LAW AND SOCIAL MOVEMENTS

by Michael W. McCann (ed). London, UK and Burlington, VT: Ashgate Publishing, 2006. 654pp. Cloth $275.00/£150.00. ISBN: 0754624978.

Reviewed by Jeffrey R. Dudas, Department of Political Science, University of Connecticut. Email: jeffrey.dudas@uconn.edu.

pp.906-910

It is appropriate that Michael McCann has compiled a volume on the topic of law and social movements for Ashgate’s INTERNATIONAL LIBRARY OF ESSAYS IN LAW AND SOCIETY series. No scholar, after all, has done more to integrate relevant public law and social movement literature than has McCann, whose RIGHTS AT WORK (1994) is a systematic dwelling on the myriad ways that social movements may pursue legal mobilization as a resource for change. McCann’s tome has influenced a generation of scholars, such that “law and social movements” is now a recognizable, and respected, specialty within the field. LAW AND SOCIAL MOVEMENTS ably captures the major contours of this field. But it also does more. Indeed, the themes of LAW AND SOCIAL MOVEMENTS radiate in three directions at once: the book reconstructs the intellectual currents that led to RIGHTS AT WORK; it documents some of the most important related scholarship produced over the last decade; and it points the way forward. As such, it is a worthy contribution, both to the study of law and social movements specifically and to the study of law and society generally.

LAW AND SOCIAL MOVEMENTS contains 22 previously-published essays and an introductory essay penned by McCann that is exclusive to the volume. The previously-published essays first appeared in a range of law reviews, political science and sociology journals, and, most prominently, interdisciplinary law and society journals (including LAW AND SOCIETY REVIEW, LAW AND SOCIAL INQUIRY, and STUDIES IN LAW, POLITICS, AND SOCIETY). This roster of journals accurately conveys how the research on law and social movements has been produced from a variety of different perspectives and from within a myriad of disciplinary sites. So too does the list of contributors to the volume reflect this diversity: it includes essays by prominent political scientists (Gerald Rosenberg, John Brigham, Neal Milner and Jonathon Goldberg-Hiller, Joel Handler, and McCann himself), sociologists (Francesca Polletta, Austin Turk, Paul Burstein, and Steven Barkan), and scholars who are affiliated with law schools (Alan Hunt and Kimberlé Williams Crenshaw).

Given this varied nature of scholars and disciplines, McCann’s introductory essay serves an important integrating and unifying purpose. To this end, McCann notes that the most direct engagements of how law-use can simultaneously advance and constrain movement goals are found in the legal-mobilization scholarship (p.xi). This scholarship examines how, in Frances Kahn Zemans’ important early formulation, ordinary people make legal [*907] claims on government to advance their interests; it emphasizes that “what the populace actually receives from government is to a large extent dependent upon their willingness and ability to assert and use the law on their own behalf” (Zemans 1983: 694). Legal-mobilization scholars typically compliment this focus on instrumental effects with an emphasis on the cultural power of law: how legal rules, symbols, and discursive conventions provide to users conceptual resources both for evaluating their own interests and for assessing the legitimacy of the world around them (McCann 1994; Scheingold 2004; Dudas 2005). Both the political and cultural dimensions of legal mobilization thus make legal strategies potentially attractive resources for the pursuit of movement goals.

Accordingly, exploration of the multiple dimensions of legal mobilization, and the potential of social movements to exploit those dimensions, is the overwhelming focus of McCann’s volume. LAW AND SOCIAL MOVEMENTS is, for example, divided thematically into 4 parts that approximate the process-based account of legal mobilization that McCann provided in RIGHTS AT WORK – an account that itself traced the political and cultural work done for movement participants by acts of legal mobilization. Thus, 6 essays (grouped by McCann in Part II of the volume and subtitled “Legal Framing and Claiming by Social Movements”) specifically elucidate the cultural aspects of legal mobilization by social movements, while 8 essays (grouped by McCann in Part III and subtitled “Legal Leveraging Power: Contestation, Containment, and Cooptation”) illuminate the more instrumental, political aspects of legal mobilization for those movements. Accordingly, 14 of the 22 essays contained in LAW AND SOCIAL MOVEMENTS forward the legal-mobilization approach directly, with McCann’s own 1991 and 1996 essays (contained in Part I – “Analytical Frameworks and Methodological Principles”) providing epistemological and methodological grounding for the studies of legal mobilization that follow. Moreover, the volume’s final section (Part IV – entitled “Law, Change, and Hegemony: Assessing Legal Mobilization Politics”) features prominent essays by Hunt, Crenshaw, and Joel Handler (amongst others) that, like the concluding chapter of RIGHTS AT WORK, assess the degree to which legal strategies might contribute to the emancipatory aims of social movements.

LAW AND SOCIAL MOVEMENTS is not, though, simply the story of how RIGHTS AT WORK was born. Instead, McCann moves beyond foundational essays and includes much scholarship that has been published in the years following the publication of RIGHTS AT WORK. 10 of the volume’s 22 essays, for example, were published after 1994. And while many of these essays rely upon the general approach presented in RIGHTS AT WORK, some of them, including especially the essays by Polletta (2000) and Goldberg-Hiller and Milner (2003), break new ground in the study of how social movements dedicated to redistributive aims have employed legal strategies. [*908]

Yet this focus on liberation, which is unyielding, offers a potentially misleading account of the relationship between law and social movements. Indeed, in arguing for a more nuanced vision of why people mobilize law, McCann acknowledges that the vast majority of the legal-mobilization scholarship is pre-occupied with the use of law by social movements that aim to unsettle existing configurations of power. Accordingly, legal-mobilization scholars have, with few exceptions, ignored the ways that social movements committed either to opposing redistributive politics or to reactionary aims have also exploited the cultural and political power of law (but see Herman 1997; Krishnan and den Dulk 2001 [included in LAW AND SOCIAL MOVEMENTS]; Goldberg-Hiller 2002; Dudas 2005; Hatcher 2005). McCann is himself sensitive to such an omission, as evidenced by his own recently published research (Haltom and McCann 2004; McCann and Dudas 2006), which focuses explicitly on the role of law in propelling New Right politics in the United States.

McCann argues that this is not the only weakness in the law and social movements canon. He notes that the existing legal-mobilization scholarship is strongly focused on American politics and is, accordingly, insufficiently comparative in nature. While there has been more research in this area in the last decade (some of which is included in LAW AND SOCIAL MOVEMENTS; see also Epp 1998 and Moustafa 2007), it remains one of the most obvious sites for future scholarship, both for legal-mobilization scholars and for the study of law and social movements.

Nor, McCann suggests, have most legal-mobilization scholars been sufficiently attentive to the emerging law and society research in the area of legal consciousness (Greenhouse, Yngvesson, and Engel 1994; Ewick and Silbey 1998; Gilliom 2001; Nielsen 2004). This research, which explores how ordinary people experience (or do not experience) law as an operative force in their lives, suggests that the capacity and inclination of people to envision law as an appropriate resource for pursuing their interests varies based upon social location (with race, gender, and class positioning emerging as particularly important factors). It is thus reasonable to suppose that such variation influences the attainment of the sort of specifically legal understanding of one’s situation that scholars frequently cite as a necessary condition for the possibility of legal mobilization by movement activists and participants alike. Systematic integration of such insights with research on law and social movements is, however, in only the nascent stages (see, for example, Lovell 2006).

McCann’s identification of these future directions for research makes LAW AND SOCIAL MOVEMENTS an even more useful volume. Indeed, because it excavates the ground on which the law and social movements field was built, provides an overview of recent important scholarship, and makes a series of substantive recommendations for ways that research should proceed, LAW AND SOCIAL MOVEMENTS is an important contribution. As such, it is a [*909] welcome addition to the libraries of all scholars who are interested either in law and social movements specifically or in law and society generally.

REFERENCES:
Dudas, Jeffrey R. 2005. “In the Name of Equal Rights: ‘Special’ Rights and the Politics of Resentment in Post-Civil Rights America.” 39 LAW AND SOCIETY REVIEW 723-758.

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

Ewick, Patricia and Susan S. Silbey. 1998. THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago, Illinois: University of Chicago Press.

Gilliom, John. 2001. OVERSEERS OF THE POOR: SURVEILLANCE, RESISTANCE, AND THE LIMITS OF PRIVACY. Chicago, Illinois: University of Chicago Press.

Goldberg-Hiller, Jonathan. 2002. THE LIMITS TO UNION: SAME-SEX MARRIAGE AND THE POLITICS OF CIVIL RIGHTS. Ann Arbor, Michigan: University of Michigan Press.

Goldberg-Hiller, Jonathan, and Neal Milner. 2003. “Rights as Excess: Understanding the Politics of Special Rights.” 29 LAW AND SOCIAL INQUIRY 1075-1118.

Greenhouse, Carol J., Barbara Yngvesson, and David M. Engel. 1994. LAW AND COMMUNITY IN THREE AMERICAN TOWNS. Ithaca, New York: Cornell University Press.

Haltom, William, and Michael W. McCann. 2004. DISTORTING THE LAW: POLITICS, MASS MEDIA, AND THE LITIGATION CRISIS. Chicago, Illinois: University of Chicago Press.

Hatcher, Laura J. 2005. “Economic Libertarians, Property and Institutions: Linking Activism, Ideas, and Identities among Property Rights Advocates.” In Austin Sarat and Stuart A. Scheingold (eds). THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE (pp.112-146). Stanford, California: Stanford University Press.

Herman, Didi. 1997. THE ANTI-GAY AGENDA: ORTHODOX VISION AND THE CHRISTIAN RIGHT. Chicago, Illinois: University of Chicago Press.

Krishnan, Jayanth K. and Kevin R. den Dulk 2001. “So Help Me God: A Comparative Study of Religious Interest Group Litigation.” 30 GEORGIA JOURNAL OF INTERNATIONAL LAW AND COMPARATIVE LAW 233.

Lovell, George I. 2006. “Justice Excused: The Deployment of Law in Everyday Political Encounters.” 40 LAW AND SOCIETY REVIEW 283-324. [*910]

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

McCann, Michael W., and Jeffrey R. Dudas. 2006. “Retrenchment…and Resurgence? Mapping the Changing Context of Movement Lawyering in the United States.” In Austin Sarat and Stuart A. Scheingold (eds). CAUSE LAWYERS AND SOCIAL MOVEMENTS (pp.37-59). Palo Alto, CA: Stanford University Press.

Moustafa, Tamir. 2007 (forthcoming). THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS, AND ECONOMIC DEVELOPMENT IN EGYPT. New York: Cambridge University Press.

Nielsen, Laura Beth. 2004. LICENSE TO HARASS: LAW, HIERARHCY, AND OFFENSIVE PUBLIC SPEECH. Princeton, NJ: Princeton University Press.

Polletta, Francesca. 2000. “The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961-1966.” 34 LAW AND SOCIETY REVIEW 367-406.

Scheingold, Stuart A. 2004. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE, 2ND EDITION. Ann Arbor, Michigan: University of Michigan Press.

Zemans, Frances Kahn. 1983. “Legal Mobilization: The Neglected Role of the Law in the Political System.” 77 AMERICAN POLITICAL SCIENCE REVIEW 690-703.

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© Copyright 2006 by the author, Jeffrey R. Dudas.

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ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY

by Cass R. Sunstein, Davide Schkade, Lisa M. Ellman, and Andres Sawicki. Washington: The Brookings Institution, 2006. 128 pp. Cloth $24.95. ISBN: 0815782349.

Reviewed by Doris Marie Provine, School of Justice & Social Inquiry, Arizona State University. Email:marie.provine [at] asu.edu.

pp.902-905

Of course judges are political. Can anyone imagine studying American politics without considering the judiciary? All the brouhaha about judicial activism suggests the relevance of partisan politics to the judicial process. A more accurate title to this empirical study might have been: HOW ARE JUDGES POLITICAL? The authors select one provocative piece of the big puzzle of judging and politics for careful consideration: the relationship between judicial votes and the appointment process. A donkey and an elephant on the dust jacket hint at the direction of their concern, which is, more specifically: whether the party affiliation of the appointing President affects the votes of judges on the federal Courts of Appeals in the contemporary era.

The authors, two distinguished professors, one in law, the other in management, and two recent law-school graduates, focus on approximately 6400 recent cases decided with full opinion by three-judge panels. The 24 areas of law represented in the sample were selected to feature the most controversial issues on the federal docket in the past decade or so – e.g. abortion, environmental protection, federalism, desegregation, criminal appeals, obscenity.

The authors count the number of liberal votes in these cases, looking for differences between judges appointed by Republican presidents (Rs for this analysis), and those appointed by Democrats (Ds). Not surprisingly, they find some differences. Individual Ds vote liberal 52 percent of the time overall, compared to 40 percent for the Rs. The authors also look for “panel effects” – indications that the make-up of the panel diminishes or augments partisan tendencies. And they find them. Put three Ds together, and the percentage of liberal votes climbs to 62 percent; three Rs produce 36 percent liberal votes. A mixed panel dampens partisan effects: an R on a panel with two Ds will lessen liberal tendencies, just a D will liberalize two RRs on a panel. Interestingly, these patterns hold across most, but not all, of the case types the authors studied. One of the surprising exceptions is criminal appeals, where there are no significant differences between Rs and Ds. Another interesting anomaly is in abortion and death penalty cases, where the individual R and D differences are clear, but there are no discernable panel effects.

The authors make much of these differences, and even occasionally slip into suggesting that the party of the appointing president is a “fairly good predictor” of how an individual judge [*903] will vote. This is a significant overstatement. The authors eliminated from consideration all cases decided without opinion, over 80 percent of the docket, and then selected the areas they deemed most controversial from those with opinions. Even in that small sample, selected to maximize partisanship, the Ds only voted liberal 12 percent more often than the Rs. An alternative reading of the data might note the overwhelming unanimity of the Courts of Appeals about what is and is not a significant legal question, and the significant agreement in the most controversial cases, with Ds voting against liberal results 48 percent of the time and Rs voting liberal in 40 percent of these cases.

The authors’ explanation for the differences they find amounts to an inductively derived theory of judicial decision-making. Federal litigation, they suggest, offers up many easy cases for which there is an obvious legally correct answer, and a much smaller number of “hard” cases for which there is no obvious answer. The absence of law in these cases forces judges to reason by analogy, and that is where attitudes and ideology come into play. They admit that the party of the appointing President is a crude proxy for judicial ideology (p.16), but nevertheless find it of great practical value for their analysis because it connects judging to the larger political system. They dismiss the “attitudinal model” that has been so heavily researched by political scientists as “less interesting” than their own approach, and less complete. It has nothing to say, for example about group effects, which have a major impact on votes in their study.

It is hard not to be irritated with the out-of-hand dismissal of so much scholarly effort, or with the fact that nearly everyone acknowledged in the book comes from the world of legal education, law practice and business, not political science. Had they rummaged around a bit in this literature, they might have found answers to a few of their questions – e.g. about the impact of being new on the bench, or why there was no immediate impact to BROWN v. BOARD OF EDUCATION. But they are right to claim that their project is distinctive. Political science attempts to show how judges are political. These authors want to demonstrate, unequivocally, that judges are political. They are comfortable treating judicial decision-making as a black box, sometimes working mechanically according to the firm lines of law, and when that is not available, following a more partisan course. The focus is on the implications of the connection they show, not on the mind of the judge. Even in discussing three-judge panels, they are more interested in outcomes than the social process of decision.

Outcomes, at this level, of course, are, to some degree, influenced by decisions in the United States Supreme Court. The authors investigate this relationship by choosing three areas in which the Court has spoken definitely in one or two important cases (abortion, obscenity, segregation). They look for changes over time in how judges in the Courts of Appeals handle cases in each area. In line with their theory that legal questions [*904] can either be easy (requiring only application of clear law) or hard (lacking a clear legal path), they expect unanimity at first because the Supreme Court has laid down the law. Over time, however, they expect a slide toward partisanship – these later cases involve questions not directly addressed in the Supreme Court’s precedent-setting opinion. This is exactly what they find in all three areas. What they have more difficulty explaining is why litigants persist in suing over issues that have been more or less conclusively resolved by the Supreme Court. A rational litigant, they presume, would not proceed with the expense of an appeal if there were not a reasonable chance of winning.

Is partisanship getting worse? Are some Presidents more inclined to appoint partisan judges than others? Are federal appeals courts becoming more conservative? The authors find answers to these questions in their data. Partisanship, as measured by differences between Rs and Ds, is increasing. Appointing Presidents do vary in their partisanship – e.g. Clinton emerges as more conservative than Johnson or Carter. And the Courts of Appeals are becoming more conservative over time. The authors are additionally able to show that some circuits tend to be more liberal than others.

The authors worry that these trends may erode public confidence in the rule of law. How must litigants feel when they know that drawing a panel of three Ds is twice as likely to lead to a liberal outcome as drawing a panel of three Rs? This question has been posed in other contexts that social scientists study, most famously in MCKLESKEY v. KEMP (1987) where Professor David Baldus showed that African Americans convicted of murdering white victims have a greater chance of the death penalty than any other racial combination of killers and victims (see Baldus and Woodworth 1997). The Supreme Court accepted the statistics, but gave them no legal significance. The difference in these two situations, of course, is that race is not supposed to correlate with outcomes, whereas our system is designed for partisanship to have a role. The question then, is what role? Should the judicial selection process be revised to dampen partisan effects – e.g. by mandating “mixed” panels, or involving a judicial selection commission in the nominations process? The authors note that federal regulatory agencies take this approach to reduce partisanship. But to follow this example in the judiciary would require openly acknowledging the indeterminacy of law, which might be worse than simply living with it.

This book is likely to be a point of reference in coming battles over the Senate’s growing involvement in the judicial nominations process. It will probably be cited by those who want the Senate to take a more active role in scrutinizing the President’s judicial choices. But this study suggests a path some Senate activists may not wish to follow. The authors ask the Senate to be realistic about its requirements. No more pretending that there is only one correct approach to statutory or constitutional understanding. The Senate should inquire into the nominee’s [*905] approach to interpretation, but with the object of maintaining a robust diversity of views, which, in the long run, will enhance judicial credibility. This book, in short, challenges the Senate and the President not to pack the courts.

ARE JUDGES POLITICAL? also challenges the Law and Courts field to be clear about its premises about the decisional process and to consider the implications of its findings. These authors see litigation as a game played by rational actors who deploy law to their advantage, while judges are umpires. Judge-umpires decide who has the best law, but when both sides are weak, they decide in a way that tends to support the politics of the President who appointed them. The authors worry about excessive partisanship in judging, believing, like John Stuart Mill, that a contest of ideas leads to a better result. Their clarity and the relatively narrow scope of their analysis make for a short, readable, book that gets to implications after only 128 pages of straight-forward, hypothesis-driven, data-mining text. The accessibility of this book makes it a good choice for teachers who want to provoke students to discuss issues on the basis of empirical evidence, and it might lead some students to think about doing this kind of research themselves.

REFERENCE:
Baldus, David and G. Woodworth (1997). RACE DISCRIMINATION IN AMERICA'S CAPITAL PUNISHMENT SYSTEM SINCE FURMAN V. GEORGIA (1972): THE EVIDENCE OF RACE DISPARITIES AND THE RECORD OF OUR COURTS AND LEGISLATURES IN ADDRESSING THIS ISSUE (report prepared for the American Bar Association).

CASE REFERENCE:
MCKLESKEY v. KEMP (1987) 481 U.S. 279.

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© Copyright 2006 by the author, Doris Marie Provine.

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A NOT-SO-DISTANT HORROR: MASS VIOLENCE IN EAST TIMOR

by Joseph Nevins. Ithaca, NY and London: Cornell University Press, 2005. 296pp. Cloth $49.95/£38.95. ISBN: 0801443067. Paper. $18.95/£13.50. ISBN: 0801489849.

Reviewed by Karol Soltan, Department of Government & Politics, University of Maryland at College Park. Email: ksoltan [at] gvpt.umd.edu.

pp.897-901

As the subtitle indicates, A NOT-SO-DISTANT HORROR by Joseph Nevins is in part a book about mass violence in East Timor, beginning with the Indonesian invasion in 1975, and ending with the killings and destruction after the independence referendum in 1999. But that story is here a backdrop for an argument about memory and responsibility.

The story of East Timor is dramatic and extreme. It can be told as a morality tale in a variety of ways. East Timor can capture you easily, if you give it a chance. Nevins has been captured. He has made numerous trips to the island; he has provided help in its struggle against the Indonesian occupier for independence, and he has written much about the country (some of it under the pen name Matthew Jardine). This will be a critical review of his book, so it is perhaps relevant that I have been captured by East Timor as well, although I was there only once in a 6 months stint working for UNTAET, the transitional government the UN provided for East Timor between 1999 and 2002.

If this were more a book about East Timor, especially about what happened there in 1999, I would sign on with some enthusiasm. When Nevins writes about that, he seems to me at his best. But this is a different book, so with some regret I must lodge a dissent.

The story of East Timor has considerable complexities, including the recent political crisis and breakdown of law and order there. But the essentials can be told briefly. Timor is a small island off the coast of northern Australia. Its western part was a Dutch colony and became part of Indonesia, when that country gained independence from the Netherlands. The eastern part of the island was a Portuguese colony, and it remained a quiet and far away outpost of the Portuguese empire until the 1974 coup in Portugal, which ended Portugal’s willingness to maintain its empire. The years 1974 and 1975 were, as a result, dramatic years in East Timorese history. Portuguese authority collapsed, and briefly East Timor belonged to the East Timorese. Disaster followed. The dominant political forces in the country were so radical that only Albania recognized its independence (remember this is 1975, Albania was then the most purist and radical of all communist countries). This did not help East Timorese prospects. A faction within the country attempted to gain control by a coup. Indonesia was ready to intervene (having first encouraged the coup). Australia was not eager to have a Cuba-equivalent just off its shores. And the US was not too happy to have another country go communist so soon after the surrender of Saigon. So the Indonesians marched in, with the more or less explicit consent of the relevant [*898] Western powers. And East Timorese independence fell victim to the logic of the Cold War.

East Timor is a small and far away country, about which the world is largely ignorant. The expectation was, I think, that after a period of some protest its residents would reconcile themselves to being part of Indonesia, which was quite diverse anyway. The only thing that distinguished East Timor from the rest of Indonesia, given this diversity, was its colonial Portuguese past. Not enough to suggest that an East Timorese identity could not accommodate itself to Indonesia. But it could not. What followed was a brutal Indonesian occupation, and a continuing battle against the East Timorese resistance. For many years no help came from outside, except for a few isolated voices in the West (including Noam Chomsky). The East Timorese fought alone, a nation of less than 1 million resisting an Indonesia of 200 million, with its modern arms supplied by the western powers. The East Timorese could echo another stateless Asian nation, the Kurds: the mountains were their only friend. And the mountains of East Timor were indeed their great ally, making continued resistance possible.

Slowly the East Timorese resistance evolved, and the world changed. Eventually, and crucially, Indonesia changed as well, so that in the last years of the second millenium East Timor had an opportunity to regain independence. In 1999 Indonesia allowed a referendum in the country with a choice of autonomy within Indonesia or independence. The campaign was full of violence and intimidation both by the Indonesian military and by pro-Indonesian East Timorese militias organized and controlled by the military, but nominally independent. “If you choose independence, in six months you will eat rocks” was one slogan Nevins cites.

The East Timorese overwhelmingly did choose independence. And the response of the Indonesian army and the militias can be seen as a concerted effort to leave nothing but rocks as they departed East Timor. In the weeks after the referendum, they carefully and systematically killed as many East Timorese as they could, stole everything that was worth stealing, and destroyed the rest. They burned house after house, block after block, leaving little to chance. They disabled power stations with considerable expertise so as to make them as difficult as possible to repair. The destruction was both unflinchingly brutal and thoroughly systematic. It was no doubt meant as punishment of the East Timorese for disobeying their Indonesian masters, and a lesson to the many other restive populations of Indonesia: should they dare to choose independence, they too will have only rocks to eat, and only rocks to sleep on.

A UN military intervention led by the Australians finally stopped the destruction, and the militias withdrew to Indonesian West Timor. For the next two years or so, the UN administered East Timor. Since 2002 the country has been independent.

This is not exactly the way Nevins tells the story. In fact, his book is in large part [*899] a sustained argument against telling the story of East Timor in the way I just did, because it neglects (forgets, suppresses) the large role of the western powers in the 24 years of war against the East Timorese. For Nevins, the reason the horrors of East Timorese history are “not-so-distant,” as his title indicates, is because “we” (the Americans and their allies or dependants) are to a great extent responsible for them. His goal is not so much to find the whys of these horrors, but the who. And his further goal is to convince us that the US shares a great deal of the responsibility.

The result is problematic. An effort to allocate responsibility makes for awkward history writing, since you need to consider at great length what would have happened if various players acted differently. And the judgments of moral responsibility which Nevins makes are both controversial, and not much argued for. It may well be that the conventional way to judge in these matters is profoundly wrong. But I would appreciate knowing why it is so. On the other hand, the required moral argument would constitute quite a detour in a book that centers on East Timor.

The issue at hand is how to evaluate the degree of your responsibility for a killing if you did not pull the trigger, and did not order the trigger to be pulled. Nevins is not much interested in those more directly responsible, the Indonesian military and the militias they organized and controlled. We all agree their responsibility is primary, and hence, I would think, the story should rightly center on them. But the central point of this book is that I am wrong. We must, if anything, focus on the responsibility of the most powerful, hence of the US. What did the US do? It gave permission for the Indonesians to invade and continued to supply them with the arms used in the suppression of the East Timorese.

As far as I can tell, East Timor was barely on the radar screen of American decision makers. It simply did not matter. The continuing hostilities there were treated as an internal Indonesian issue. I will leave it to the reader to judge how serious American responsibility therefore is for the massive killings and other horrors of the 24 years of Indonesian occupation. It seems to me clear that there is some responsibility, but how much? Enough so that we should prepare a criminal case against Kissinger? Probably not: there is a difference between killing and letting die, and there is a difference between killing and providing the guns used in the killing.

It is very likely that the US could have prevented the Indonesian invasion. It did not do so. A communist East Timor was a reasonably likely alternative. In that context it was not just the Realpolitik of the Cold War that argued against an independent East Timor. It is worth remembering that communism was (and still is in a few places) a profoundly brutal regime, responsible for the death of millions. And the memory of the anti-communist bloodbath that took place in Indonesia in the 1960s should not be a reason to forget the communist bloodbaths. [*900]

This is a book, I have said, about responsibility and memory. It is an argument that we should not forget the responsibility of the powerful of the world, and that we should in this way preserve the hope of bringing them to justice. Among its polemical targets are such leaders of East Timor as Xanana Gusmao and Ramos Horta, as well as former President Clinton, who have all argued against a preoccupation with the past and the demand for justice, and in favor of forgiveness and moving on.

I have some sympathy with Nevins when he jumps on Clinton’s “Let us forget the past” bromides expressed on the occasion of East Timor’s independence, when pressed about the past role of the US. In various ways and for various reasons it is important to remember. And of course we can only remember selectively; we have neither sufficient memory cells nor sufficient patience to do otherwise. Nevins objects that our collective memory is a whitewash of the powerful, who control what we remember. For the perspective of the powerful he wants us to substitute the perspective of the victim, as he imagines it to be. So the deep internal divisions that are a continuing problem of East Timor, and which have dramatically weakened the country’s position in the past (making it relatively easy for outsiders to provoke a civil war, or to recruit a pro-Indonesian militia) or today are hardly discussed at all. Yet they are an important part of the tragedy of East Timor. The fear of internal divisions, with their potential for another civil war, was palpable when I was there in 2000.

The spirit of the whole enterprise is well conveyed in a remarkable comment in the second paragraph of the book. Nevins is describing his impression when he arrived in Dili, East Timor’s capital, in May 2000. His impressions were very much like mine, having arrived in Dili also in May 2000. What drew our attention, and remained in our memories, was the systematic destruction we saw everywhere. It reminded me of my first memories of Warsaw in the 1950s, still only very partially rebuilt from the systematic destruction by the Nazis during the war. Nevins writes of the same destruction, that it was “reminiscent of Dresden and Tokyo following World War II” (p.3). Nevins, it seems, remembers only destruction and victimization for which the US and its Western allies were responsible. Destruction by the Nazis, and by the axis powers seems invisible to him. When I first read this passage I thought it was an odd form of distorted memory, but I was not going to make much of it in reading a book about East Timor. But one reads on, and it becomes clear this book is more about memory and responsibility, so this opening paragraph gains in importance. It reflects an oddly distorted memory.

I share a great deal with Nevins, including a special respect for the East Timorese, and their extraordinary achievement against long odds, but also including important political commitments that are not widely shared. I take it we would both agree on the desirability of a world order based on law and democracy, in which the ideal of equality before the law would be taken seriously. This is a wild idea and its [*901] proponents need to stick together. But it will not be strengthened by arguments that require the deep and unappealing moral transformation that this book urges. As far as East Timor goes: let us work to bring the Indonesians responsible for the horrors to justice (this is difficult enough), and leave Kissinger alone. And to diminish the distance from a US audience to the East Timorese, perhaps we can tell the story of their suffering and their victory as an example to inspire us, without requiring that we present the East Timorese, wholly implausibly, as thoroughly innocent saints. To achieve what they did, despite the odds, they had to overcome themselves as well as the efforts of the Indonesian army to dominate them, and the indifference of the rest of the world.

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© Copyright 2006 by the author, Karol Soltan.

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THE MAKING OF A CIVIL RIGHTS LAWYER

by Michael Meltsner. Charlottesville: University of Virginia Press, 2006. 336pp. Cloth. $34.95. ISBN: 0813925010.

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

pp.891-896

For the sociolegal scholar in a post-civil rights era (Schacter 1997), Michael Meltsner’s memoir of his professional life as a lawyer with the Legal Defense Fund is a layered treat. One part is romantic indulgence, a glimpse back into a time when civil rights had some progressive clout, when Jews and African Americans worked side by side for racial equality, and where a cause lawyer could experience “the teary, breathtaking, yearning, better-take-a-deep-breath feeling that comes from being there when people make the move of their lives and you identify with it, maybe even helped them make it” (p.76). A second part is a confirmation, clarification and sometime challenge to many of our central theories about cause lawyering on behalf of progressive social movements and the power that courts had and still have to remake our political worlds. A third part that I will leave to the delighted reader to explore personally, is the compelling literary engagement with a fascinating lawyer, and his professional, strategic and personal interactions with his teachers (Alexander Bickel stands out here), his clients (Muhammad Ali among them), his colleagues (Jack Greenberg, and Thurgood Marshall) and the familiar cases whose backgrounds and backlash he recounts (FURMAN, MCCLESKEY, GREGG, GRIGGS and BROWN).

The overwhelming sense that the civil rights era has passed into a world of growing inequality and permanent African American disadvantage (Shapiro 2004), narrowing access to courts, conservative anti-rights initiatives designed to rollback affirmative action and gay rights (Keen and Goldberg 1998), and a Supreme Court with uncertain allegiance to its own civil rights precedents (among just a few) has led to a deep ambivalence if not full-blown skepticism about the power of law and the tactic of litigation to create enduring social change (Glendon 1991; Rosenberg 1991; Scheingold 1974). In this climate of doubt, Meltsner retains an old-world optimism about law that begs the reader for indulgence or dismissal – e.g., “the world is filled with horror, and the law is a toolbox to help fix it” (p.2), and “it is my hope that new energy will be liberated by an understanding of how civil rights work grew from small beginnings into a powerful means of change” (p.14). Indulgence is worth its price. Although the sociolegal reader familiar with the empirical legal mobilization and cause lawyering literatures that Meltsner does not cite (McCann 1994; Sarat and Scheingold 2005, 2006; Scheingold and Sarat 2004) will already be prepared with the ambivalent sense that rights work as both resource and constraint, that the value of legal mobilization must be measured in many subtle ways, and that [*892] cause lawyers contribute to social change best with litigation as much as with politics (McCann and Silverstein 1998a), Meltsner’s optimism brings a new perspective. Indeed, if the growth of recent sociolegal theory has been impelled by a sense of post-civil rights skepticism about law, Meltsner illustrates that this knowledge is nothing new to LDF lawyers and that there are sophisticated ideas about the legal toolbox to learn from personal toil in the courts.

Meltsner gives us a very useful perspective on the ways that lawyers build knowledge about rights. In one chapter, he explores the difficulty that lawyers face turning the conceptual worlds of law school (Yale, in his case) into the practical worlds of litigation and social change. In numerous parts of the book, he writes about the ways that civil rights lawyers strive to see race and make it seen despite the American predilection for cognitive disassociation that hides race from consciousness, and the long history of racism that has made “racial ideas retreat into structure where they do their work invisibly” (p.12). The very intractability of race hidden behind these cultural and historical veils provides one of the strongest arguments for believing in litigation whose “very focus on a particular controversy allows problems to appear manageable even if general across-the-board solutions prove elusive” (p.177). Above all, knowledge is produced institutionally, within the LDF, through the practical struggles for civil rights.

The post-civil rights era in which civil rights litigation was slowed and made less effective in achieving social justice for African Americans is revealed through the difficulties of developing this conceptual and practical knowledge about race. Some issues were structural. Technical doctrine created by more conservative judges made what was once a traditional approach to civil rights litigation more difficult. Money for litigation dried up in part due to competition by other progressive litigating firms and the fragmentation of rights communities. When money was flush, exploratory and experimental legal efforts were easier to undertake for the LDF. Today, “much of the caseload looks defensive and reactive, as if LDF were under threat and its priorities set elsewhere” (p.172). Defendants, too, have changed, making the racist/victim, Southern/Northern frameworks that dominated the earlier years less resonant; some new types of defendants, such as the Black Panthers, upset financial backers of the LDF.

The political culture of race also made a severe impact on what the LDF could accomplish. The Moynihan Report, released in 1965, echoed throughout the progressive legal and social policy communities for years, changing the framework of LDF litigation. “Suddenly, what at least some of the time people in authority had been able to accept as a moral imperative to compensate for historic wrongs against a devalued racial group became a series of questions turning on cost-benefit analysis, balancing conflicting views and a coming to terms with multiple interests and market forces” (p.153). As the narratives of race and oppression became more complex, and the Great [*893] Society expanded, the LDF played out what Abram Chayes and Owen Fiss were only beginning to conceptualize: the changing nature of disputing that was less about the interests of discrete litigants and increasingly about the terms of public policy. Once conservative legal foundations formed in the 1970s and made civil rights a target, the degrees of freedom were clearly constricted. For Meltsner personally, these changes could be felt in the increasingly difficult relationships between Jews and Blacks, sometimes within the LDF, tensions that were exacerbated by the complexities of litigating Northern school desegregation, especially in New York.

Meltsner’s memoir suggests that civil rights also became a victim of its own successes.

LDF’s expertise, reputation, and approach had been crafted in intense battles against blatant racial classifications. As the explicit signposts marking racial separation came down and the boundary between race and poverty grew fuzzy, the odds that LDF could continue to use its arsenal of major law-reform interventions successfully grew longer (p.169).

Meltsner’s retrospective criticism of the LDF is that it preferred to chase these signposts, working with unions and other institutions already arrayed against them, often forgetting in the process the poorest victims of racism such as tenant farmers. “The NAACP had nothing like a considered strategy directed to economic matters” (p.97), he concludes. Trial efforts to delve into the racial bias in health care never went far, and “one does not see in the LDF caseload overwhelming recognition that one of the key issues for black America is the persistence of the underclass. Only a dozen cases deal with economic justice, and while these are important cases, they are the sort that will help primarily to improve the educational or employment opportunities of the middle class” (p.172).

This critique of the LDF, ironically, provides Meltsner a basis for criticizing the skeptical literature on law and social change. Meltsner takes aim at Gerald Rosenberg’s thesis in his book THE HOLLOW HOPE that BROWN, among other civil rights cases, revealed the lack of judicial efficacy and Rosenberg’s implication that politics would have had a larger payoff than litigation ever could. Meltsner suggests that Rosenberg and other scholars were in the same leaky boat with the LDF. None had ever invested conceptually or practically in the development of political strategies to complement or replace litigation, even though the scholars railed against a legal pathway to progressive change and the LDF battled its own missteps now and again.

Aside from generalities about supporting legislation, education of the electorate, or further research, neither Rosenberg nor those who follow him have much to say on this subject. The result is a diagnosis that can easily be understood to undermine one of the few accessible modes of reform available to the disempowered while providing nothing but bromides in its place (p.188).

The real story about THE HOLLOW HOPE, I think, is why it has been taken so seriously as a metaphor for the [*894] limited powers of the judiciary and why so little analysis has been given to the concrete options and practical alternatives to using the courts (p.187).

The cause lawyer literature may challenge this perspective (McCann and Silverstein 1998b), but Meltsner makes a relevant point for sociolegal scholars: for all our efforts to “decenter” law (Scheingold 2004: xxii), we too rarely examine the contexts in which we study law for other politically relevant dynamics, and we have rarely invested in counterfactual analysis to explore alternatives to litigation.

In another contribution to sociolegal scholars, Meltsner’s memoir provides an important argument about temporality that adds to his firm belief that civil rights litigation does and can still make a difference. Rosenberg, his main foil, “established only the slender truth that activists did not walk around actively citing BROWN as Scripture” (p.183). Sociolegal analysis of legal mobilization has also taken on Rosenberg and has made Meltsner’s point that there are many other ways that consciousness about law and justice was modified by the Court’s civil rights cases. But Meltsner adds to this work the importance of the longue durée, a perspective often discounted by our desire for measurable, discrete empirical results. “Americans had lived with slavery and segregation for hundreds of years; why does the fact that serious school desegregation took ten to fifteen years suggest that the Supreme Court decision played no significant part in the changes that took place in the 1960s and 1970s?” (p.186). Meltsner’s point is that looking at the picture from a lifetime of struggle in and out of the courts reveals a significant effect for BROWN (Sarat 1997). But not one without criticism. While BROWN “fostered integration and condemned a detestable racial system” and built a Black middle class, it also downplayed the constitutional goal of educational equity, exacerbated class inequality, and led to a great deal of resegregation. About BROWN, he summarizes, “we should honor it; we should lament it” (p.187).

Meltsner’s memoir of civil rights cause lawyering spans a career that links both of these divergent sentiments. His book tells us about the changes that have led to a much more perilous climate for civil rights litigation, and challenges us to refine our thinking about the progressive consequences of law. It also challenges us to reconcile our tendencies for scholarly skepticism with his own optimism about law’s contribution to social change. As a scholarly reader, I am haunted by a line that seems to force a scholarly response if only to know that our own work matters to those struggles for social justice that so many of us study with imagined solidarity. In frustration with Rosenberg, Meltsner writes, “Perhaps one shouldn’t ask scholars to do more than play their own role” (p.186). This memoir has a curious way of making us think seriously and productively about what that role ought to be.

REFERENCES:
Glendon, Mary Ann. 1991. RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE. New York: Free Press. [*895]

Keen, Lisa, and Suzanne Goldberg. 1998. STRANGERS TO THE LAW. Ann Arbor: University of Michigan Press.

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

McCann, Michael, and Helena Silverstein. 1998a. “Rethinking Law’s “Allurement”: A Relational Analysis of Social Movement Lawyers in the United States.” In Austin Sarat and Stewart A. Scheingold (eds). CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES, New York: Oxford University Press.

McCann, Michael, and Helena Silverstein. 1998b. “Rethinking Law’s “Allurement”: A Relational Analysis of Social Movement Lawyers in the United States.” In Austin Sarat and Stewart A. Scheingold (eds). CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York: Oxford.

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

Sarat, Austin. 1997. RACE, LAW, AND CULTURE : REFLECTIONS ON BROWN V. BOARD OF EDUCATION. New York: Oxford University Press.

Sarat, Austin, and Stuart A. Scheingold. 2005. THE WORLDS CAUSE LAWYERS MAKE : STRUCTURE AND AGENCY IN LEGAL PRACTICE. Stanford, CA: Stanford Law and Politics.

Sarat, Austin, and Stuart A. Scheingold. 2006. CAUSE LAWYERS AND SOCIAL MOVEMENTS. Stanford, CA: Stanford Law and Politics.

Schacter, Jane. 1997. “Skepticism, Culture and the Gay Civil Rights Debate in a Post-Civil-Rights Era.” 110 HARVARD LAW REVIEW 684-731.

Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS. New Haven: Yale University Press.

Scheingold, Stuart A. 2004. THE POLITICS OF RIGHTS : LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE (2nd ed). Ann Arbor: University of Michigan Press.

Scheingold, Stuart A., and Austin Sarat. 2004. SOMETHING TO BELIEVE IN : POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, CA: Stanford Law and Politics. [*896]

Shapiro, Thomas M. 2004. THE HIDDEN COST OF BEING AFRICAN AMERICAN : HOW WEALTH PERPETUATES INEQUALITY. New York: Oxford University Press.

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

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

GREGG v. GEORGIA, 428 U.S. 153 (1976).

GRIGGS v. DUKE POWER 401 U.S. 424 (1971).

MCCLESKY v. KEMP, 481 U.S. 279 (1987).

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© Copyright 2006 by the author, Jon Goldberg-Hiller.

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THE FIRST AMENDMENT IN CROSS-CULTURAL PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH

by Ronald J. Krotoszynski, Jr. New York: New York University Press, 2006. 336pp. Cloth $50.00. ISBN: 0814747876.

Reviewed by Kyu Ho Youm, School of Journalism and Communication, University of Oregon. E-mail: youm [at] uregon.edu.

pp.886-890

Whether or not American law interacts with foreign law more extensively, few deny its usefulness. We can learn about our law by critically comparing it with others. Significantly, comparative assessment of constitutional law in general and freedom of expression in particular has generated more sustained interest in recent years.

THE FIRST AMENDMENT IN CROSS-CULTURAL PERSPECTIVE, by Ronald J. Krotoszynski, Jr., is a welcome addition to the growing body of comparative law literature on freedom of speech. The book is broad in its subject matter. It is not limited to a particular topic such as libel or obscenity. The author’s selection of countries includes Canada, England, Germany, and Japan. These “functional participatory democracies” provide more useful free speech principles than countries with different constitutional political values or economic policies.

Why is freedom of speech a good candidate for comparative legal analysis? Krotoszynski suggests that all constitutional democracies worth their name purport to protect free speech as a right. “[M]oreover, all these polities face the same conflicts regarding the proper accommodation of competing social values when freedom of expression presents risks to other constitutional values,” he continues. “Consideration of how other nations have reconciled these competing—and conflicting—values can provide important insights into the compromises (some express, some implicit) that the constitutionally mandated free speech regime in the United States has struck” (p.xiv).

Krotoszynski’s objective is to advance our shared understanding of freedom of expression in its meaning and scope. Nonetheless, he refrains from advocating the US adoption or rejection of foreign approaches to freedom of speech as a constitutional value. Rather, he believes that American free speech doctrine and theory would be enriched by comparison with other democratic nations.

Early in his book, Krotoszynski places comparative free speech law in context. He emphasizes that a comparative approach gives American students a useful perspective to examine their basic assumptions about free speech. Given that judges routinely borrow from their colleagues in other countries, he notes, knowledge of foreign law helps understand or predict judicial decisions. He further writes that efforts to incorporate human rights as part of international public law demands growing attention to comparative legal research. [*887]

Krotoszynski, however, warns of the inherent danger of comparative legal scholarship: “reading culturally contingent meaning into legal terms of art,” on the assumption that the meaning is universal. Is the danger insuperable? Not really, according to the author. In addition to discerning meaning from foreign law texts, he urges: “One must double check unstated assumptions by reference to other materials from the relevant legal culture” to avoid reading too much or too little into foreign legal texts.

In the “Freedom of Speech in the United States” chapter, Krotoszynski frames the two key First Amendment theories – the Holmesian “marketplace of ideas” and the Meiklejohnian “democratic self-government.” He observes that the dichotomous First Amendment theories often determine how American courts rule on freedom of expression issues. By examining foreign free speech cases through the marketplace of ideas theory and the democratic self-governance theory, he tries to assess the relative strength of the theories.

Four chapters are devoted to Canada, Germany, Japan, and England. The Canada chapter is most detailed and comprehensive. The Canadian Charter of Rights and Freedoms is distinguished for its textually based rights balancing from America’s judicially categorized balancing. The author fleshes out the Charter on freedom of expression by discussing various threshold decisions of the Canadian Supreme Court.

The collective, as well as individual, notion of rights in Canadian law is sharply contrasted with the primarily individual concept of rights in the US. At the same time, the government’s affirmative role in Canada in protecting rights stands in sharp relief against the US government as a passive player in ordering constitutional rights. To Krotoszynski, the Canadian balancing of equality with free speech is better. He argues that judicial limits on the precise means of speech, not necessarily speech itself, are better than the US free speech jurisprudence, in which expression most often overrides equality interests.

The Basic Law of Germany subordinates free speech to other social interests further than the Canadian Charter of Rights and Freedoms, not to mention the First Amendment of the US. Krotoszynski posits three explanations. First, human dignity, not freedom of speech, is the preeminent constitutional value in Germany. Second, Germany, as a “militant democracy,” prohibits speech, whether political or not, if it aims to destroy self-government. And finally, the Basic Law mandates explicitly the balancing of free expression with other social interests.

The Germany chapter compares the text of the Basic Law with the First Amendment. Krotoszynski stresses the radical variation between US and Germany in their baseline notions of free speech. Under the “state action” doctrine, the First Amendment rights are secured against government violation. But in Germany, the Basic Law protects constitutional rights from government actions as well as from intrusions by private parties. [*888]

In showcasing speech as the “dispreferred freedom” in Germany, Krotoszynski discusses several landmark cases of the German Constitutional Court, addressing such matters as the dignity of the living and the deceased, the reputation of public figures, Holocaust denial, and display of Nazi symbols. The author injects his discussion of various US Supreme Court cases to highlight how German cases differ.

Overall, Krotoszynski’s analysis of US and German case law is informative. Yet his discussion of US law could have been a little bit more in-depth. For instance, he might have paid closer attention to libel of the dead in American law as a non-issue. He might also have questioned the appositeness of the American case law, as cited in German court decisions.

In the Japan chapter, Krotoszynski duly notes the adoption after World War II of the First Amendment-like guarantee of freedom of expression as a constitutional right. He claims that the Japan-US differences in legal norms are not derived from economic differences because the two countries are more similar than different economically.

The Constitution of Japan is textually compared with the First Amendment on free speech, rights balancing, judicial review, and the state action requirement. Krotoszynski’s discussion of judicial review as a relatively insignificant element of Japan’s constitutional law is thoughtful.

In discussing free speech cases of the Japanese Supreme Court, Krotoszynski discovers the Meikeljohnian theory’s considerable impact on Japan’s free speech jurisprudence. But it is unclear whether the Court’s frequent invocation of the “clear and present danger” doctrine as a balancing standard is directly connected with the First Amendment law of the US.

Krotoszynski’s analysis of Japanese libel law seems to be rather misplaced. Given that injunction was the central question in the Japanese Supreme Court’s 1970 libel case examined, it might have been better informed by the First Amendment on prior restraint. Furthermore, his assertion that HUSTLER MAGAZINE v. FALWELL provides a useful case for comparison is strained, because the 1988 intentional infliction of emotional harm issues before the US Supreme Court are quite different from the 1970 libel case of the Japanese Supreme Court. Consequently, NEAR v. MINNESOTA (1931) might have been a US case more on point.

The England chapter is intended to prove the author’s argument that “the presence or absence of a textual guarantee of speech and press rights is not as sure a predictor of actual outcomes as one might expect” (p.183). The Human Rights Act of 1998 is a textual guarantee of free speech as a right in Great Britain as provided for by the European Convention of Human Rights. Krotoszynski states, however, that the Human Rights Act does not effect a transformative change in the English free speech jurisprudence. He maintains that freedom of speech may be more [*889] affected by the right’s relative value in a particular culture than by the formal codification of a free speech guarantee.

As an illustration, Krotoszynski compares REGINA v. SECRETARY OF STATE FOR THE HOME DEP’T, EX PARTE BRIND (1991) of the British House of Lords with RUST v. SULLIVAN (1991) of the US Supreme Court. His discussion of the English and US cases establishes that the Law Lords in BRIND applied vigorously the British tradition of protecting free speech, while the US Supreme Court in RUST gave up on its First Amendment application to the case. Hence, BRIND and RUST typify the “possibilities of an unwritten constitution” and the “limits of a written constitution,” respectively.

“[T]he presence of a written guarantee protecting the freedom of speech is not a panacea,” Krotoszynski writes. “By itself, such a guarantee will do little to protect free expression in the absence of judges committed to enforcing the provision. At the same time, the absence of a written free speech guarantee need not be fatal to the recognition or vindication of free speech claims against the government. In the end, judges are far more important than text in securing human rights” (p.213).

In his concluding chapter, “Free Speech and The Culturally Contingent Nature of Human Rights,” Krotoszynski posits four evaluative perspectives on the freedom of speech as a fundamental human right. First, he considers free speech rights culturally bound, not universally definable. Still, he concedes the transnational value of free speech as an ideology of a democratic society. Second, he recognizes the significance of the constitutional text protecting the freedom of speech. Although a rights-friendly culture and an independent judiciary are important factors, he states, “[t]he unqualified protection of a right seems to embolden courts to interpret the right more broadly than does more qualified language” (p.216).

Third, Krotoszynski finds little disagreement among the nations studied about the values of free speech as a right. Rather, the Western industrial democracies diverge from each other over how to balance the speech values with other competing social objectives. What matters in the rights balancing in various societies is not what to achieve, but how to achieve it. Fourth, and finally, Krotoszynski contends that a “strong ‘margin of appreciation’” must be inevitable when assessing a nation’s protection of free speech. Free speech laws are not the laws of physics, he reasons, since there is so much variability among the free speech laws inter-culturally and intra-culturally as well.

Krotoszynski’s conclusions are revealing and forcefully presented. This is especially so when they are based on the author’s sophisticated and copiously documented comparison of the US with four advanced legal systems committed to participatory politics. The book undoubtedly challenges many of us who smugly accept American “exceptionalism” in freedom of speech and the press. As Boston University law professor Pnina Lahav did with her comparative book on press law 20 years [*890] ago, Krotoszynski helps us appreciate the value of comparative free speech with a new, penetrating perspective.

REFERENCES:
Lahav, Pnina (ed.). 1985. PRESS LAW IN MODERN DEMOCRACIES: A COMPARATIVE STUDY. New York: Longman.

CASE REFERENCES:
HUSTLER MAGAZINE v. FALWELL, 485 U.S. 46 (1988).

NEAR v. MINNESOTA, 283 U.S. 697 (1931).

REGINA v. SECRETARY OF STATE FOR THE HOME DEP’T, EX PARTE BRIND, [1991] 1 A.C. 696.

RUST v. SULLIVAN, 500 U.S. 173 (1991).

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© Copyright 2006 by the author, Kyu Ho Youm.

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LAW, POLITICS, AND MORALITY IN JUDAISM

by Michael Walzer (ed). Princeton: Princeton University Press, 2006. 224pp. Paper. $17.95/ £11.95. ISBN: 0691125082. Cloth. $55.00/£35.95. ISBN: 0691125074.

Reviewed by Martin Edelman, Department of History, Philosophy, and Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.

pp.883-885

This is a strange and difficult book to review for this journal. It is strange for two reasons. First, the law involved is Halakhah (Jewish religious law), not the law of the state. Its normative rules are derived from the Bible, the Talmud and the works of great Rabbinic decisors like Maimonides. Traditional Jews believe that they are obligated to follow Halakhah. Other Jews feel no such obligation. They are more likely to treat Halakhah as a well developed system of rabbinic morality.

Stranger yet, there is virtually no Halakhah dealing with significant political issues. As the editor, Michael Walzer, and many of the contributors point out, that is the result of Jewish statelessness for roughly 2,000 years. During the long Diaspora, the Jewish people were unable to participate in, let alone control, the political decisions of the states in which they lived. Halakhah, a system of law intended to encompass every aspect of a Jew’s life, never developed legal rules for the very issues with which the authors grapple in this volume. Instead, they are forced to tease out implications for contemporary politics from existing Halakhic rulings only vaguely related to the topics they address. Still, while this volume can not discuss legal rules, it has much to say in the realms of political theory and morality.

The difficulty adheres in the nature of any collection of essays. It is difficult to discern common themes, and some contributions are stronger and more interesting than others. The comments here will focus on those contributions this reviewer deems most noteworthy. Walzer divides the essays into three sections, and the comments here will follow that division.

Part I focuses on political order and civil society. Robert Cover’s essay notes that Halakhah is built upon mitzvoth (commandments; obligations) not individual natural rights. This may weaken ideas of equal human rights, but it strengthens ideas of shared communal responsibilities. Traditional Judaism, he maintains, can thus provide a useful corrective for the all too frequent rampant individualism in Western thought. In the struggle for universal dignity and equality, Cover understands Traditional Judaism as pointing to the obligations we each have to create societies that implement those rights.

In the very next essay, however, Suzanne Last Stone adds a cautionary note. Halakhah was developed as a normative system of a particular nation, a people that was primarily concerned with maintaining its separate existence in the Diaspora. As such it cannot easily be utilized as an authoritative basis for [*884] universalistic norms. Thus the contrast in this volume’s first two essays demonstrates why Jewish Law can be a fruitful source of norms, but it cannot be taken as a legal code for a modern, liberal State.

Part II focuses on issues of territory, sovereignty, and international society. It contains a fascinating essay by Menachem Fisch that will be of particular interest to students of Israeli politics and law. He focuses on what Halakhah requires of Observant Jews in liberal democracies as citizens and as rulers. According to Fisch, Halakhah permits—nay requires—Jewish citizens to push for policies reflecting their tradition’s values and rules, while permitting them to tolerate passively different approaches. Halakhic Judaism recognizes the existence of other value systems but not their intrinsic worth. Halakhic Jews, according to Fisch, can learn to live in a pluralist society so long as they are permitted to refrain from activities violating the obligations imposed upon them by Jewish Law.

But Halakhah distinguishes between passive toleration and active enabling. Therefore, sovereignty in a liberal democracy poses a significant problem for Observant Jews. As rulers they cannot actively and systematically assist violations of Jewish Law. They must insist that their values be embodied in the laws and policies of the state. Observant Jews cannot authorize policies that entail violations of Halakhah. “If they are to abide by their Halakhic convictions,” Fisch writes, “Orthodox Jewish legislators and members of government are powerless to do for others what they would have expected others to do for them. . . . From the administrative viewpoint of [being] the sovereign, liberal democracy and Jewish law are to a large extent diametrically opposed” (p.105). In these few sentences, Fisch has summarized the otherwise puzzling behavior, from a comparative perspective, of the Orthodox Jewish political parties in Israel.

Part III discusses issues of war and peace on which, as Michael Walzer notes, there is no Jewish theory. Jewish thinkers “focused on justice in domestic society, where they had an uncertain and subordinate place, not on justice in international society, where they had no place at all” (p.150). As one of our leading contemporary authorities on these matters, he concludes by stating that “the clearest need in the tradition . . . is to find some way to a comprehensive and unambiguous account of legitimate and illegitimate, just and unjust war making” (p.166).

Yet one may wonder at this point in history whether even an evolving rabbinic tradition can meet that need. The emergence of the first Jewish State in 2,000 years has not changed the authoritative grund norm of Halakhah. As Geoffrey Levey notes, “In Judaism, one’s obligations to the social compact, like one’s obligations generally, are determined not according to political relations or some elaborated theory of the state but according to laws understood as divine commandments or mitzvoth” (p.184). It is conformity to God’s commandments that is the measure of a Jew’s obligations, not any [*885] given political institution, structure, or arrangement. And since there is neither an authoritative text dealing with issues of war and peace, nor a single authoritative interpreter of Halakhah, Jewish Law will yield only a multiple of responses.

Volumes like LAW, POLITICS AND MORALITY IN JUDAISM provide a wealth of insights rather than comprehensive theories. But as Justice Holmes used to remark, such insights are the chief reason to keep reading and thinking.

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© Copyright 2006 by the author, Martin Edelman.

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CHALLENGING THE CHIP: LABOR RIGHTS AND ENVIRONMENTAL JUSTICE IN THE GLOBAL ELECTRONICS INDUSTRY

by Ted Smith, David A. Sonnenfeld, and David Naguib Pellow (eds). Philadelphia: Temple University Press, 2006. 368pp. Hardcover. $77.50. ISBN: 1592133290. Paper. $25.95. ISBN: 1592133304.

Reviewed by Matthew S.R. Bewig, M.A., J.D., Doctoral Candidate, Department of History, University of Florida. Email:mbewig [at] history.ufl.edu.

pp.878-882

At first glance, this is an oft-told tale well told once more. The twenty-five essays set forth in CHALLENGING THE CHIP chronicle and analyze how the rise of the consumer electronics industry has been accomplished by means of the brutal exploitation of the people who work in its factories and live in communities where its environmental effects are later felt. In short, the owners and senior managers who control and profit from the consumer electronics industry—as well as the consumers who benefit from low prices—are able to do so because other people are exploited and sickened while the environment is despoiled. Aside from the particulars (and there are literal devils lurking in the details), this is much the same story as that told by Friedrich Engels in his THE CONDITION OF THE WORKING CLASS IN ENGLAND IN 1844: industrial manufacturing firms are exploiting workers and crippling the public health much as they did in Engels’s Manchester over 150 years ago. The key ironic difference is that, while the exploitation and crippling were plain to the eye long ago, in today’s global electronics industry, with its much vaunted “clean rooms” for manufacturing and lack of obvious smokestacks, the undeserved reputation as a “clean industry” must be debunked by careful examination of often incomplete health data from all over the world.

Of course, even if the essentials remain much the same, the specifics are substantially different in today’s high-tech, globalizing economy. The book identifies three core concerns with the industry. First, electronic products are manufactured using more than a thousand toxic chemicals known to cause cancer, miscarriages, asthma and/or other health problems. Second, the industry’s profit strategy of “planned obsolescence” has caused an explosion in the number of electronics products that are replaced and discarded each year at a rate faster than they can be responsibly recycled. Third, actual product manufacturing has been shifted to low-wage countries with weak labor and environmental laws, which yields bad occupational and public health and continued poverty.

To address these concerns, the editors have divided the book into three parts: “Global Electronics,” which explores the history and political economy of the industry; “Environmental Justice and Labor Rights,” which shows how workers have organized to demand that the industry improve its record of endangering health and exploiting labor; and “Electronic Waste and Extended [*879] Producer Responsibility,” which sheds light on the literally toxic consequences for the planet of present-day electronics disposal practices. Taken together, the book’s three parts present a cradle-to-grave (i.e., manufacture to disposal) approach to the industry and its problems. Further, the authors, a mixture of academics and activists, are not content merely to describe problems; they also advocate solutions to the challenges posed by this industry. The solutions are of a decidedly progressive, rather than radical, nature, as they involve enhanced national and international regulation, organization of workers into effective, independent unions, and corporate campaigns to persuade or compel manufacturers to adopt policies more in harmony with worker health and environmental protection.

Part One, “Global Electronics,” sets forth seven essays that limn the contours of this industry. Particularly notable is Boy Lüthje’s piece, pointing to two key divergences in the industry that mask its hidden costs and make their amelioration much more difficult. First, Lüthje demonstrates a separation between manufacturing on the one hand and branding and design on the other. While subcontractors operating mainly in low-wage countries perform the actual manufacturing, well-known firms located in “advanced” countries accomplish product design and branding. This creates the impression in the latter countries, where the balance of electronics consumers reside, that the industry is a clean, post-industrial one by hiding the heavy manufacturing thousands of miles away. Second, even as the brand-name sector of the industry experiences market concentration, the manufacturing sector endures increasing fragmentation and competition, resulting in a “race to the bottom” as manufacturers attempt to increase market share by holding down wages, increasing hours, and enforcing dangerously unhealthy working conditions. As Boy notes, this economic logic makes it more difficult to hold brand-name companies responsible for the actions of their subcontractors, even though those actions constitute a necessary response to pressures emanating from the branding companies: a situation quite familiar to those who have campaigned against sweatshops in the global apparel industry.

Also worthy of praise are Joseph LaDou’s essay, “Occupational Health in the Semiconductor Industry,” which points out that the industry, despite its use of known toxic chemicals in manufacturing, took no steps to study their effect on workers’ health, and even blocked such investigations when they were attempted; Apo Leong’s and Sanjiv Pandit’s article, “‘Made in China’: Electronics Workers in the World’s Fastest Growing Economy,” which exposes the abusive working conditions, low wages, long hours, and non-enforcement of China’s labor laws; and Andrew Watterson’s piece, “Out of the Shadows and into the Gloom? Worker and Community Health in and around Central and Eastern Europe’s Semiconductor Plants,” which shows how the introduction of the semiconductor industry into post-Communist Eastern Europe has replicated much of the former regime’s [*880] abysmal environmental and public health record.

Part Two, “Environmental Justice and Labor Rights,” shifts the focus from the global political economy to local struggles by electronics industry workers against the dangerously toxic conditions under which they work. There are three essays on Silicon Valley, California, two each on Mexico and Taiwan, and one on Scotland’s “Silicon Glen.” Though the stories of corporate indifference to occupational illness and hostility to government and union attempts to address it are depressingly similar, an emerging pattern of international cooperation amongst affected workers gives cause for optimism. Indeed, the book under review is the result of such coordination, arising out of a 2002 symposium sponsored by the Silicon Valley Toxics Coalition (SVTC) and the International Campaign for Responsible Technology (ICRT), which brought together activists and academics from fifteen countries to discuss problems and propose solutions. All of the essays in this section are meritorious and well worth reading, as they demonstrate that the self-activity of the workers themselves is the necessary foundation for change, because of their inside knowledge of the industry and potential leverage over employers.

Particularly suggestive is labor leader Robert Steiert’s section-concluding essay, “Unionizing Electronics: The Need for New Strategies,” which advocates two sets of measures to increase unionization in the industry. First, to address the transnational nature of the industry and the solutions to its abuses, Steiert argues for increased emphasis on International Framework Agreements (IFAs) between Global Union Federations, such as Steiert’s own International Metalworkers’ Federation, and international electronics firms. Such agreements, which thus far are an almost exclusively European phenomenon, bind the corporate signatories (and their subcontractors) to a specific code of conduct regarding labor issues, including the rights to organize and bargain collectively, bans on child and forced labor, and workplace equality. While such agreements do not directly organize workers, Steiert contends that they “can create an environment in which workers may unionize without fear of reprisal” (p.195). Although only one US company has signed an IFA, Steiert believes that if American unions recognized the benefits of IFAs, they might win important gains, particularly a ban on “union-busting.” Second, Steiert argues that new organizing strategies, including more transnational organizing, formation of alliances with human rights and environmental advocacy groups, and changes to union structures, will be necessary to achieve organizing success. He does not, however, propose specific cutting edge strategies, such as corporate campaigns or consumer boycotts.

Part Three, “Electronic Waste and Extended Producer Responsibility,” explores the concept of “extended producer responsibility” (EPR), under which electronics manufacturers would be responsible for the environmentally sound disposal of the toxic elements found in their high-tech components. As things stand now, such “e-waste” is either dumped into landfills where it [*881] contaminates the soil and groundwater, or it is shipped to poor countries, where underpaid workers perform the dangerous work of salvaging the rare but highly toxic elements from the battered remains of yesterday’s high-tech novelties. In both scenarios, public and worker health suffer. Not only does EPR for waste make sense from an environmental perspective, authors Leslie Byster and Ted Smith, in “The Electronics Production Life Cycle. From Toxics to Sustainability: Getting Off the Toxic Treadmill,” argue that, given the tremendous energy, natural resources, and toxic wastes involved, economic as well as environmental sustainability is at issue.

These points are further amplified in Jim Puckett’s essay, “High-Tech’s Dirty Little Secret: The Economics and Ethics of the Electronic Waste Trade,” demonstrating that the exportation of e-waste to poor Asian countries, where it is salvaged under conditions extremely dangerous to worker and public health, is perfectly “rational” according to the principles of neo-classical economics. Puckett’s not entirely novel solution is to employ a system of “ecological economics” pursuant to which the value of public health, biological diversity, and other social values would be no longer externalized from the calculus of political economy, and would undermine the “rationality” of the global dumping of e-waste. Although not new but certainly worthy, there are substantial difficulties in determining how to measure these social values and then make them part of a rational economic actor’s decision making process.

Nevertheless, such issues are by no means insurmountable, as two essays, Naoko Tojo’s, “Design Change in Electrical and Electronic Equipment: Impacts of Extended Producer Responsibility Legislation in Sweden and Japan,” and David Wood’s and Robin Schneider’s, “ToxicDude.com: The Dell Campaign,” show how EPR can be implemented in the real world. The upshot of this section seems to be that a combination of worker, consumer, and political pressure can lead electronics firms to accept their responsibility for appropriate disposal of their products, as the last two referenced articles demonstrate in very different political and social contexts.

While the limited success stories relating to EPR are cause for optimism, the lack of substantial progress on the occupational health front is equally cause for concern. The thrust of this book seems to be that, because the high-tech industry has shown such prodigious technological ability in the past, it can surely use its expertise to solve the labor and environmental problems it has created. As editor Ted Smith said in a recent press release, the book “is about challenging the industry to use its incredible ingenuity to dazzle the world all over again with cleaner, greener technologies, products, and components that are free of toxics, easy to recycle, and produced without harm to those manufacturing, assembling, and disassembling them.” The question remains open whether a combination of worker, consumer, and political pressure can persuade or compel this global industry to change its business practices in ways that, despite their social utility, [*882] will likely cut into corporate profit margins. Although the consumer electronics industry is somewhat different from the global apparel industry, the continued exploitation of workers in the latter industry despite international sweatshop reform campaigns, certainly indicates that the struggle will not be an easy battle.

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© Copyright 2006 by the author, Matthew S.R. Bewig.

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INSIDE THE MASON COURT REVOLUTION: THE HIGH COURT OF AUSTRALIA TRANSFORMED

by Jason L. Pierce. Durham, NC: Carolina Academic Press, 2006. 344pp. Cloth. $50.00. ISBN: 1594600619.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy [at] politics.tamu.edu.

pp.873-877

INSIDE THE MASON COURT REVOLUTION is the “go to” book for a solid, accessible analysis of recent jurisprudential changes on Australia’s High Court, an informative explanation of why these changes occurred, and thoughtful commentary on how permanent they may be. Jason Pierce is a political scientist at the University of Dayton. Because social science studies of the High Court by Australians (or by non-Australians for that matter) are as scarce as rain in the Outback, Pierce’s book stands out like Ayers Rock in an otherwise, often-empty scholarly landscape.

Pierce’s pivotal concern is the tenuous, perhaps transitory, transformation of the High Court’s role within Australian politics during 1987-95 when Anthony Mason presided as Chief Justice of the seven-member court. Although some earlier decisions hinted at what the future might hold, the Court’s “constitutional moment” arrived in 1992 when the Court recognized the pre-existing land rights of Australia’s indigenous peoples in MABO v. QUEENSLAND. Heightening the drama of the moment, the Court also declared in other cases that Australia’s constitution, which does not have a bill of rights, nevertheless provides grounds for developing an implied rights jurisprudence. Four years later, in 1996, shortly after Mason’s retirement, the Court, still under the sway of the role it sought during the Chief Justice’s tenure, handed down WIK PEOPLES v. QUEENSLAND, which ignited a firestorm of political threats aimed at the Court’s project. The Court’s decisions challenged a jurisprudential culture that had gone unchanged since Federation in 1901 and riled a legal community still largely suspicious of legal realism.

A persuasive political story demands more than musings about legal decisions, and to this end Pierce places the Mason Court in a broader historical, doctrinal, and institutional context. He skillfully pieces together traditional analyses of court decisions with less often used (in Australia) institutional information on the Court, e.g., changes in the composition of the Court’s cases and the appearance of interveners or amici curiae, that he collected specifically for his study. The empirical building blocks to the analysis, though, come from interviews Pierce conducted with eighty senior appellate judges and a dozen leading barristers and attorneys general over the period 1997-2001. (Pierce, it should be noted, ends his analysis in 2005 after the reelection of John Howard as Prime Minister the previous year, which allows him to trace the continuing political reactions to the Mason Court.) The appellate judges included current and former High Court judges, Federal Court of Australia judges, and state [*874] appellate judges; nearly two-thirds of the senior appellate judges who make up Australia’s smallish and intimate judiciary.

The book’s appendix and an earlier article (Pierce 2002) provide useful tips for social scientists thinking of knocking on the doors of chambers and courts he succeeded in opening. Elite interviews present unique challenges, and from the evidence at hand the author met them. The frank and open comments from the interviews add color and decorative detail to Pierce’s argument. More important to the structure of his explanation, however, is the scaffolding this “tightly knit elite group” of judges and attorneys collectively put together for him as they talked about the Mason Court.

According to Pierce’s informants, the Mason Court systematically moved away from a deeply entrenched “orthodox” role in Australia’s legal system toward what turned out to be a hazardous, unstable “politicized” one. Several aspects or “dimensions” of these dueling roles emerged “organically” from interviews. The orthodox role reflects traditional British legal methodologies that Australia inherited as a former colony and continued to emulate even after independence and which were shaped by 19th century Oxford scholar Albert V. Dicey’s arguments regarding parliamentary sovereignty and judicial deference.

Orthodoxy expects certainty in judicial decisions that narrowly apply the law to the resolution of disputes between private parties. Politics and the law occupy separate realms where judges serve as caretakers guarding the boundaries between the two. Without a bill of rights and given the federal structure of Australia, orthodoxy presumed the High Court’s responsibility dealt almost exclusively with the division of powers between the states and federal government. Legal reasoning was declaratory in nature, closely bound by the text of the law, and governed by precedent. Evolution in legal rules occurred interstitially according to common law tradition as existing rules were applied to novel situations. The “politicized” role turned orthodoxy on its head. Uncertainty was acknowledged. New rationales for decisions besides text and precedent were put forward. A “public model” of High Court litigation encouraging a wider range of participants emerged. The High Court stretched its jurisprudential horizons to include public policy questions of justice and personal rights that parliament had failed to address. MABO and implied rights naturally followed. And so did political challenges and eventually the High Court’s retreat from this politicized role.

Pierce advances an “interplay thesis” to explain the trajectory of the Mason Court’s project. The thesis is eclectic in nature and contingent in application. No single factor – say, changes in the ideological mix of justices reflecting appointments to the Court by conservative Liberal governments followed by Labor governments – suffices, and not all factors are equally important or influential at the same time. So, the thesis draws from the legal, attitudinal, and neo-institutional models [*875] in the American literature to identify key variables, but Pierce’s analysis neither replicates these models nor does it necessarily advance them.

Three chapters provide an historical overview of the Australian legal system and deploy the interview data to establish how the legal community perceived the High Court’s orthodox role and how this audience interpreted the Mason Court’s innovations. Pierce supplements this information with case-level data showing increasing numbers and proportions of cases involving constitutional issues that no longer focused exclusively on the Court’s traditional “meat and potatoes” questions regarding federalism or government powers. Following these chapters, Pierce concisely and clearly explores how the Court’s legal reasoning in landmark decisions changed with how it had reconceived its judicial role. The remaining three chapters investigate the causes and timing of the changes, and the High Court’s eventual retreat to orthodoxy.

Elections and institutional changes helped establish the timing and context of the High Court’s changes, but they did not determine them. Mason was appointed Chief Justice by a Labor government, and other Labor appointments buttressed the Court’s initiatives; the Court’s key decisions were also handed down with a sympathetic Labor government in power. Still, Mason first became a High Court justice as a Liberal appointee, and he gave few signs during his early years on the bench that he harbored serious doubts about the Court’s orthodoxy. Moreover, one of his key allies during the transformation was a Liberal appointment. Pierce conscientiously ponders the question whether the Court’s decisions simply reflected the ideological differences between Liberal and Labor governments that appointed the judges but concludes the facts on the matter are mixed. Individuals mattered, but certain institutional reforms enhanced the status and autonomy of the High Court that facilitated the Mason Court’s attempt to redefine its role.

Pierce collected data for High Court judgments from 1945-2001 that revealed a shift from the private to public model that accompanied the Court’s move away from orthodoxy. This change reflected in part government legislation. Non-party interveners and amici curiae rarely appeared in the High Court before 1976, when a Liberal government amended the Judiciary Act of 1903 to allow attorneys-general of the states and territories and especially the Commonwealth’s Attorney-General to intervene in constitutional disputes. Participation by other organized interests or groups, however, remains virtually non-existent compared to the tumultuous involvement of groups in United States or even more placid Canada. Three structural reforms were more crucial to the Mason Court’s transformation.

In 1977, Australia created a Federal Court with a varied jurisdiction. The importance for the High Court is that this reform removed a sizeable number of trials, mostly involving revenue and intellectual property questions, from the Court’s docket that had been heard by individual justices. Freed from the [*876] burden of trying these cases, the High Court justices could focus their energies more sharply on their appellate functions. The second reform went into effect in 1984 when the High Court gained control over its agenda after parliament limited the right to appeal and extended the Court’s discretionary authority to grant leave to appeal. While judges and barristers disagreed over whether the High Court deliberately chose cases that would promote its transformation, Pierce’s data show the dramatic shift in the origin of cases with the switch to discretionary leaves to appeal. The last important change took place two years later in 1986 with the abolition of appeals from Australia’s courts, including the High Court, to Britain’s Privy Council. This reform removed the last vestige of the Court’s colonial status that had cast a shadow over the High Court as Australia’s final court of appeals. Peirce presents very interesting information on the outcomes of Privy Council appeals from Britain’s colonies and the Commonwealth during the 20th century and draws attention to the operation of this mostly overlooked transnational court. For Australia, its High Court no longer would be second guessed by Law Lords sitting in Westminster as members of the Judicial Committee of the Privy Council.

Throughout his book, Pierce deftly presents comparisons between the High Court and Canada’s Supreme Court and the U.S. Supreme Court. It would be appropriate therefore to follow Pierce’s example and place his study in the context of McGuire’s (2004) argument that institutionalization of the U.S. Supreme Court – i.e., its durability and autonomy – has enabled the American justices to satisfy their policy objectives. McGuire develops an index of institutionalization using seven indicators. Five are relevant to this review: the location of the Supreme Court, circuit riding, a discretionary agenda, federal judicial experience of the justices, and law clerks. Australia’s High Court did not move into its new building in Canberra until 1980, which symbolized, much like Canada’s Supreme Court move to its building overlooking the Ottawa River in 1946, a coming of age. For most of the High Court’s history, moreover, it sat alternately in Sydney or in Melbourne; rather like riding circuit.

As noted earlier, the High Court’s discretion to grant special leave to appeal, won in 1984, gave it control over its docket, like Canada’s Supreme Court in 1975. Creation of the Federal Court of Australia in 1977 created a steppingstone to the High Court, and over the past three decades several High Court justices have served on the Federal bench before being elevated. Canada’s Federal Court was established somewhat earlier in 1971 and has proven to be a less reliable path to the Supreme Court. Finally, Canada’s high court started hiring clerks in 1968, and now each justice has three clerks. Australia’s court lagged behind its Commonwealth peer, and only in the 1990s, while the Mason Court’s tide was running high, began to appoint two “associates” for each judge to perform many of the functions of the clerks in the U.S. Supreme Court. These parallels between Australia, the United States, and Canada [*877] suggest a larger story of how institutions shape judicial policy making.

The parallels break down in one important area, however. The sub-title of Pierce’s book, “The High Court of Australia Transformed,” could justifiably include a question mark. As observers of Canada’s Supreme Court note, its role changed dramatically with the advent of the Charter of Rights and Freedoms, and yet its stature – despite brickbats and criticism – has scarcely been diminished. Australia’s High Court lacks this constitutional infrastructure, and without a bill of rights, the Court’s endogenously produced attempt to transform itself lacked an independent rationale to justify a politicized role. Adverse political winds encouraged the Court’s retreat, and new appointments by Prime Minister Howard’s thrice-elected conservative Liberal government, aided by Australia’s mandatory retirement age of 70, which encouraged turnover, have dramatically changed the ideological composition of the Court. Doctrinal initiatives have been sidelined, and the Court has become more cautious. The absence of a constitutional structure to support the politicized role was like navigating the tricky and dangerous Bass Strait during the Sydney to Hobart yacht race with insufficient rigging and too much sail. The Mason Court’s chief legacy, Pierce concludes, is that its precedent-setting decisions continue to stand as alternatives to orthodoxy, which a High Court sometime in the future may pull out to chart another attempt to redefine the High Court’s role in Australia’s polity.

REFERENCES:
McGuire, Kevin T. 2004. “The Institutionalization of the U.S. Supreme Court.” 12 POLITICAL ANALYSIS 128-142.

Pierce, Jason L. 2002. “Interviewing Australia’s Senior Judiciary.” 37 AUSTRALIAN JOURNAL OF POLITICAL SCIENCE 131-142.

CASE REFERENCES:
MABO v. QUEENSLAND, [No 2] (1992) 175 CLR 1.

WIK PEOPLES v. QUEENSLAND, (1996) 187 CLR 1.

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© Copyright 2006 by the author, Roy B. Flemming.

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LAW AND NEW GOVERNANCE IN THE EU AND THE US

by Gráinne de Búrca and Joanne Scott (eds). Oxford and Portland, Oregon: Hart Publishing, 2006. 440pp. Paper. £35.00/$70.00. ISBN: 1841135437.

Reviewed by Christoph Konrath, Parliamentary Administration, Austrian Parliament. Email: christoph.konrath [at] parlament.gv.at.

pp.868-872

LAW AND NEW GOVERNANCE IN THE EU AND THE US is an important contribution to a rapidly growing scholarly, administrative, political and economic debate. “New Governance” is by no means a settled concept, and it is used in a number of contexts. Also, it is often too difficult (or not intended) to differentiate between analysis, evaluation or actual involvement (e.g. in administrative reform) of a contributor. And while “New Governance” is proposed by administrative bodies, interest groups and NGOs and intensively discussed by political and social scientists, lawyers, legal scholars and “the law” – as many might call it – carry on to have problems with this concept or are not even yet aware of it.

Thus, the aim of this volume is to explore the emergence of new approaches to governance in the European Union (EU) and the United States (US) from a legal perspective and to interrogate the relationship between constitutionalism, law and new governance. The essays represent the initial results of a research project that brings together some of the eminent researchers in the field. All of them are devoted to reporting carefully on messy facts that come along with many new governance approaches, and they draw reasoned conclusions from this close observation. The strength of this collection are its contributors, who have already shaped some key concepts of the debate and brought forth some of the most influential criticism of recent developments. Secondly, unlike other collections on new governance that tend to present a jumble of approaches to the topic or feature “an agenda,” all essays in this collection are informed by three distinct lines of inquiry. The first line of inquiry is a practical and empirical one; the second aims to interrogate the relationship between law and new governance, both through concrete case studies and conceptual reflections; and the third line of inquiry addresses the relationship between new governance and constitutionalism. In sum, this provides the reader with an overview of the praxis and theory of new governance that avoids both the extreme claim of fundamental incompatibility between law and new governance, and the claim that new governance will be law’s bright future (p.396).

All contributors do, however, apply a distinct approach to new governance, namely “democratic experimentalism.” This concept has been shaped by – among others – Michael Dorf, Oliver Gerstenberg, Charles Sabel and William H. Simon (e.g. Dorf and Sabel 1998; Gerstenberg and Sabel 2002; Sabel and Simon 2004). They emphasize the importance of “lower level actors” who are granted autonomy to “experiment with solutions of their own devising [*869] within broadly defined areas of public policy.” In return, those actors furnish central or higher-level units with information regarding their goals and – this is crucial – agree to respect framework rights of democratic procedure and substance which will be elaborated in the course of experimentation itself (Gerstenberg and Sabel 2002). This is, of course, a demanding and aspiring program which some might regard as idealistic. However, it can provide a means to reconnect the governance of a heterogenous polity to concepts of democratic legitimation and the rule of law, as it is shown in Gráinne de Búrca’s and Joanne Scott’s book.

The editors regard new governance as “a construct that has been developed to explain a range of processes and practices that have a normative dimension but do not operate primarily or at all through the formal mechanism of traditional command-and-control-type legal institutions” (p.2). Of course, such developments are not necessarily “new” viz. “recent,” but in sum they are distinctive from what has been before and how it was conceived. New governance does – increasingly – present significant practical and conceptual challenges for law and lawyers as well as for common notions of democracy, self-government and constitutionalism.

De Búrca and Scott try to capture these challenges in three – admittedly – tentative theses which have a descriptive as well as a normative dimension and serve as a framework for the articles that follow: the “gap thesis” attests to the existence of disparity between formal law and the practice of governance. This thesis can be based on the “blindness” of legal texts to the various modes and forms of new governance, as well as on the view that law can and will be an impediment to new governance (viz. administrative and economic reforms). The foremost example is the (yet unratified) Constitution of Europe that does not account for the various instruments of new governance shaping the structure and policies of the EU. The second thesis is called the “hybridity thesis,” based on the co-existence and engagement of law and new governance. Thus, law and new governance are understood as mutually interdependent and sustaining. This concept is proposed in a number of articles in the present volume and comes in various shades. Lastly, the “transformation thesis” argues that “new governance has demanded, and will increasingly demand, a re-conceptualisation of our understanding of law and the role of lawyers” (p.9). This thesis claims that a lot of discussions on and about new governance are predicated upon an unduly formalistic and positivistic account of law. Such an account will, however, overlook that law as a social phenomenon in itself is necessarily shaped and informed by a number of practices, especially those of new governance. Finally, this volume tries to explore the relationship between new governance and constitutionalism – as systems of law and governance alike derive legitimacy from the constitutional framework within which they operate. This line of inquiry is of special relevance as the concept of constitutionalism is as highly elusive and contested as that of new governance, [*870] given the debates about a European Constitution.

The book is divided into four parts. Part I explores conceptual problems of new governance, law and constitutionalism. It starts with a comprehensive analytical approach to the notion of constitutionalism by Neil Walker. The discussions about EU-constitutionalism show how constitutionalism is understood and used in the current debates on new governance. In turn, Walker reconceives constitutionalism itself, viewing it as a “responsible discourse of transformation.” William H. Simon argues for the above mentioned “transformation thesis” by developing a model of “Toyota jurisprudence.” His discussion of the Toyota Production System as if it were a legal system is not only original but provides valuable insights in a system of rules and principles emphasizing the goals of learning, innovation and collective decision-making. By turning to some examples taken from public law innovation, he shows how a Toyota-like approach can actually be adopted in a legal context. David M. Trubek, Patrick Cottrell and Mark Nance conclude this conceptual overview by discussing the notions of “soft law” and “hard law” in the context of new governance in the EU. Given that there has been an increase in interest in soft law, this chapter provides a worthwhile introduction and criticism of the debate.

Part II presents a number of case studies from Europe that provide a detailed yet very accessible and well-researched analyses of new governance and law in a number of policy fields. It is here that the conceptual approaches are exemplified and confronted with empirical data. These examples demonstrate how new governance and law are interdependent and how i.e. a traditional human rights model can be supplemented by new governance. Graínne de Búrca asks whether the EU Race Discrimination Law is such a hybrid model. Claire Kilpatrick analyses EU employment governance and constitutionalism and shows how the EU has acquired and transformed governance tools already well established in the member states. Catherine Barnard argues that the principle of solidarity enshrined in the European Treaties becomes a focal point for new governance in social policy. Tamara K. Hervey explores how the regulation and reform of health care are prone to concepts of new governance. And finally, Joanne Scott and Jane Holder turn to environmental governance, long one of the principal inspirations for the debates on and the promotion of new governance.

Part III offers a number of case studies from the United States that draw on parallel or similar developments. Louise G. Trubek considers recent developments in health care regulation and analyses how new governance practices challenge the New Deal/Great Society administrative state. Orly Lobel shows how governing occupational safety requires more than promulgating rules about hazard abatement, as well as how legal barriers stand against the ends of workplace safety. Bradley C. Karkkainen argues that environmental regulation is shifting from reliance on direct regulatory prescription of [*871] mandatory rules of behaviour to more flexible regulatory strategies. Drawing on works of democratic experimentalism, he shows that some rules operate as regulatory penalty defaults that are both information-forcing and action-forcing. Further on, he introduces the concept of an “administrative destabilization right” as a legal avenue to dis-entrench failing institutions. Susan Sturm focuses on the intersection of disciplines, institutions and regulatory systems expected to co-operate under the heading of new governance. Fluency across their various domains, as well as the capacity to bridge the normative and the empirical, are exemplified by a discussion of gender equity regimes.

While the various contributions to this book examine similar developments in the EU and the US and do not feature a comparative focus, Part IV offers two comparative studies and an epilogue. Paul Magnette and Justine Lacroix compare the “European” and the “American Experience” of constitutionalism. This chapter is – of course – devoted to constitutional theory, but as the various contributors of this edition each adhere to certain concepts and visions of constitutionalism, self-government and citizen-involvement, it is of special importance to compare their attitudes with this rather sober analysis. Mark Tushnet, who has brought forth a number of forceful criticisms of new governance, confronts the contributors of the present volume with the question about the political circumstances under which some innovations become significant in shaping large-scale policy. Finally, Charles F. Sabel and William H. Simon, whose previous work is a major source of inspiration for many of the contributors, furnish the volume with an epilogue. They assess the various chapters and observations and show how these – implicitly or explicitly – support their own thesis of a major transformation of law and the legal system.

By exploring diverse policy sectors and subjects, this book offers an intriguing overview of and introduction to new governance, law and constitutionalism in praxis and theory. At the intersection of disciplines, institutions and regulatory systems expected to co-operate under the heading of new governance, the contributors demonstrate how this can actually be “done,” how the normative and the empirical can be bridged. In sum, this book challenges our understanding of law and constitutionalism in the EU and the US, and it can well serve as a starting and focal point for further and deeper discourse on new governance.

REFERENCES:
Dorf, Michael and Charles F. Sabel. 1998. “A Constitution of Democratic Experimentalism.” 98 COLUMBIA LAW REVIEW 267-463.

Gerstenberg, Oliver, and Charles F. Sabel. 2002. “Directly-Deliberative Polyarchy: An Institutional Ideal for Europe?” Joerges, Christian and Dehousse, Renaud (ed.), GOOD GOVERNANCE IN EUROPE’S INTEGRATED MARKET. Oxford, Oxford University Press. [*872]

Sabel, Charles F., and William Simon. 2004. “Destabilization Rights: How Public Law Litigation Succeeds.” 117 HARVARD LAW REVIEW 1015-1101.

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© Copyright 2006 by the author, Christoph Konrath.

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