “adversarial” traits – might well have been a product of discrimination itself and came about through acculturation rather than being genetically determined. In addition, Schauer sees in the Court’s opinion reluctance to accept a rule which is overly inclusive in this case where there was no similar reluctance with pilots, and a willingness to mandate that any woman wishing to apply to VMI should be allowed to demonstrate individually that she had the traits necessary for the program. He suggests that this difference in approach by the Court was occasioned by the fact that the use of gender as a proxy has historically been “routinely exaggerated and routinely overused.” It has thus been seen as a more suspect category. Once again, it is not the use of generalizations per se that is the issue, but the uses to which they are put.

Perhaps the best known use of generalization in law enforcement, and one of the most controversial, is profiling. Psychological profiling is used in the investigation of serial murders and rapes. Geographical profiling is used in connection with a routine activities approach to other predatory crimes. And for even a longer time, profiling of a sort has been the basis of parole and probation prediction schemes. But controversy seems to have centered on the sort of profiling that picks out subjects to be stopped and questioned by [*814] law enforcement officers. Schauer discusses the two examples: drug courier profiles and profiling used to justify traffic stops.

A drug courier profile was involved in UNITED STATES v. SOKOLOW (1989). Andrew Sokolow was stopped and questioned at the airport because his appearance and demeanor fit the multi-faceted written profile in use by the DEA. A majority of the US Supreme Court upheld his subsequent conviction, concluding that fitting the profile gave rise to “reasonable suspicion” necessary for a stop-and-frisk. Justice Marshall, however, dissented on the basis of a preference for reasonable suspicion based on the experience of individual agents rather than the collective experience reflected in profiles. Schauer again points out the fallacy in concluding that these two types of profiling differ in that one is based on generalization and the other on particularity. In fact, they both generalize, but one does so on the basis of multiple items, each having some proven contribution to the entire profile, as against generalization based solely on accumulated individual experience. Not only does the former process generally prove to be more accurate, but the latter easily leads to abuse in the hands of those whose experience includes the exaggerated use of suspect categories in profiling, such as race or ethnicity. Schauer’s example of the latter is the scandal in the New Jersey State Police where African-American drivers were stopped disproportionately based on a profile which seemed to credit race as a proxy for the likelihood that there was contraband in the driver’s vehicle. The profile, so called, was probably no more than the idiosyncratic and unconstrained judgments of the officers involved.

Schauer asks, what if race or ethnicity, however suspect, were merely one of a number of factors, each of which had empirically verifiable predictive value? He suggests that, in such a case, we should make the same cost/benefit analysis as before. How much predictive accuracy will be lost by excluding race or ethnicity because of the special burden placed on persons in those categories? And, if there is a loss, is there some way to make up for it even if there are extra burdens created but more generally shared? Race, for example, might be removed from an airport profile, but all passengers would then be given greater scrutiny, even at the cost of more time waiting in line for everyone.

Generalization, as a whole, in human behavior accomplishes the necessary task of simplifying a complex world of perceptions by forming classes of things and allowing one to behave toward others based on class characteristics with a fair approximation of correctness toward the individual. In social behavior, we respond to people, not with a full appreciation of their individuality but in accordance with some stereotypic image we have created of them. There is a basic and necessary economy in all this. And it is, in part, the same economy that drives the law to make demands and create remedies that fit broad classes of persons and behaviors rather than to tailor individual remedies for each person or situation. [*815]

But Schauer asserts that the law does something more by the use of generalization, that it can exemplify certain values – equality, for example. Treating like cases alike is seen by many as an element of justice. But Schauer notes that treating unlike cases alike is probably closer to core values of the law. When the Declaration of Independence states, “We hold these truths to be self-evident, that all men are created equal,” the statement is descriptively invalid but proscriptively necessary to the implementation of individual rights. It is a rule which states that certain distinctions among human beings, however relevant, will be treated as irrelevant.

Schauer offers another, and more controversial, example of cases in which the law treats presumptively relevant conditions as legally irrelevant. This would be mandatory sentencing schemes established by legislatures to act as a brake on judicial discretion. The most famous of these schemes (or infamous, depending on your point of view) is the Federal Sentencing Guidelines established by the Sentencing Reform Act of 1984. These guidelines severely restrict the power of Federal judges to construct sentences individualized for persons or circumstances. Some differences may be taken into account, but only within the constraints and categories of a sentencing grid.

Many judges have complained about the Guidelines, not only because they correctly see a major portion of their authority as judges being hijacked, but also out of a recognition – probably gained from experience – that there are some cases where justice, fairness, mercy, and simple good sense demand an outcome not available under the Guidelines.
What, then, can be said in support of such legislation in the face of the hard cases it produces?

Schauer answers that, much like the proven superiority of actuarial prediction over clinical prediction, sentencing by the Guidelines may, in the long run, simply make fewer mistakes than a less-than-perfect judiciary. And he reminds us that judicial discretion has itself been known to produce results which are unjust, unfair, merciless, and simply nonsensical. Perhaps “Equal Justice” needs to be “Under Law.” Schauer also points out that uniformity by itself my be intrinsically valuable in a legal system and may also serve as a reminder that “at a moment of enormous significance – determining how much of the state’s power will be brought to bear against those who transgress its laws – we are all in this together” (p.261).

PROFILES, PROBABILITIES, AND STEREOTYPES is an excellent book. Although it seems fashionable these days to mine an otherwise creditable work for something with which to find fault, I can find nothing. The writing throughout is clear and felicitous, the logic tight, and the historical illustrations apt. It is a book which could easily contribute to a course in legal philosophy or sociology of law, or be a focal point around which one might arrange other readings to build a seminar on the subject of the book alone. It is highly recommended. [*816]

CASE REFERENCES:
U. S. v. VIRGINIA, 518 U. S. 515 (1996).

U. S. v. SOKOLOW, 490 U. S. 1 (1989).

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© Copyright 2006 by the author, Sawyer Sylvester.

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AMERICAN INDIAN CONSTITUTIONAL REFORM AND THE REBUILDING OF NATIVE NATIONS

by Eric D. Lemont (ed). Austin, Texas: University of Texas Press, 2006. 360pp. Hardback. $55.00. ISBN: 0-292-71281-2. Paper. $21.95. ISBN: 0-292-71317-7.

Reviewed by Jill Norgren, emeritus, Department of Government, John Jay College and University Graduate Center, City University of New York. Email: jnorgren [at] gc.cuny.edu.

pp.807-810

In 1887 the U.S. Congress passed the Dawes (Indian Allotment) Act, legislation designed to destroy Native American governments, allot tribal land, and assimilate Indians into American society. Tribal governments were abolished despite the resistance of tribes, 90 million acres of tribal land passed into the hands of non-Indians, and Indian children were taken off to American-run boarding schools where their mouths were washed with soap if they spoke the language of their parents.

In 1934 Congress terminated this “Americanizing” policy with the passage of the Indian Reorganization Act (IRA). With this legislation Washington acknowledged that the Dawes Act had been a disaster. The IRA provided for the expansion of the remaining tribal land base and the reestablishment of tribal governments abolished by earlier legislation. In 1975 the United States government further altered its policy toward Native American sovereignty, again increasing its commitment to tribal independence and self-governance. In response many Indian nations began a process of amending existing constitutions as well as writing new ones in order, according to Eric Lemont, “to foster greater governmental stability and accountability, to increase citizen support of government, and to provide a firmer foundation for economic and political development” (p.xi). In 2000 the Harvard University Project on American Indian Development, recognizing the importance of these efforts, launched an initiative to investigate the constitutional and governmental reform experiences of a few of these tribes including the Cherokee Nation of Oklahoma, the Hualapai Nation, the Navajo Nation, and the Northern Cheyenne Tribe. Following a symposium at the Kennedy School of Government, a working group of constitutional reformers from a dozen Indian nations was formed so that experiences and ideas for strengthening American Indian constitutions and constitutional conventions might be shared. The edited volume organized by Lemont is largely the product of papers and presentations from this working group. It is a book that will be of interest to students of comparative constitutionalism and North American studies.

Lemont divides the volume into three parts. Essays in the opening section explore the historical, cultural, economic, and political motivations behind these recent reform initiatives. Short chapters by scholars Duane Champagne, David Wilkins, and the late Elmer Russo introduce the complex [*808] nature of reform, particularly when trying to generalize about the experiences of the 562 federally recognized American Indian nations and Alaska Native villages that, according to Wilkins, “have yet to experience, and most likely never will experience, complete decolonization” (p.46). Russo’s contribution is an interesting one that has already drawn attention because it questions the conventional view that the Bureau of Indian Affairs thrust “model” Indian Reorganization Act-era constitutions upon unwilling tribes in the years following its passage in 1934.

In this section as elsewhere, the valuable firsthand accounts and insights of tribal leaders, past and present, complement the more formal essays. Their contributions provide a map of what is happening “on the ground.” Their concerns vary but most of these leaders highlight the importance of constitutions that fully appreciate tribal culture. They predict that the failure to honor cultural values and practices in such documents risks the creation of governments that citizens will not support. What constitutes tribal culture, however, is not easily determined. According to former chairman Larry Foster at Navajo Nation, for example, three factions must be heard from: Christian Navajos, traditional Navajos, and followers of the Native American Church.

Other tribal leaders are frank in acknowledging that constitutional initiatives have been driven by economic and investment concerns. John Peters, a member of Mashpee Wampanoag writes, “the constitution really isn’t about us, it’s really about [investors], and about them having confidence and investing in us” (p.101). Cherokee Ross Swimmer says that the funneling of Great Society dollars “to Indian Country” required a tribal organization to distribute it which, in turn, required a constitution. More recently, the wealth created by gaming has created the need for constitutions which would determine who, within the tribe, is eligible for per capita distributions.

The determination of tribal membership constitutes one of the most difficult issues confronted by Native Americans. In the second part of this book law professor Carole Goldberg offers a clear, useful overview of the questions posed in designing citizenship requirements. Should blood quantum or a minimum percentage of ancestry requirement prevail? Should social incorporation into clan or kinship group matter as much or more than ancestry? Should cultural knowledge and commitment trump blood as criteria for enrollment? And what of individuals who live off-reservation? Goldberg is sage and respectful in suggesting that choices will, and should, vary according to individual Indian nations’ norms and values which, she writes, “are the only true guide for legitimate governance” (p.129). The determination is critical not only as it determines who shares in the wealth of the tribe but also, as in most societies, who may vote, hold office, or claim tribal benefits such as healthcare.

The firsthand accounts that follow Goldberg’s overview testify to the painful and divisive nature of the discussions concerning tribal [*809] membership. Jaime Barrientoz of the Grand Traverse Band of Ottawa and Chippewa writes that the membership issue is the most controversial and sensitive of all reform questions. He says that people are “concerned about . . . enrollment numbers as that translates into dollars . . . it’s very disruptive, the [gaming] benefits we are giving out, because the people are only thinking about today and they want the biggest per cap check they can get, so therefore they want the enrollment numbers to be as low as possible. They want us to be a three-hundred-member tribe so that way our per cap checks are $500,000 dollars. You know, that’s just not going to happen and I don’t think that’s a good policy to have because what we are is a sovereign nation” (pp.175-176). A member of the Hopi tribal constitutional reform committee, however, testifies that not all tribes are dealing with royalties and gaming proceeds, and that Hopi finds itself in the opposite position of the Grand Traverse Band. Constitutional reform for the Hopi must be sensitive to continuing bloodlines, to expanding its membership base, and to the “long run” (p.177).

In an essay that anchors the second section of this book, international political economy professor Joseph Kalt shifts the inquiry to the question of the effective governance of Native nations. He explores when, and even whether, American Indian nations need constitutions, and teases apart the issue of whether constitutions are inherently “Western” or “dominant society.” His discussion is informed and thoughtful. Using separation of powers as a template, he considers the differing experiences of tribes with strong council governments, centralized executive branches, or independent judiciaries. Unsurprisingly, Kalt concludes that no one set of constitutional provisions will apply across Indian nations.

The final section of AMERICAN INDIAN CONSTITUTIONAL REFORM addresses questions of citizen participation – and non-participation – in constitutional reform initiatives. Lemont leads off with an essay that outlines commonly cited reasons for non-participation. Steven Haberfeld follows with a discussion of “who should be at the table” as well as the limits of constitutional reform initiatives led by technical experts. He recommends community organizing as a model that could be used successfully within tribal communities to bring citizens into the process of constitutional reform.

The firsthand accounts appended to this section testify to the difficulty of bringing members of the community “to the table.” Oglala Sioux Vice President Theresa Two Bulls recommends more education in political matters. Lummi Leonard Dixon underscores the pervasive feeling that constitutions are “just white man’s law and therefore not important to . . . daily lives” (p. 283). He counsels that “culture is the most relevant and difficult aspect to incorporate in a tribal constitution. As Indian people, we are reluctant to put our culture on paper for anyone to pick up, read, criticize, condemn, and steal” (p.283). He argues that tribal leaders, as opposed to politicians, should be sought out and educated about these initiatives as they are the “true conduit to the [*810] community and carry credibility” (p.285).

AMERICAN INDIAN CONSTITUTIONAL REFORM offers students of Native American Studies and comparative constitutionalism an opportunity to learn about government reform initiatives that seldom make their way into the scholarly literature. The volume is by no means definitive. Readers new to federal Indian law will need to school themselves in U.S. policy toward Indians – allotment, reorganization, termination, and self-determination – in order to appreciate fully the nature, and challenge, of writing and re-writing constitutions in communities long subject to U.S. colonial power.

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© Copyright 2006 by the author, Jill Norgren.

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THE SUPREME COURT & AMERICAN POLITICAL DEVELOPMENT

by Ronald Kahn and Ken I. Kersch (eds). Lawrence: The University Press of Kansas, 2006. 400pp. Cloth $45.00. ISBN: 0700614389. Paper $19.95. ISBN: 0700614397.

Reviewed by Bradley D. Hays, Department of Political Science, University of Nevada Las Vegas. Email: bradley.hays [at] unlv.edu.

pp.802-806

Several years ago, a prominent scholar working at the intersection of American political development (APD) and constitutional politics complained that the distinctive developmental and institutional concerns that once defined APD were in decline. Missing from much contemporary APD scholarship was an identity distinct from “history and politics” and a unique set of research questions that unified the subfield. Contributing to the subfield’s struggles, the countermovement to behavioralism’s stranglehold on political science, a movement that helped spawn APD, was largely successful and left APD without a hegemonic foil. The contributing factors to APD’s intellectual drift left much the discipline little more than historical analysis of political events or history done by political scientists. The question begged to be asked, “What’s the Point of APD?” (Whittington 1999).

In many ways, THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT, edited by Ronald Kahn and Ken I. Kersch, is an attempt to answer Whittington’s provocative question by demonstrating (1) the utility of relying on developmental approaches to analyze how the Supreme Court operates, and (2) offer an alternative to the methodological Janus of attitudinalism and positivism. The editors constructed the volume around the necessity of accounting for the interplay of “internal” and “external” influences on Supreme Court decision making (p.19). In essence, the Court engages in a unique form of political development when it (re)constructs constitutional meaning. Applying a developmental lens enables scholars to discover the layering of internal and external factors that result in constitutional change over time. Thus, as Kahn and Kersch note, the volume is unified by an “appreciation for the process of constitutional development as involving a complex interplay between factors internal to the Court itself as a legal institution called on to decide concrete cases according to preexisting law and institutional norms, and factors external to the Court, such as political, institutional, cultural, intellectual, and social forces” (p.3).

Inherent in the incorporation of internal and external considerations in the study of the Court is a critique of methodological approaches that place great emphasis on one or the other but not both. Throughout the volume, contributors offer a subtle (although not always subtle) critique of attitudinal and strategic approaches to judicial decision making for failing to consider the totality of influences and overemphasizing the external over the internal or vice versa. In other words, judicial decision making is not just attitudes, strategic behavior, culture, or law. It is a complex [*803] coalescence of all these factors. Echoing the criticisms offered by historical institutionalists, the volume contains strong and important challenges to more parsimonious (and positive) approaches to the study of the Court.

The volume is organized into four sections. Part One is dedicated to rethinking the law versus politics distinction. Part Two examines the Supreme Court within the governing political order (or regime). The third section contains two chapters that address the Court’s role in constructing authoritative constitutional meaning. The fourth and final grouping seeks to elucidate how courts construct constitutional inclusion. The divisions are useful; however, many of the contributions could easily fit within two or more of the sections, which is a credit to their scholarly breadth and insight.

There is no way to do justice to the ten contributions without turning this review into a tome. It should be noted that most chapters deserve a complete review on their own, but a brief overview is appropriate as an indication of the breadth contained within the volume. Mark A. Graber provides a rousing start by using cases canonical to the strategic school to demonstrate that “[t]he legal roads to ROOSEVELT and MCCARDLE, as well as the actual judicial decisions in those cases, were paved by a legal, strategic, and attitudinal mixture” (p.60). Graber notes that ROOSEVELT v. MEYER and EX PARTE MCCARDLE were consistent with established legal norms of the time but that those norms were fostered by strategic decisions by antebellum justices. Thus, strategic decisions, made in the absence of legal precedent, become legal precedent over time and lay the foundation for subsequent Supreme Court decisions that may appear strategic absent analysis of precedential legal norms.

Ronald Kahn argues that we can understand much of what the Court does through the “social construction process” (SCP) of judicial decision-making. Interestingly, Kahn notes that we can understand the divisions on the Court, not by relying on overly simplistic categories like liberal and conservative, but by those justices willing to engage in the SCP and those who are not (i.e., originalists). Mark Tushnet argues that the Supreme Court can “simultaneously act against parts of the political system while at the same time collaborating with other parts” (p.117). In essence, the national political system can use a “collaborative” Court to enforce national norms against sectional resistance. Howard Gillman provocatively asserts that partisan regimes consider judges as akin (although not identical) to appointed policy makers in bureaucratic agencies or regulatory commissions. As such, partisan regimes will turn to courts to achieve parts of their partisan objectives suitable to be realized through the courts. To demonstrate this point, Gillman examines the expansion of the national judiciary that occurred during the New Frontier and Great Society and the subsequent changes to constitutional law. Gillman convincingly demonstrates that regime aspirations can have profound consequences on the structure of the national judiciary and American constitutionalism. [*804]

Ken I. Kersch challenges the “constitutive story” that the New Deal constitutional revolution destroyed the old conservative constitutionalism by demonstrating how elements of the old constitutionalism persisted in the new constitutional order. Rather than seeing constitutional changes wrought by the New Deal as wholly new, Kersch suggests that old constitutional habits recur in the new order and only by accounting for the layering of new constitutional commitments on old constitutional rubrics can we understand the true nature of constitutional development.

In the next three chapters, Wayne D. Moore, Pamela Brandwein, and Julie Novkov address the development of constitutional meaning immediately following passage of the Civil War Amendments. Moore constructs a “model of pluralistic or multidimensional [constitutional] authority” (p.237) that accounts for the interaction between popular sovereignty and the institutions responsible for constructing constitutional authority. Using this model, Moore reveals that the Court did not settle the Fourteenth Amendment’s authoritative meaning but, rather, contributed to the Amendment’s pluralistic meaning. Brandwein uses linguistic techniques associated with Quentin Skinner and J. G. A. Pocock to (re)discover the rights rubric associated with late nineteenth century Fourteenth Amendment jurisprudence, which she labels “state neglect.” Using state neglect, Brandwein demonstrates how the Court in the SLAUGHTER-HOUSE CASES, UNITED STATES v. CRUIKSHANK, and THE CIVIL RIGHTS CASES (each long associated with conservative decision-making) was “politically centrist in that they rejected the preferences of both Democrats and the more radical Republicans” (p.276). Julie Novkov attends state court decision-making pertaining to interracial marriage following Reconstruction. Much as with Moore and Brandwein, Novkov rejects the idea that Supreme Court rulings hostile to racial egalitarianism (e.g., miscegenation laws) were an inevitable result of a predetermined path. Novkov conclusively shows that the subnational contest to define equality ultimately, but not necessarily, led to thin notions of equality.

Carol Nackenoff continues the discussion of equality by examining how the “Friends of the Indians” used lacunae in legal doctrine to reshape the political environment in which Native American citizenship was considered. Importantly, Nackenoff notes how courts did not exercise exclusive control over constitutional meaning during this period; rather, courts operated as one member of an interpretive community that helped negotiate the status of Native Americans in the late nineteenth and early twentieth century. Finally, Thomas M. Keck demonstrates the fluidity between “internal” and “external” influences by examining how the Center for Individual Rights’ external litigation campaign to overturn UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE was shaped largely by the Court’s internal decisions. Importantly, Keck’s chapter reveals that constitutional development contains an inherent feedback effect that makes [*805] attending to the interaction between internal and external influences requisite to understanding the nature of change in our constitutional system.

The book is a tremendous addition to the discipline that includes several “must read” chapters. (I have already updated my graduate public law reading list to include the chapters by Graber, Kersch, Brandwein, and Novkov.) But the book is not without flaws. While Kahn and Kersch gather an impressive group of scholars who effectively demonstrate the numerous advantages associated with a developmental approach, all the contributors come from the law and courts subfield. Of course, this is not surprising given that “Supreme Court” is in the volume’s title. However, one of the essential benefits of APD is its ability to carry on conversations across subfields. The volume would likely have benefited by including scholars with an alternative concentration so as to lay a stronger foundation for theorizing judicial action from a unit external to the courts (e.g., Congress or the presidency).

Perhaps related to selecting scholars from the same research tradition, the volume is methodologically narrow. This is not to say that the research employed is not rigorous. Far from it; most of the contributors put forth the best in historical, interpretive research. However, American political development has a history of methodological diversity that is largely absent from the volume. The absence may indicate that APD draws ever nearer to “history and politics,” but the absence is notable given the methodological diversity that once filled the subfield.

Finally, I found myself wanting greater clarity on the relationship between historical institutionalism and American political development. The editors claim that they wish to stimulate a research agenda for the developmental study of the courts, which means that this agenda must be, in some ways, distinct from the existing agenda articulated by historical institutionalists. When historical institutionalism rose to the fore, historical institutionalists spilled a good deal of ink articulating how their approach differed from (and improved upon) behavioral and formal approaches to the study of courts. Part of what made historical institutionalism unique (and important) was its sensitivity toward the constitutive effects of law and institutional arrangements on judicial actors (see Gillman 1999, at 67-68). Many of the volume’s contributions note that a developmental approach incorporates these advantages. So, is APD just a variation on, or subset of, historical institutionalism? Or, is there something unique that APD affords scholars of the courts? Since APD “seems uniquely concerned with how political events build on one another and not simply how they change” (Whittington 1999, at 45) it seems that the editors are correct that there is a unique agenda for development, but more attention will need to be paid to its distinctive contribution relative to other historical and interpretive approaches to the study of courts before the agenda truly emerges as unique.

Of course, my complaints are really an indication that, after reading nearly 500 pages, I wanted to read more. I can think of few higher compliments. Kahn [*806] and Kersch and the volume’s contributors may not have fully answered the question “What’s the point of APD?” but they begin the process and make it evident to readers of the volume that the answers will be fascinating, exciting, and insightful. The volume is requisite reading for any student of law and courts or political development.

REFERENCES:
Whittington, Keith E. 1999. “What’s the Point of APD?” CLIO 9:2, 5, 43-45.

Gillman, Howard. 1999. “The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making.” in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES. Cornell W. Clayton and Howard Gillman (eds.). Chicago: University of Chicago Press.

CASE REFERENCES:
CIVIL RIGHTS CASES, 109 U.S. 16 (1883).

EX PARTE MCCARDLE, 74 U.S. 506 (1869).

ROOSEVELT v. MEYER, 68 U.S. 512 (1863).

SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1973).

UNITED STATES v. CRUIKSHANK, 92 U.S. 542 (1875).

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

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© Copyright 2006 by the author, Bradley D. Hays.

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RETRIBUTION AND REPARATION IN THE TRANSITION TO DEMOCRACY

by Jon Elster (ed.). New York, NY: Cambridge University Press, 2006. 352pp. Hardback. $85.00/£48.00. ISBN: 0521829739.

Reviewed by Julio Ríos-Figueroa, NYU School of Law. Email: jrf246 [at] nyu.edu.

pp.797-801

Transitional justice consists of both the processes of retribution against the leaders and agents of former autocratic regimes and the processes of reparation for their victims. These processes involve a sequence of crucial interdependent decisions starting with whether to come to terms with the past at all. It is not an easy choice. Suppose that the new regime decides to prosecute past abuses. Should trials be conducted within the legal system, assuring to the extent possible the guarantees of due process, or should they occur outside the legal system in a more political and expedient way? Should transitional justice target all perpetrators, only the leaders, the agents, or a mix? How should the perpetrators be punished? Should reparation include only the living victims of past crimes or also their heirs? Should reparations be made to individuals or collectivities? How much is owed to the victims? Can we assess how the victim would be today had her rights not been violated in the past? All these questions involve real human dramas as well as fascinating theoretical and political dilemmas. Jon Elster, once again, has produced a valuable contribution to the debate in this superb collection of enjoyable and rigorous essays.

The book is divided into three parts. It also includes an introduction and a conclusion written by the editor, who also authors one of the two excellent chapters of the first part devoted to general issues of reparation (by Jon Elster) and restitution (by Tyler Cowen). The introduction and the first two chapters provide the analytic framework used in the following ten empirical chapters equally distributed between the second and third parts. Those two parts are dedicated, first, to the cases of Germany and German-occupied countries after 1945, and second, to cases in Latin America, post-communist Europe, and South Africa. Unlike many edited volumes, in this one the reader enjoys to a greater extent the intellectual dialogue between the authors. The analytical framework, applied in different degrees in the rest of the chapters, is itself the product of the analytical power of the editor enriched by the theoretical and historical insights of the authors. This is better appreciated taking into account that the present volume is not only the product of a seminar held at Columbia University but also a companion to Jon Elster’s (2004) own recent monograph on transitional justice.

Despite the title, most authors deal with retribution against wrongdoers, which include trials, purges, and other measures. Only two chapters address reparation to victims, one by Tyler Cowen who addresses the conceptual problems of “undoing past wrongs” and the other by Aviezer Tucker who discusses different measures of [*798] rectification in post-communist countries. The empirical chapters are inherently comparative, whether the comparison is between zones within post-1945 Germany (David Cohen’s chapter) or between two or more countries (as in Carlos Acuña’s chapter on Argentina and Chile, and Tucker’s chapters on post-communist countries). A total of thirteen countries in different “waves” of democracy are analyzed: Germany and German-occupied countries post-1945 (Austria, Belgium, Denmark, France, Hungary, the Netherlands, Norway); South America, post-comminist countries, and South Africa in the last two decades of the last century (Argentina, Chile, Czech Republic, East and Unified Germany, Poland). In addition, illustrations and examples from several other countries can be found throughout the book. The volume thus compliments recent cross-national studies on transitional justice (e.g. Roht-Arriaza and Mariezcurrena 2006; Kaminski, Nalepa, and O’Neill 2006; Hayner 2002; McAdams 1997).

In the introduction, Elster classifies the cases discussed in the book by distinguishing autocratic regimes and processes of transitional justice according to whether they are endogenous or exogenous. For instance, the autocratic regime may be exogenous, as in the countries occupied by Germany during the Second World War, or endogenous as the military dictatorships in Argentina and Chile. Similarly, transitional justice can be exogenous, as in the case of the Nuremberg trials of Nazi leaders and institutions carried out by the allies, or endogenous as in the case of South Africa where a country has to come to terms with itself. In addition, Elster distinguishes between actors, their motivations (emotions, interests, and reason), institutions, and context (economic, legal, and political) in order to explain the variation observed in different historical cases regarding answers to the questions posed at the beginning of this review. His analysis regarding emotions, and his analytical effort to link them to actions, taking into account other motives such as interest and reason, is highly interesting and deserves special credit. The analytic framework is then used to study the sequence of decisions involved in processes of transitional justice: whether to come to terms with the past at all, whether to carry out legal or political trials, or administrative purges, and subsequent decisions carefully spelled out in Offe’s and Ulrik’s chapter.

Take, for example, the decision on whether to prosecute the wrongdoers within or outside the legal system. A formal legal trial presupposes an element of risk to those involved, derived from the judge’s independence and his preparedness to evaluate the unfolding of both the official and the defendant’s story in the light of a norm of conduct. In transitional justice some elements of a formal legal trial, such as independent and/or competent judges, may be absent. This was the case in post-communist countries where, as Tucker notes, there were neither lawyers nor judges with proper training. In post-1945 Germany, David Cohen argues, there were competent lawyers and judges, but they were not trustworthy because of their collaboration with the Nazi regime. Even with competent and independent judges, [*799] transitional justice processes are plagued with procedural obstacles, the most salient being the non-retroactivity of legislation. Because of these problems, when democratic elites engage in transitional justice to signal that in the new regime “nobody is above the law,” they should be aware of what Bärbel Bohley, a former East German dissident, concluded: “We wanted justice but we got the rule of law (Rechtsstaat) instead.”

On the other hand, trials outside the formal legal system presided by lay judges may be quicker and more efficient, but their legitimacy and consequences vary depending on context. When time is of essence, political trials may actually prevent a bigger problem. For instance, Henry Rousso argues that in occupied France where hate and desire for revenge against collaborators were strong, ad hoc courts-martial provided swift trials and executions that actually prevented the multiplication of uncontrolled executions by cooling down passions. Similarly, to deal with collaborators General De Gaulle allowed the creation of special Courts of Justice, consisting of one judge and four juror members of the resistance, avoiding in this way the less legitimate military tribunals and the burdens of due process. In Belgium, unlike France, members of the resistance were not included in military tribunals. However, of course, political trials are difficult to justify in a democracy, and their abuse may backfire and weaken the new democratic regime.

Other, structural, conditions affect the choice of legal versus political trials in transitional justice processes. Some considerations have to do with the nature of the autocratic regime and the strength of the demand for transitional justice. The demand for retribution may be weaker, as in post-World War II Austria and Hungary, according to István Deák, or stronger as in Belgium and the Netherlands in the same period according to Luc Huyse. A weaker demand may allow for a more lengthy and cumbersome fully legal process. Another consideration is the strength of the outgoing autocratic elite. In Czechoslovakia and Poland, as Tucker shows, the strength of post-communist elite waxed and waned vis-à-vis that of non-communist elites, and decisions regarding how to conduct trials and purges followed these movements in the balance of power. In Argentina and Chile as in South Africa, Carlos Acuña and Alex Boraine, respectively, observe the armed forces remained considerably strong and were able to extract compromises from the new democratic governments. In the Argentinean case, interestingly, choosing the formal criminal justice system backfired, since independent judges did not comply with the compromises that the new democratic government had made with the generals regarding the limited scope of the trials. The result was a new military threat and instability of the nascent democracy.

Some issues considered only briefly in the analytical framework may deserve more attention, given their role in various empirical cases, such as the economic and the international context. Regarding the latter, for instance, the geopolitics imposed by the Cold War [*800] affected in different ways the intensity and the scope of transitional justice in post-1945 Germany and German-occupied countries, as well as in communist countries behind the “iron curtain.” The international dimension, this time in the somewhat different form of international jurisdiction, affected the coming to terms with the past in Argentina and Chile where the prosecution of Augusto Pinochet was initiated by the Spanish judge, Baltasar Garzón. Finally, although formally out of the scope of a volume devoted to transitional justice episodes in the twentieth century, the international dimension is also crucial in the processes heard by the International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as the ongoing trial of Saddam Hussein in Iraq.

Regarding the economic context, some remarks in different chapters may be interesting hypotheses for future research. Transitional justice processes occur in vastly different economic circumstances, as István Deák’s comparison of Austria and Hungary illustrates. In this connection, David Cohen points out that the demand for transitional justice, in Germany and other countries, decreased when economic conditions improved. Is it also true that, when economic conditions get worse, the demand for transitional justice increases? Although Tucker’s analysis of post-communist countries and Acuña’s account of Argentina suggest that this is the case, there is still the counter example of Chile, where transitional justice gained momentum as economic conditions improved. The political strategies of the leaders, especially in protracted transitional justice processes, as those in Chile and Argentina, may have a role here. For instance, in the ongoing Argentinean case, President Nestor Kirchner might be using transitional justice as a strategy to divert attention from pressing economic conditions. Thus, economic conditions seem to deserve more attention regarding its role on the emotions, interests, and the decisions for retribution against perpetrators and restitution to victims of past abuses.

In sum, this is a highly enjoyable, analytically rigorous, and historically rich collection of essays on a fascinating, timely, and consequential topic. It is an important contribution to the already substantial and growing literature on transitional justice. Processes of retribution and reparation in the transition to democracy provide a privileged window through which we can clearly see how closely intertwined law and politics are. The chapters in this volume engage the reader in a continuous dialogue between theory and concrete examples, back and forth. As Elster notes, transitional justice is a laboratory for the “empirical study of justice,” namely how different normative conceptions of justice play out in real historical circumstances. I would add that it is also a laboratory for the empirical study of democratic theory where it is possible to analyze the dynamics, strengths, and limitations of its cornerstones, such as the separation of powers and the rule of law.

REFERENCES: [*801]
Elster, Jon. 2004. CLOSING THE BOOKS. TRANSITIONAL JUSTICE IN HISTORICAL PERSPECTIVE. New York: Cambridge University Press.

Hayner, Priscilla B. 2002. UNSPEAKABLE TRUTHS: FACING THE CHALLENGE OF TRUTH COMISSIONS. New York: Routledge Kegan Paul.

Kaminski, Marek, Monika Nalepa, and Barry O’Neill (guest editors). 2006. “Normative and Strategic Aspects of Transitional Justice” 50 JOURNAL OF CONFLICT RESOLUTION (Special Issue) 295-302.

McAdams, James (ed.). 1997. TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRACIES. Notre Dame, Ind: University of Notre Dame Press.

Roht-Arriaza, Naomi, and Javier Mariezcurrena (eds.). 2006. TRANSITIONAL JUSTICE IN THE TWENTY-FIRST CENTURY: BEYOND TRUTH VERSUS JUSTICE. New York: Cambridge University Press.

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© Copyright 2006 by the author, Julio Ríos-Figueroa.

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AMERICANS WITHOUT LAW: THE RACIAL BOUNDARIES OF CITIZENSHIP

by Mark S. Weiner. New York and London: New York University Press, 2006. 205pp. Hardback. $45.00. ISBN: 0814793649.

Reviewed by John Paul Ryan, The Education, Public Policy and Marketing Group, Inc. Email: johnpryan [at] ameritech.net.

pp.792-796

The story of race, ethnicity, and American culture is a complex and contested one, influenced both by the actual flow of events and the political values of the storyteller. In some versions, there is a steady progression from exclusionary laws and practices to an inclusive society. Others choose to emphasize our nation’s troubled past, riddled with state-sanctioned discrimination, hate, and exclusion, and see little hope that new groups will avoid these old burdens. Legal scholar Mark Weiner, a Rutgers University law professor, fashions a story that draws on both traditions in his new book about law, race, and the boundaries of citizenship.

Four stories (or case studies) form the basis of AMERICANS WITHOUT LAW. The first traces Native Americans in the late 19th century, followed by residents of the U.S. possessions of Puerto Rico, Hawaii, and the Philippines after the Spanish American War, Japanese immigration in the early 20th century, and the march toward civil rights by and for African-Americans in the middle of the 20th century. What is new and distinctive about Weiner’s analysis of these four familiar cases are the biographical, cultural, and interdisciplinary tones that he weaves together. Law is still the anchor – Weiner thoroughly analyzes a series of Supreme Court decisions, and some congressional statutes, within each story. His discussions focus less on the actual Court holdings and more on the jurisprudential lines of reasoning that flow from the majority opinions, concurring opinions, and dissents. For each story, Weiner argues that judicial reasoning reflects leading intellectual thinking of the day embodied in key individuals – the naturalist and geographer John Wesley Powell for the Native American case study; Senator Henry Cabot Lodge for the story about citizenship in the U.S. possessions; Madison Grant, a lawyer and social critic for the study of Japanese immigration; and the social science scholar Gunnar Myrdal for the story of civil rights and BROWN. These key individuals, Weiner seeks to demonstrate, influenced both political discourse and Supreme Court opinions of the day.

Weiner’s primary thesis is that racial minorities in the 19th and early 20th centuries were kept outside of our nation’s civic boundaries by law, in particular by “a culturally potent and institutionally productive language of law” (p.1) that he labels “juridical racialism.” This function of law, which he believes has gone largely unexamined, both reflected and promoted forms of institutional racism and nativism. Weiner also argues that juridical racialism promoted national [*793] economic growth and development, often at the expense of racial groups unprotected by law. Finally, he weaves historical and modern concepts of culture into his arguments, relying on the work of German anthropologist Franz Boas, who was a leading contributor to scholarship on culture during the era of his case studies. Weiner argues that Boas’ transformation of the idea of culture (to something more than a proxy for race) is illuminated by juridical racialism – in particular by “encouraging new rubrics for thinking about the nature of race in relation to the concept of law – rubrics . . . that were absorbed into the law itself” (p.15).

The first story, “Laws of Development, Laws of Land” is an analysis of Native Americans, law, and tribal land at the close of the 19th century, focusing especially on the years between 1883 and 1887 when Congress passed the Dawes Act and the Supreme Court weighed in on two cases (CROW DOG, 1883 and U.S. v. KAGAMA, 1886) involving the extension of federal jurisdiction over what Weiner loosely calls “Indian crime.” He traces the personal background, experiences, and occupations of John Wesley Powell from scientist and teacher to a military engineer in the Civil War to the founder and director of the Bureau of American Ethnology, where he published many anthropological studies, among them descriptions and classifications of the culture and language of North American Indians. Weiner argues that the assimilationist-era Indian reforms advocated by Powell were “put into practice with the Dawes Act” (p.36), a policy [of abolishing Indian tribal property] that Weiner and most other contemporary scholars label as a disaster. Moreover, he argues that the “intellectual themes of John Wesley Powell’s personal and professional life sounded through” (p.38) the CROW DOG and KAGAMA cases, which he tries to demonstrate through a detailed analysis of the language of Justice Stanley Matthews’ and Samuel Miller’s opinions for the Court.

The INSULAR CASES form the legal basis for Weiner’s second story, “Teutonic Constitutionalism and the Spanish-American War.” Here, he examines the U.S. possessions acquired from the Spanish-American War – Puerto Rico, Hawaii, and the Philippines – through the biographical lens of Senator Henry Cabot Lodge, an influential advocate of American expansionism who served in the Senate from 1893-1924, and the myriad of Supreme Court cases between 1901 and 1904 testing the application of the Constitution and the Bill of Rights to the peoples of these colonial lands. Questions of race, racial inferiority, intellectual capacity, and the potential for self-government (and ultimately, statehood) underlay these cases as well as the thinking of foreign policy architects of the time. Weiner observes: “In his work in Congress . . . Lodge consistently spoke in the language of Teutonic juridical racialism, his political concerns deeply driven by its worldview” (p.64). Lodge’s worldview was reflected in some but not all of the judicial opinions and writings of the period, which Weiner classifies into two camps – “judicial traditionalists” (like Justice John Marshall Harlan) who [*794] believed that the Constitution follows the flag, and “judicial modernists” (like Justices Edward White and Henry Billings Brown) who believed that Congress rightfully intended the residents of these possessions to live outside of the shadow of constitutional protections. For Weiner, this story – like the first one about the redistribution of Indian lands – is also about the expansion of U.S. economic growth, in this case through increased access to overseas markets afforded by the Spanish-American War and its aftermath.

The changing faces of immigration in the 1920s provide the backdrop for Weiner’s third case study, “The Biological Politics of Japanese Exclusion.” The Immigration Act of 1924 is the focal point of discussion, in particular a key provision that effectively barred Asian entry to the United States. Weiner selects environmentalist and lawyer Madison Grant, who was also an advocate of immigration restrictions, to develop and highlight a story of racial eugenics that circulated in varying subtleties among one school of anthropologists, public officeholders including key members of Congress, and one wing of the U.S. Supreme Court. Weiner deftly portrays a complex Madison Grant, praised today for his work as zoologist and protector of redwoods and bison just as he is reviled for his stereotypical and racist views of Asians who were “constitutionally incapable of recognizing the authority relationships grounding Western democracy” (p.90), but views that also included fears of economic competition from Japanese immigrants in western states. He also ties Grant to his politically influential and conservative brother and ultimately to a key member of Congress, Albert Johnson (a westerner, the chair of the House Immigration Committee, and co-sponsor of the Immigration Act of 1924), whom Madison Grant visited, advised and lobbied on behalf of immigration reform and restrictions. As part of a broader discussion that also includes the Chinese Exclusion Cases of the 1880s and 1890s, Weiner analyzes the 1922 Supreme Court case of OZAWA v. U.S., including Justice Sutherland’s opinion for the Court. He situates OZAWA as the logical precursor to, and effective test case for, the draconian immigration restrictions to follow, pointing out that the Court was not willing to explicitly consider certain anthropological views of race that proved influential to Congress just two years later.

The African-American struggle for civil rights, culminating in BROWN v. BOARD OF EDUCATION (1954), forms the basis of Weiner’s final story, “Culture, Personality and Racial Liberalism.” His particular interest in BROWN centers on footnote number 11 and the cited works of social science scholars Kenneth Clark and Gunnar Myrdal. It is the Swedish-born economist Myrdal, author of “the most important mid-century study of race relations in the United States” (p.108), to whom Weiner primarily turns to explore the connections between race and self-esteem that are at the heart of AN AMERICAN DILEMMA (1944) and the Court’s opinion in BROWN. Weiner sees Myrdal’s work as the one that [*795] turned the formulations of thinkers like Madison Grant, Henry Cabot Lodge, and John Wesley Powell on their head. Now, “all citizens were capable of holding the full range of legal rights [and] Myrdal’s view of civic belonging . . . nationalized the idea of law itself, breaking the strict association of law with racial essence that inhered in earlier forms of juridical racialism” (p.118). BROWN is the logical culmination of the Court’s newly-formed due process and commerce clause jurisprudence of the late 1930s, reflected in such cases as WEST COAST HOTEL v. PARRISH (1937) and U.S. v. CAROLENE PRODUCTS (1938). For Weiner, BROWN brought to an end the juridical-racial tradition, while at the same time also fostering national economic growth that flowed easily from a more powerful federal government boldly enacting anti-discrimination laws and programs.

AMERICANS WITHOUT LAW has many strengths. It addresses a powerful topic. It is a conceptually creative piece of scholarship, forged from a sophisticated interdisciplinary viewpoint. The case studies are well-researched, attentive to detail, and amply documented. The biographies of key intellectuals and political figures are substantial and relevant to the issues discussed. The analyses of law move comfortably between congressional statutes and Supreme Court opinions, illustrating how the “law in action” arises from multiple sources. Yet, the book also has weaknesses, some of them flowing from apparent strengths or from the interests of particular readerships.

Weiner has formulated the book broadly, setting forth expansive theories of law, race, and American society. But his implementation, through the four stories, is relatively narrow. These four cases are important to the book’s theme and to our nation’s history, but there are others that could have been chosen in addition or instead. Why these four? Weiner never really addresses this fundamental question, although he does a good job of linking the four stories together, drawing parallels where possible.

The use of biographies as an integral part of Weiner’s analysis is creative but also troubling. Particularly problematic is the sense of inevitability as Weiner marches through the individual’s personal background and early life experiences, which inexorably lead to the person’s mature views and political actions. Individuals never rise above their background or deviate from it. Furthermore, the links between the individuals and the political or jurisprudential outcomes they sought to accomplish are tenuous; positivists would find the supporting evidence that Weiner provides to be unconvincing – casual or associational rather than causal.

Weiner’s story of juridical racialism ends a bit surprisingly and abruptly with BROWN. Many readers, including critical race theorists, will view this as an overly optimistic reading of BROWN and of our likely future jurisprudence. Yet Weiner offers little in the way of mapping the future. In his short, three-page conclusion, he barely discusses post-BROWN America, let alone new racial and ethnic tensions arising from [*796] September 11th. He confines himself closely to the four stories and allows his theoretical arguments to be fully bounded by them.

Finally, political scientists may find fault with Weiner’s emphases and omissions. He relies primarily upon the discipline of anthropology, and its intra-disciplinary quarrels, in talking about culture and race. And political actors such as Henry Cabot Lodge seem driven more by broad worldviews and ideologies than any practical political considerations. Indeed, Weiner’s attribution of “political” motives to politicians and judges is quite thin, and he does not cite or explicitly draw upon much work in political science (one notable exception is the recent work of Rogers Smith on civic ideals and political membership).

The racial boundaries of citizenship, or civic belonging, in the United States have narrowed, resulting in a far more inclusive society today. Legal scholar Mark Weiner does not provide the complete picture of who, when, and why, but he does frame a story that most socio-legal scholars will find worth reading.

REFERENCES:
Myrdal, Gunnar. 1944. AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY. New York: Harper.

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

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

Ex Parte CROW DOG, 109 US 556 (1883).

OZAWA v. U.S., 260 US 178 (1922).

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

U.S. v. KAGAMA, 118 US 375 (1886).

WEST COAST HOTEL v. PARRISH, 300 US 379 (1937).

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© Copyright 2006 by the author, John Paul Ryan.

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TRIAL BY JURY: THE SEVENTH AMENDMENT AND ANGLO-AMERICAN SPECIAL JURIES

by James Oldham. New York: New York University Press, 2006. 368pp. Hardbound. $55.00. ISBN: 0814762042.

Reviewed by Paul Lermack, Bradley University. Email: pnl [at] bumail.bradley.edu.

pp.788-791

James Oldham, a legal historian at Georgetown University Law Center, here brings together his work on the history of civil juries. Most of the material has been previously published over a period of more than twenty years.

The discussion falls into two loosely related halves. In the first, Oldham tackles several problem areas in modern Seventh Amendment law to which the reconstruction of eighteenth-century civil procedure is relevant. In the second, to which the subtitle refers, he traces the use of civil juries with specially-qualified members. Oldham has previously written extensively on eighteenth-century legal history and on the contributions of Lord Mansfield, and he has edited Mansfield’s trial notes. He is familiar with the documentary record and skilled in the method of interpolation that historians use when they try to reconstruct some archaic legal procedure from the few extant recorded cases in which it was used. He is thus ideally prepared to write about the right to a civil jury trial.

Unlike the other procedural rights listed in the Bill of Rights, the Seventh Amendment right to a civil jury is explicitly pinned to “suits at common law.” Though historians (including Oldham) have objected, the Supreme Court has held that “[i]n order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791” (DIMICK v. SCHIEDT, 476). A litigant is entitled to a civil jury if an analogous 1791 case would have been tried by jury. The kind of jury provided, and the functions it will perform, are similarly linked to the eighteenth century. This “historical test” has turned the question of the proper scope of the right to a civil jury into a test of the originalist method of constitutional interpretation.

The results have been predictably disastrous. The world has changed since 1791. Court organization, civil pleadings and civil procedure in general are all markedly different, as are the kinds of cases brought and the expectations of the litigants. But whenever the scope of the Seventh Amendment right is in question, lawyers imitate their fictional colleagues in GULLIVER’S TRAVELS; they hire historians to mine the incomplete and decontextualized eighteenth-century records that have survived. Because the past is slippery and resists being pinned down, historians disagree. But the documentation they provide allows each lawyer to argue that some preferred course of action is congruent with some reconstruction of eighteenth-century practice, and that the opponent’s preferred option is not. [*789]

For example, judges economize the availability of court time and resources by using summary judgment rulings to dismiss many civil cases without trials. Summary judgments raise Seventh Amendment concerns because they substitute the judge’s determination of at least some facts for that of a jury. Since summary judgments did not exist in the eighteenth century, they would seem to violate the Seventh Amendment right to have juries determine facts as they did anciently at common law. If that is the case, courts would have to try many more cases than they now do, at consequently greater expense. But the Supreme Court has allowed summary judgments to be used. The Court reasoned that in 1791 not all civil cases were tried by juries and that, even though summary judgments did not exist, analogous procedural mechanisms accomplished the same results. But historians disagree over whether the analogous mechanisms existed, were actually used, or were truly analogous. (Thomas 2004; 2007) The ability of modern courts to develop a procedure that allows them to use their resources efficiently thus hinges on questionable – and questioned – reconstructions of archaic practices. The legitimacy of courts, which hinges on the public perception that courts do justice by safeguarding rights, is similarly imperiled.

In the first part of TRIAL BY JURY, Oldham discusses a number of such controversies. In the first chapter, he critiques the 1996 MARKMAN decision, in which the Supreme Court allowed judges to resolve certain important definitional disputes in patent infringement cases because in analogous eighteenth century cases judges, not juries, dealt with such matters. The relevant details of eighteenth-century trial procedure are largely known from Lord Mansfield’s trial notes. Oldham uses his familiarity with the material to argue that the Court got the MARKMAN ruling wrong as a matter of history. But in the eighteenth century the law of patents existed only in rudimentary form. It has since become bewilderingly complex. We can no longer assume that jurors can comprehend it. Thus, Oldham concludes, the historical test is attractive because it allows courts to create constructive change – by taking an impossible task away from the jury – while maintaining “the stability and reassurance that come from appearing to stay in touch with the historical past” (p.15).

The conclusion illustrates the utility of this historical research. Whatever historians discover inevitably “informs” modern policy debates. As judges struggle to adapt old procedures to the requirements of modern complex litigation, the historical test requires them to deal with such details. Some have argued that the law is often so complex that there ought to be a “complexity exception” under which cases otherwise appropriate for jury trial would be dealt with by judges alone if the factual matter, or the law, seems too complex for ordinary people to understand. The Seventh Amendment would seem to be a barrier to the creation of a complexity exception. But in the second chapter, Oldham argues that eighteenth-century courts followed a [*790] variety of practices which had the effect of putting complex decisions in the hands of specialists. These practices included juries composed of specially qualified jurors. All are now obsolete. But they serve as eighteenth century precedents for the principle that complex decisions should be left to specialists. A contemporary complexity exception, he concludes, could be based on this eighteenth-century limitation of the province of the lay jury.

Oldham brings similar historical research to bear on a number of more general questions: when, if ever, can juries determine the law as well as the facts? What can be done if the jury refuses to follow the law? For that matter, just what is a “fact?” Lawyers generally assume that the determination of damages, at least economic damages, is within the province of the jury. A curious obsolete procedure, the writ of inquiry, seems to have allowed at least nineteenth century judges to make such determinations, treating the findings of specially-empaneled sheriff’s juries as advisory. But Oldham argues persuasively that this was never done without the consent of the parties, and did not, in practice, constitute an exception to the general rule that juries determine damages.

This piecemeal research is interesting to the extent that the reader is interested in reconstructing the past, but it has important policy implications only because of the historical test. As Oldham deals with one question after another, he reveals the existence of one scholarly controversy after another. The chapters have an additive effect. The past is shown to be a muddy pasture in which litigation, and legal certainty, inevitably bog down. Its reconstruction adds a dimension of cost and tedium to modern legal cases that are all too often fantastically complex to begin with. Oldham’s conclusion sneaks up: the Supreme Court’s historical test is “anachronistic” (p.79). At best, it requires lawyers to explain away or redefine antique procedures. At worst, it requires them to use them – a practice as costly as requiring surgeons to do modern procedures with the tools of their barber ancestors.

Oldham does not belabor the conclusion but rather moves on, in the second half of the book, to a more colorful chapter of legal history: the rise and fall of a variety of special juries. Some of these were juries composed of individuals specially chosen for their knowledge or experience. For example, “juries of matrons” were used to determine with certainty whether a woman was pregnant. Women served, on the assumption that, after dealing with the pain and vomit of pregnancy, they were well suited to recognizing the symptoms in others. Juries of matrons were available in a variety of circumstances, most notably when a woman convict sought to delay or evade the death penalty to save the life of her fetus. (Pregnancy could also affect such matters as inheritance.) Other special juries were made up of high-status individuals. Still others were composed of men with special knowledge of the business world, or simply of highly educated individuals. Some empanelled jurors with personal knowledge of the case at hand, and expected them to use [*791] that knowledge in addition to the evidence presented. Some very early juries were expected to investigate on their own.

Special juries flourished in England in the late common-law period. They gradually fell into disuse, and were all gone by 1949. The institution was transplanted to the United States, where some special jurors had expertise in “drainage district assessment disputes” (p.202), were foreigners, or spoke foreign languages. Some special juries may still be available. We do not know whether the historical test preserves whatever level of special juries were available in 1791, but it is clear that, as Oldham observes, “selecting juries from exclusive classes of people is not in keeping with the pervasively egalitarian spirit of late-twentieth and twenty-first-century America” (p.2; cf. pp.210-211). The composition requirement for criminal juries is that the members be chosen in a way that maximizes the likelihood that they will represent a cross-section of the community. (WILLIAMS v. FLORIDA) Indeed, we define a “peer” as a fellow-citizen who is eligible to serve, without restriction, on such a jury, and we are as unlikely to accept any criminal jurors chosen for knowledge, status or experience as we are jurors chosen for their wealth, race or gender.

It is likely that contemporary notions of justice would similarly prevent at least widespread use of special juries in civil cases. They remain an interesting historical topic – one of those remnants, like titles of nobility or neckties, from a time when values were fundamentally different. They remind us that in that far-off past, like in a foreign country, people did things differently. Oldham’s very significant accomplishment is to remind us that in the law, as anywhere we are trying to cope with the demands of modernity, we should not be spending too much time visiting that foreign country.

REFERENCES:
Thomas, Suja A. 2007. “Why Summary Judgments Are Unconstitutional,” 93 VIRGINIA LAW REVIEW forthcoming (SSRN# 467342).

Thomas, Suja A. 2004. “The Seventh Amendment, Modern Procedure and the English Common Law,” 82 WASHINGTON UNIVERSITY LAW QUARTERLY 687-754 (SSRN# 525442).

CASE REFERENCES:
DIMICK v. SCHIEDT, 293 U.S. 474 (1935).

MARKMAN v. WESTVIEW INSTRUMENTS, 517 U. S. 370 (1996).

WILLIAMS v. FLORIDA, 399 U. S. 78 (1970).

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© Copyright 2006 by the author, Paul Lermack.

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BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS

by Michele Goodwin. Cambridge and New York, Cambridge University Press, 2006. 312pp. Hardback. £20.00/$30.00. ISBN: 0521852803.

Reviewed by Barbara A. Noah, Associate Professor, Western New England College School of Law. E-mail: bnoah [at] law.wnec.edu.

pp.785-787

Michele Goodwin’s BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS takes an original look at a complex subject. The Introduction sets out the problems addressed in the book. As most people know, the supply of cadaveric organs for transplantation falls woefully short of demand. To make matters worse, Goodwin lays out a compelling case for the proposition that inequities in the organ allocation system disproportionately impact racial minorities, particularly African Americans. Because of systematic bias in organ procurement and allocation, Goodwin argues that African Americans should participate actively in the conversation about how to reform the system.

The book is divided into three major parts. After the Introduction, Part One describes and critiques the existing organ procurement and allocation system. Among other things, Goodwin explores in depth the role of race in supply and demand of organs for transplant. For a variety of reasons, African American patients wait longer to obtain kidney and other organ transplants than white patients. In part, organ donation rates by African Americans have lagged, though donations among minority groups recently have increased. Whites continue to account for most organ donations, and this limits the number of organs available for minorities where immunologic matching is deemed essential. In addition, demand for certain transplants may be higher among racial minorities. For instance, African Americans constitute approximately 12% of the population in the United States but account for more than one-third of persons suffering from end stage renal disease. The confluence of these supply and demand factors results in longer waiting times for racial minorities. African Americans currently account for more than one-third of patients on the waiting list to receive kidneys. Goodwin concludes that strategies to increase organ supply, and therefore reduce the crippling shortage of organs, deserve additional consideration, particularly models involving incentives for donation.

Part Two analyzes existing laws that govern organ procurement and considers the comparative merits of alternative systems. After evaluating the effectiveness of the Uniform Anatomical Gift Act and proposed reforms to the Act, Goodwin focuses on the merits and disadvantages of two models to increase the supply of organs for transplant. With respect to the presumed consent model, she notes that most people are unaware of the existing presumed consent laws in more than half the states, and that most laws generally limit their operation to [*786] the harvesting of corneas for transplant. Even so, the data suggest that such laws have only a limited positive impact on supply and create controversy because of concerns about over-implementation in lower income and minority donors and a related concern about the quality of cornea tissue. In addition, critics of existing and potentially broadened presumed consent schemes worry about interference with donors’ religious beliefs or cultural preferences. The chapter then evaluates some of the underlying ethical arguments that either justify presumed consent or militate against it.

Goodwin also considers in depth a market approach to increasing the supply of transplantable solid cadaveric organs. Although she acknowledges concerns about cost and discourages a market or incentives for donations from living donors, she argues that a market for cadaveric organs can co-exist with and supplement altruistic organ donation. She also persuasively debunks arguments that such a market would result in an increase in organs for transplant that are contaminated or otherwise of poor quality. Part Two closes with a description and discussion of the existing international black market in organs and tissues, and concludes that, until the government implements an effective organ procurement system, the black market in organs will continue to flourish.

Finally, Part Three provides a critique of the argument that permitting a market in cadaveric human organs too closely resembles slavery and therefore cannot serve as an acceptable alternative to the current system which relies purely on altruism as a motivation for donation. Noting that payment occurs at every stage of the organ transplantation process except to the donor, Goodwin asserts that those who argue in favor of an exclusive system of gratuitous organ donation ignore “the existence of a thriving, current market in human tissues and organs” (p.204). Ultimately, Goodwin concludes that a market in human organs can provide real benefits to all, including African Americans, although she acknowledges the difficult trade-offs inherent in such a system.

BLACK MARKETS is impeccably researched and persuasively argued, though some of its points are certainly controversial. The book is aimed at and very accessible to a general audience, but it will also prove interesting and informative to legal, medical and public health academic audiences. Faculty offering courses in bioethics, racial justice, or health care delivery may find that the book can provide a useful secondary source, particularly in seminar-style courses with the leisure to discuss it in depth and to place it into the broader debate about distributive justice in health care. Even those readers who disagree with Goodwin’s proposals for reform of the organ procurement and allocation system will find the book informative and helpful in strengthening their understanding of the ethics, law and policy that affect organ transplantation in the United States. This reviewer hopes that evolving technology eventually will alleviate the need for living donor or cadaveric organ donation but, in the meantime, Goodwin’s book provides provocative [*787] and insightful material with which to continue the conversation about transplant policy.

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© Copyright 2006 by the author, Barbara A. Noah.

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ACADEMIC FREEDOM AFTER SEPTEMBER 11

by Beshara Doumani (ed). New York: Zone Books/MIT Press, 2006. 250pp. Cloth. $42.00/£27.95. ISBN: 1890951625. Paper. $21.95/£14.95. ISBN: 1890951617.

Reviewed by Daniel Levin, Department of Political Science, University of Utah. Email: daniel.levin [at] poli-sci.utah.edu.

pp.780-784

Beshara Doumani, the editor of ACADEMIC FREEDOM AFTER SEPTEMBER 11, begins thusly: “Academic freedom is facing its most serious threat since the McCarthy era of the 1950s.” From such a beginning, one would expect to learn of congressional inquisitors combing through academic periodicals in search of subversion, of faculty losing their jobs because of youthful dalliances with radicalism, of loyalty oaths and FBI “bag jobs” in the dark of night. Those expecting, perhaps hoping for, such drama will be disappointed. This volume focuses entirely on the question of conditions attached to federal and foundation funding for Middle East studies programs. Missing are accounts of faculty members losing their positions because of speech activities or their refusal to take a loyalty oath or their previous associations. Missing are a number of other questions of academic freedom that also warrant serious consideration. Neither the “politically correct” hall monitors of the left, nor the “politically incorrect” culture warriors of the right (other than neo-conservative “Likudniks”), make an appearance. The authors do not substantively comment on the speech codes which govern teaching at many institutions and which allow for disciplinary actions. They do not address the restrictions on faculty speech, belief, or private life commonly found at religious institutions. Controversies affecting the sciences, from stem cell research to evolutionary theory and cosmology, are left undisturbed.

The policy questions that animate all seven of the volume’s essays concern two laws (the USA PATRIOT Act and Title VI of the Higher Education Act of 1965), one piece of proposed legislation (the International Studies in Higher Education Act of 2003 (ISHEA)), and new policies from the Ford and Rockefeller Foundations. The most relevant portions of USA PATRIOT Act concern financial support for organizations involved in terrorism. Title VI is the source of much funding for foreign language instruction, particularly for those languages, such as Arabic and Farsi, most in need by the military, State Department, and intelligence agencies. ISHEA, which passed the House but not the Senate during the last Congress, would have created an advisory board to “provide advice, counsel and recommendations” regarding the continued operation of Title VI. The greatest source of concern regarding this advisory board is that its supporters might be supporters of Israel; the proposed creation of the advisory board was seen as an attack on Middle East studies programs, which are often considered to be pro-Arab and anti-Israel. A new version of ISHEA is currently included in the proposed College Access and Opportunity Act of [*781] 2006 (H.R. 609), which has also passed the House, but stalled in the Senate. The Ford and Rockefeller Foundations’ decisions were to include language in their conditions for grant recipients that they will not promote or support terrorism or bigotry; this was a response to supporters of Israel unhappy with foundation support for Palestinian participants at the 2001 UN Conference Against Racism who introduced several resolutions equating Zionism with racism. The policies and politics of two scholarly associations, the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA), are also examined.

Like many edited volumes, the seven contributions vary widely in quality, usefulness, and the closeness of their relation to the book’s core question. Two of the essays are from well established scholars in public law, Robert Post and Philippa Strum. The other contributors include Doumani, a historian of the Ottoman era Middle East, Joel Beinin, a historian of the modern Middle East; Judith Butler, a postmodern literary theorist; Kathleen Frydl, a historian of U.S. institutions, and Amy Newhall, an art historian. While the essays by Doumani, Beinin, and Newhall connect with each other in their specific concern over how 911 has affected Middle East studies, those from Post, Butler, Strum, and Frydl are primarily concerned with the larger history of academic freedom in the United States and only secondarily address developments of recent years, generally in 3 or 4 pages at the.close of their contributions. None of the selections include analysis of the constitutional jurisprudence relating to government-financed speech, a seemingly relevant area for consideration given the volume’s specific concerns.

The three essays by Post, Butler and Strum will likely be of most interest to readers of this review because they deal with the broadest questions of how one justifies academic freedom. Post, a former general counsel for the AAUP now at Yale Law School, spends much of his time reviewing the origins of the AAUP during World War I, its 1915 Declaration of Principles, and amendments to that Declaration. Post’s thesis is that academic freedom is rooted in the social function of the university, distinguishing it from the general First Amendment rights of all citizens. Faculty have a special responsibility to engage in critical inquiry under academic standards of scholarship and instruction, and Post argues that divorcing academic freedom from the university context “potentially undermines the professional norms necessary for the external defense of academic freedom” (p.79). Post struggles with the problem of faculty speech that ranges far beyond the speaker’s academic expertise, ultimately justifying a policy in which institutions avoid any regulation of faculty’s extramural speech that might imply that universities endorse speech related to faculty duties. “Universities would thus strengthen their ability to protect freedom of research if they were categorically to refuse responsibility for the publications of their faculty, regardless of the precise connection between such publications and the academic expertise for which faculty are [*782] hired or trained” (p.87). Post thus views universities as sponsoring the idea of speech in general, rather than in any specific form.

Judith Butler’s essay immediately follows Post’s and critiques it for ignoring the “historical contingency” of standards of academic freedom. Butler reminds us of the artificiality of such constructions as “professional norms” and “academic standards,” and identifies in Post’s argument “a conservative intellectual resistance to interdisciplinarity and disciplinary innovation” (p.127). She properly notes that any distinction between one’s academic and extramural work is difficult to maintain as scholarly interests turn to political concerns. She argues that restrictions on funding will likely encourage more rigid disciplinary boundaries because scholarly activities which receive funding will be valued above those which do not. She concludes by worrying that any academic scholar criticizing Israel will not receive funding because such criticism might promote “terrorism” or “bigotry” given the vagueness of their definitions. This conclusion is prefaced by a list of “if’s,” “might’s,” and “imagine’s,” some rather odd when applied to foundation funding for academics. Butler’s greatest concern appears to be that the revolution will not be subsidized (my apologies to Gil Scott-Heron). We are told that George Sorel, Franz Fanon, Desmond Tutu, and Nelson Mandela would not have been funded under such restrictions (p.137). Similarly, Butler asks: “Could [John] Locke get funding after calling for the end of the divine right of kings” (p.137); Butler seems unfamiliar with the fact that Locke’s patron, Lord Shaftesbury, employed him in large part for his skill in making such partisan political arguments (Ashcraft 1986). Perhaps those wishing to criticize Israel could similarly search out their own sponsors. Perhaps there is some group or nation critical of Israel that has a few dollars.

Philippa Strum’s essay duplicates portions of Post’s and Butler’s contributions. Like Post, she focuses on the development of AAUP policies on academic freedom, though with more of an emphasis on the early Cold War era. Like Butler, she provides a long list of possible infringements of academic freedom “if’s;” many a hypothetical academic loses her hypothetical funding. But, contra Post, she is adamant that “Academic freedom . . . is a right of individuals” (p.156). She has difficulty accepting Post’s theory because she describes academic freedom as resting on the imperatives of both teaching and research, while many faculty are almost entirely engaged in one or the other. If they are primarily employed in teaching, should their research receive protection? If primarily employed in research, should their teaching be protected? By posing the question thusly, and by bringing independent scholars within the fold, Strum detects the limits of an institutional basis for academic freedom. Instead, she rests scholarly rights on the central justification found in later Warren Court decisions regarding academic freedom, that critical inquiry benefits society as a whole.

Three of the four remaining chapters deal primarily with issues of Middle East studies or the structure of the modern [*783] university in a manner less likely to interest many readers of this review. Doumani’s introduction is largely descriptive of both the specific policies at issue and the essays contained in the volume. Kathleen Frydl provides a history of the development of the “multiversity” and trends in campus free speech, largely focusing on the experience at Berkeley under McCarthyism and during the Vietnam War. Amy Newhall’s essay details the perils of accepting government funds under Title VI of the National Defense Education Act, which she terms “the Devil’s Bargain” in her chapter title; her preferred alternative is broad-based federal funding for foreign language education with fewer restrictions and a less clearly defined tie to the military.

The final essay, by Joel Beinin, provides insight into what is at stake for some. His first sentence declares that “a coterie of supporters of George W. Bush’s Manichaean view of the world – a group that can be called the American Likud – has spearheaded a campaign to delegitimize critical thought about the Middle East” (p.237). Beinin identifies Martin Kramer and Daniel Pipes, Middle East scholars attached to think tanks with a strongly Zionist bent “and labeled by Beinin as ‘eccentric and marginal,’” as heading this campaign, along with such fellow travelers as Stanley Kurtz, Jay Nordlinger and David Horowitz. Beinin is fond of accusing his adversaries of McCarthyism, and he spends a great deal of time documenting “a concerted campaign” by pro-Israel think tanks, the Republican Jewish Coalition, Lynne Cheney, the American-Israeli Political Action Committee (AIPAC), the American Jewish Committee (AJC), and the Anti-Defamation League (ADL) to deny funding to those who would criticize Israel. He demonstrates that all these individuals and organizations have the goal of promoting Israel’s policies in the United States and have criticized anti-Israel individuals and organizations. Some are even conservatives. Beinin compares the concerns of Jewish students at Columbia that courses were being taught with an anti-Israel bias to the feelings of “white student supporters of Jim Crow practices at universities throughout the American South in the 1960s [who] were distressed to learn that these practices were illegal and despised by many Americans” (p.258). This comment is made in the context of the one discussion in the text of an academic being faced with an adverse employment action: the protest of Rashid Khalidi’s promotion to the new Edward Said Chair of Arab Studies at Columbia. Columbia held firm, and Khalidi got his promotion. Ultimately, Beinin concludes that “this is a political fight, not merely a scholarly debate” (p.261). His adversaries seem to have learned that long ago; it is not clear why they should be criticized for it.

Since the fall of the World Trade Center in 2001, the civil liberties of some face greater threat today than at any time since the 1950s. Immigrants from Muslim countries face greater surveillance, and the powers of domestic intelligence agencies have been expanded. In this, one may discern analogies to the Cold War. Even more dramatically, any individual labeled an “enemy combatant” can expect treatment more severe and with fewer [*784] constitutional protections than at any time since the Civil War. But academics have not been much inconvenienced. Under McCarthyism, hundred of academics faced accusations by vigilant anti-communists, and faculty and graduate students constituted almost one-fifth of those investigated by congressional committees; many lost their jobs and would have great difficulty finding new ones even when their affiliation with the Communist Party, allied organizations, or simply other suspected individuals, lay well in the past (Schrecker 1986, at 10).

Today’s situation is fundamentally different. Congress has not neglected its other business to investigate a multitude of professors’ political activities. Faculty have not been subjected to blacklists developed from anonymous tips to a federal police force and spread by that same bureau. There is one exception. Public universities in Ohio have recently begun asking newly hired faculty to declare that they are not members or supporters of organizations listed on the State Department’s Terrorist Exclusion List, a requirement placed on all new state employees (Jaschik 2006). This requirement is reminiscent of McCarthyism, but, to the best of my knowledge, so far stands alone. If that changes, the essays in Doumani’s book will look prophetic. But, as of now, they make much too much of much too little.

REFERENCES:
Ashcraft, Richard. 1986. REVOLUTIONARY POLITICS AND LOCKE’S TWO TREATISES OF GOVERNMENT. Princeton, N.J.: Princeton University Press.

Jaschik, Scott. 2006. “Are You Now or Have You Ever . . .” INSIDE HIGHER ED. http://www.insidehighered.com/news/2006/08/15/oath.

Schrecker, Ellen W. 1986. NO IVORY TOWER: MCCARTHYISM AND THE UNIVERSITIES. New York: Oxford University Press.

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© Copyright 2006 by the author, Daniel Levin.

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LAW AND CLASS IN AMERICA: TRENDS SINCE THE COLD WAR

by Paul D. Carrington and Trina Jones (eds). New York: New York University Press, 2006. 488pp. Cloth. $60.00. ISBN: 0814716547.

Reviewed by Joshua Hall, Kendrick Fellow in the Department of Economics, West Virginia University. Email: johall [at] mail.wvu.edu.

pp.775-779

LAW AND CLASS IN AMERICA: TRENDS SINCE THE COLD WAR is part of the Critical America series published by NYU Press. The series aims to provide cutting edge research on race and law in America, and this volume is no exception. In this edited volume, Duke University law professors Paul Carrington and Trina Jones have brought together twenty-one informative essays on the question of class and the law in contemporary America.

In the introductory essay, “Law Made in Skyboxes,” the editors explain that the motivation behind the book is to bring together essayists in a variety of legal fields to consider the question of whether the United States is entering into a second Gilded Age. More precisely, they are concerned with how the law may have become less protective of the disadvantaged in recent decades. The volume is organized into four parts, each part revolving around a different theme related to law and class.

Part I of LAW AND CLASS IN AMERICA features four essays that focus on the regress of the courts, legislatures, and the bar. In Chapter 2, Sanford Levinson provides examples of how Republican Supreme Court Justices such as Charles Evans Hughes and Potter Stewart showed concern for the poor in their opinions. He argues that the writing of such opinions is important, even in areas where redistribution through judicial means is proscribed, because it sends a message to policymakers and citizens.

Burt Neuborne examines, in “Money and American Democracy,” the influence that the American voting system has on class participation in our democracy. He concludes that, although formal barriers to voting have been removed, the poor still face high transaction costs to voting. Combined with the growing influence of money in politics, Neuborne argues that political inequality is the same as it has always been. The nice thing about this chapter is that he provides pros and cons to several interesting electoral reforms. While I think mandatory voting is inefficient from an economic perspective because the net benefits from voting will be negative for many individuals (otherwise you would not need to make it mandatory), his arguments are well-thought out.

In Chapter 4, Judith Resnik details the shift judges have made from focusing on the process “due” to emphasizing dispute resolution through contract and arbitration. Terming the old framework “Due Process Procedure” and the new arbitration framework “Contract Procedure,” she lays out the costs and benefits of each approach. Contract procedure, for example, results in outcomes being resolved at a lower cost, [*776] but with less transparency than due process procedure. This is an excellent article on this important change in civil process.

Marc Galanter concludes the section by outlining the rise in what he calls “skybox lawyering,” or providing legal services through large law firms for corporate America. This essay is about the bifurcation of the legal profession between those who work in large law firms or for large organizations and those who represent private individuals. Galanter argues that more and more legal services are provided to the corporate sector and, as a result, fewer legal services are provided for the poor.

Part II, “Consequences: More for Those in Skyboxes,” focuses on how changes in the law have benefited the well-off. James Cox begins this section with his essay, “Fair Pay for Chief Executive Officers,” where he details the rise in CEO compensation in the United States. A primary reason for rising CEO compensation, according to Cox, is the increasing use of stock options. This chapter is one of the best in the volume because Cox does an excellent job tracing the reasons behind the rise of stock options, such as the unintended consequences of laws intended to limit executive salaries.

In “The Antitrust ‘Revolution’ and Small Business” Thomas Kauper sketches an outline of the history of antitrust law. Like Cox, Kauper does a good job trying to explain the reasons behind recent changes in U.S. antitrust policy. Ideas, people, politics, and globalization all have contributed to antitrust policy becoming more focused on efficiency and less focused on preserving small businesses. Kauper correctly concludes that, while this change has not been particularly good for small businesses, it has been good for consumers.

In Chapter 8, David Callies and Paula Franzese discuss the rise of private, sometimes gated, homeowners’ associations. The authors correctly note that, although exclusivity is one of the reasons behind the rise of gated communities, zoning often accomplishes the same thing. They suggest that the real problem is elitism underlying both zoning and homeowners’ associations, because it eliminates the development of any real sense of community.

Lawrence Zelenak discusses the declining progressivity of the federal income tax in Chapter 9. The chapter is a nice introduction to how tax cuts are framed, and the author shows how the same tax cut can be described as progressive, proportional, or regressive, depending upon the approach taken. It should be noted that he only analyzes the nature of changes themselves, not the system as a whole. Thus, the Bush tax cuts could be regressive in that most of the benefits go to the wealthy, but the federal income tax could still be progressive on the whole since the average tax rate rises with income.

The estate tax has been a recurring federal policy issue in recent years. Richard Schmalbeck looks at citizen opinion against the estate tax in “Class War and the Estate Tax: Have the Troops Gone AWOL?” Schmalbeck [*777] provides five possible hypotheses for why polls show a majority of respondents favoring the estate tax. Although the author provides a good summary of reasons why individuals might be in favor of estate tax repeal, I think he gives an incomplete picture of the efficiency argument against estate taxes. For example, he states that it is a sign of relative efficiency that people can undertake activities to avoid the tax. The fact that the estate tax changes people’s behavior is actually a sign of inefficiency because it distorts individuals’ behavior and wastes resources as people expend time and money to avoid the tax. Although these costs are difficult to quantify, they do exist and should be acknowledged in any discussion of the efficiency of the estate tax.

Part III features nine essays revolving around the theme of “And Less for Those in the Cheap Seats.” In “Trade Law, Labor, and Global Inequality,” David Trubek and Lance Compa look at the impact of globalization on labor. Trade creates winners and losers in the short run, and they want to show that workers are harmed as a result of globalization of manufacturing. Trubek and Compa do a good job of detailing the legal issues surrounding international labor standards and attempts to enforce them through trade agreements. They are weakest in their claim that workers lose as a result of globalization. While domestic workers may face job loss or reduced wages from globalization, in order to assess their overall welfare one must also factor in benefits on the consumption side as workers enjoy cheaper products produced abroad. Once that is done, it may be true that domestic workers are still worse off as a result of globalization, but that cannot be determined without a look at both sides of the picture.

The decline of collective bargaining is discussed in Chapter 12. Julius Getman examines how relatively recent changes in labor law have shifted the balance of power between unions and management to favor the latter. Getman argues that collective bargaining has disintegrated because those who interpret the National Labor Relations Act (judges and National Labor Relations Board members) have generally not come from working class or union backgrounds and thus undervalue the importance of collective bargaining. While I learned a lot about the specific case law and the important role that interpretation of the Act plays in the power of unions, I would prefer to see some specifics on how changes in board or court membership have contributed to anti-union rulings and interpretations.

In Chapter 13, Richard Speidel considers changes in the American contract system over the past fifty years. In this very interesting article, he explains that, although the content of American contract doctrine has changed very little over the past fifty years, four subtle changes around the doctrine have given more power to “strong parties” – 1) the use of standard forms; 2) the lack of movement on defining when an “adhesion contract” is unreasonable; 3) the movement toward arbitration which limits application of the protective doctrine; and 4) interest groups working [*778] on behalf of strong parties have no countervailing opposition.

Harvard University law professor Elizabeth Warren examines changes in bankruptcy law in “Congress and the Credit Industry.” Her experience on the National Bankruptcy Review Commission gives her important insights into the political economy of bankruptcy law “reform,” as she saw first hand the lobbying that accompanied change in bankruptcy laws in favor of the credit industry. She correctly notes that there exists a “profound asymmetry” in the resources creditors and debtors bring to the political arena.

I have one small quibble with the article, however. She states that “73 percent of all families have not one dollar in the stock market” (p.291). This is only true if you look at direct stock holdings. If you look at direct and indirect holdings, the number of families with money in the stock market rises considerably. For example, Poterba (1998) estimates (using an earlier version of the survey that Warren cites) that 48.8 percent of households were stockholders in 1998 once indirect ownership is taken into account.

In Chapter 15, Paul Castle discusses “The Misfortunes of the Family Farm.” Using a case study of the poultry industry, he demonstrates how poultry farms have become entangled in what amounts to a feudal relationship with large chicken producers such as Tyson Foods. Castle does a good job of laying out the economic relationship between the large poultry integrators and the small farms with which they contract to keep and raise chickens, although I get the sense from reading the article that this problem is likely to be a short-term phenomenon. If things are as bad for the small poultry farmer as Castle says, I suspect that the industry will become completely vertically integrated in the long run.

Jeffrey O’Connell and John Linehan address changes in accident law in Chapter 18. In addition to providing a good history of tort law, they outline the interest groups on both sides of recent tort reform battles. O’Connell and Linehan also lay out a new statutory regime to replace the current system of accident law, which they call “neo no-fault.”

Chapters 16 and 17 and 19 discuss recent changes in the areas of health care, higher education, and welfare, respectively. While all three of these articles are full of useful information and do a good job explaining the effect of broad policy changes on different economic classes, I finished the chapters on health care and higher education wanting a little more focus on the specifics of the legal changes that occurred during the period.

Part IV concludes the volume with two essays on the theme of “The Hierarchy in Criminal Law.” The first essay, by Margaret Berger, shows how evidence law has changed over the past twenty-five years in favor of defendants. Berger argues that, since most plaintiffs are aggrieved have-nots, changes in evidentiary rules have made it hard for the poor to challenge the status quo. Former police chief Joseph McNamara [*779] finishes the book by making a case against U.S. drug policy in “America’s Misguided War on Drugs.” He provides a useful history of U.S. drug policy and shows how federal policy has always had a disparate impact on the poor and minorities.

I learned a lot from reading this book, as it takes a very different perspective than I generally see on these issues (I am an economist by training). The authors are all very knowledgeable about their fields and the individual essays seem to work together, reflecting good editing by Carrington and Jones. The one thing I would like to have seen is more emphasis on trying to explain why the law has become less protective of the disadvantaged. While some essays, such as Richard Schmalbeck’s on the estate tax, do a good job providing reasons for why laws have changed in an area, some essays ignore causation altogether to focus on effects.

While it is important to detail the changes in the law and their impact on society, I would like to see more essays address the question of why the laws have changed. Did changes in the law cause the structure of American society to change or does causality flow the other way? It is certainly conceivable that the law in many instances merely reflects changes in the ideology of citizens.

I raise this point because I think that the relationship between the law and inequality is a difficult issue to tease out and that the assembled authors might have been able to shed some light on the causal relationship. It is not the case that I wish the assembled authors had written different essays but I do wish they had spent a little time sharing their thoughts about why these changes occurred. For individuals wishing to influence public policy, the question of causality is important because individuals interested in reversing recent legal trends need to know where to start.

REFERENCES:
Poterba, James. 1998. SHAREOWNERSHIP 1998: BASED ON THE 1995 SURVEY OF CONSUMER FINANCES. New York: New York Stock Exchange.

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© Copyright 2006 by the author, Joshua Hall.

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