LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY

by Bonaventura de Sousa Santos and César A. Rodríguez-Garavito (eds). Cambridge: Cambridge University Press, 2005. 440pp. Hardback. £55.00/$95.00. ISBN: 0521845408. Paperback. £24.99/$45.00. ISBN: 0521607353.

Reviewed by Benedict Sheehy, School of Law, University of Newcastle, NSW, Australia. Email: Benedict.Sheehy [at] newcastle.edu.au

pp.264-267

LAW AND GLOBALIZATION FROM BELOW is a collection of deeply insightful and challenging essays. The essays are written from a socio-legal perspective and all include case studies from around the world, with a primary focus on the developing world. This case study approach makes the book much more than a mere theoretical critique of the existing dominance of neo-liberal governments and governance. It gives the book substance, permitting exemplars of direct, largely effective, actually instance of challenge.

The editors, Bonaventura de Sousa Santos and César A. Rodríguez-Garavito,set out their political concerns in the opening paragraph:

The beginning of the new millennium has witnessed a groundswell of proposals for the transformation or replacement of the national and international legal institutions underpinning hegemonic, neoliberal globalization. Put forth by variegated counter hegemonic movements and organization and articulated through translational networks, these proposals challenge our sociological and legal imagination and belie the fatalistic ideology that ‘there is no alternative’ to neoliberal institutions. (p.1)

The editors note that the majority of studies on globalization have adopted the top-down model of globalization, which ironically is a problem. Top-down globalization analysis, the editors advise, focuses on “the diffusion of economic and legal models from the global North to the global South” (p.1). As an antidote and alternative to this approach, the essays in this collection are focused on “bottom up” globalization, with an emphasis on alternative frameworks, examining local reactions to hegemonic globalization and the international and legal aspects of and responses to such reactions.

De Sousa Santos and Rodríguez-Garavito note the development of a number of discrete movements, each challenging the neoliberal model and each with discrete characteristics, either taking on or taking in both municipal and international law, or more often straddling the two approaches and switching between them as strategically necessary. As well, the editors observe that switching between legal and political approaches has been a necessary and integral means of challenging the neoliberal hegemony.

These various strategies have been necessary, as the traditional top-down analysis, which follows on a governance approach, tends to re-marginalize and silence for a second time those generally [*265] shut out of legal and economic discussions of governance. The recognition of this subtle but important distinction leads to de Sousa Santos’ cumbersome descriptive phrase “subaltern cosmopolitan legality,” which is “a perspective or an approach rather than . . . a theory. . . . To our mind, the plurality of efforts at counter-hegemonic globalization cannot be encompassed by an overarching theory. . . . [T]he potential contribution of our approach lies in its distinctive bottom-up perspective . . . rather than in a set of fixed substantive claims . . . . [that] cannot be subsumed in a rigid general framework” (p.13).

The fourteen essays that make up the rest of the book bear out this thesis admirably. Each of the essays examines a grassroots response to a heavy-handed effort of some powerful private, public or international institution to further suppress or disenfranchise some already disadvantaged group, and the group’s innovative and largely successful response. The level of interaction with local actors in these struggles and the researchers’ intimate knowledge of the specific cases provide readers with remarkable access, in many cases to first-hand knowledge and description of situations around the world that would otherwise be wholly inaccessible.

The analyses range from responses to multinational corporations’ efforts to oppress workers through sweatshops, denying drugs to HIV/AIDS sufferers, state interactions with illegal immigrants in the US, interactions among various movements in India dealing with land rights of tribal peoples, and Brazilian efforts to deal with the same issue. Other essays include matters of participatory budgeting, again in Brazil, and struggles in Colombia.

The book is neither an anti-neo-liberal manifesto, nor an activist manual, nor polished marketing of alternative approaches to challenging neo-liberal globalization. Rather, the essays are a collection of well-written, thoroughly researched, and brilliantly thought out pieces examining specific responses to local problems in the face of large, hegemonic adversity. The essays are mostly written in clear accessible language. They are dry-eyed, although sympathetic analysis of successes, failures, and on-going challenges.

As the editors indicate, there is little in terms of generalizable method or institutions; however, there is considerable contribution to developing potential solutions. Indeed, the selection of case studies, illustrating the broad range of approaches and solutions offered by bottom-up globalizations, is a real strength of the work.

There is little discussion of socio-legal theory or analytical approaches. Nor is there a consistent or persistently dominant method—at least beyond a general commitment to case analysis. It is not clear whether this methodological approach was intentional; however, as the book is not a exposition or critique of theory, this does not detract from the book’s value.

More particularly, almost all of the essays are sharp and lively, and they engage the reader through well-selected [*266] cases. De Sousa Santos’ own writing tends to be dense and wordy. The unfortunate result may be that his important chapters (Introductory, Second and Thirteenth) serve as obstacles to the uninitiated. It is particularly lamentable that one of his chapters (albeit co-authored) forms the introduction. In addition, the two chapters of which he is sole author are longer than the others. Certainly, he is the driving force behind the work, and his contributions are important and substantial; still his style detracts from his otherwise fine contribution.

A few other essays deserve particular comment. Rodriguez-Garavito’s analysis of the switching preferences for hard and soft law among the contestants in the sweatshop fight is illuminating. He sheds light on the otherwise curious shifting sands of activist approaches to law. The law’s dual nature as both beneficial and detrimental to activists is also addressed in Rajagopal’s interesting and thorough review of the Narmada Valley struggle in India.

In addition, the Rodriguez-Garavito and Arenas chapter draws attention to the on-going struggle of local movements after “victory” and offers reasonable explanation of international NGO behaviour in abandoning such movements. While international activists must pull out and pursue other worthy causes, the local populace may find itself facing yet more battles on the same issue.

Shamir’s analysis of the Corporate Social Responsibility movement is also enlightening. Without getting lost in the details of widely-ranging views within the movement, he provides a clear, concise outline of the debate and a sharp critique of the politics involved. Shamir also offers a critical analysis of subversion by carefully coordinated corporate actors.

Larson’s review of the Texan colonias (illegal villages or slums populated by Latin Americans) is certainly a contribution that stands in its own right. She demonstrates how Latinos living on the fringes of US society have been able to smudge the line between legality and illegality and engage in successful legal efforts to create improved living situations. Her essay is particularly interesting because it deals with the tension between powerful politicians and top-down efforts at control in a developed country, and the weak illegal resident underclass forcing a bottom-up solution. It is the only chapter dealing with a case occurring in an Anglo country—something of interest and importance to a book written in English.

Houtzager’s chapter on the landless peasant movement in Brazil offers a fine explanation of the combination and coordination of legal and illegal activities. Illegal occupations were part of the strategy but drew attention of the authorities, and hence a legal focus on certain leaders. Yet, lawyers dedicated to the cause have proven instrumental in achieving specific justice in several cases.

Finally, Pureza’s chapter contrasting the development and uses of international law under the UN’s Common Heritage and the International Criminal Court is [*267] enlightening, as he teases out the tensions between the two types and uses of international law.

All in all, this book is a very readable, highly informative, critical resource for those looking at the politics of law, alternatives to the neo-liberal vision of globalization, and activism.

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© Copyright 2006 by the author, Benedict Sheehy.

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YALE LAW SCHOOL AND THE SIXTIES: REVOLT AND REVERBERATIONS

by Laura Kalman. Chapel Hill: University of North Carolina Press, 2005. 488pp. Cloth $49.95. ISBN: 0-8078-2966-8.

Reviewed by Patrick Schmidt, Department of Political Science, Southern Methodist University, email: pdschmid [at] smu.edu.

pp.261-263

There were moments in the first 359 pages of Laura Kalman’s YALE LAW SCHOOL IN THE SIXTIES, to the end of the Epilogue, when one question in particular rattled around my brain. When I turned to page 360, the beginning of an Afterword, I found Kalman articulating it: “A story about Yale Law School raises an obvious question. So What?” But in seeing the question on the page, I immediately disavowed the thought and proclaimed that Kalman worried too much. If “the sheer joy of telling” (p.360) is not enough, the responsibility to our collective memory justifies the historian’s task. Every institution has its story, and each is worth collecting. Yet, in reaction, my question morphed: why should anyone read this? Having read, as distractions in the library, the institutional histories of various universities and law firms (frequently self-glorifying), I know that you do not have to dig very deep to find both intriguing politics and some echo of the zeitgeist in individual cases.

Kalman’s counsel in the Prologue that the institutional history of Yale Law only periodically brings its intellectual history to the fore (pp.8-9) and heightens the importance of the “why read it” question. The conflict between students and faculty at Yale in the tumultuous late sixties mirrored conflicts around the country, so ideologies particular to Yale do not drive much of this tale, though they are never completely divorced from it. Given that Kalman’s concerns lie elsewhere, why push forward? If one does not have a personal connection with Yale, then the biggest reason to undertake a history of the law school might be that it was (and is) the stomping ground of giants, names we have known since we confronted graduate school reading lists. The faculty portrait on page 78 (with some absent faces) is a who’s who—to name a few: David Trubeck, Robert Bork, John Hart Ely, Alexander Bickel, Thomas Emerson, Richard Abel, Charles Black, Ronald Dworkin, William Felstiner, Harold Lasswell, Charles Reich, and Fred Rodell. The lure of some background gossip and spice (albeit with the historian’s distance) might be enough. For those appreciative of Kalman’s approach in her other work, particularly LEGAL REALISM AT YALE, 1927-1960 and THE STRANGE CAREER OF LEGAL LIBERALISM, it might not. This is not a story of mere personality, however.

The book begins against the backdrop of Langdell and the legacy that formalism left on legal education, with the Socratic method that, in the wrong hands – i.e. a professorate with pretensions – can be downright abusive. Never far from the background, too, is Harvard, which dominates the very self-conscious community at Yale Law. The long legacy of legal realism, then, both as a [*262] scholarly agenda and an approach to legal education, was to create some separation between the two schools. Students who chose Yale Law did so for its reputation of progressivism and engagement, against Harvard’s commitment to legal process and its gateway to corporate law practice. The reality was much less dramatic and noble, at least as it seemed to the Class of 1970 entering in 1967. Here begins “the sixties”—indeed, Kalman’s title is misleading, because “the sixties” is not a chronological period but a mood brought to Yale by these students.

The heart of the book (Chapters 3 to 7) explores in great detail and with considerable skill the campus politics of 1967 to 1970. With campus newspapers and meeting minutes exposed to view, Kalman lays out the goals and strategies of the leftist students fighting a faculty that felt conflicted in responding to calls for reform. Joining the fray are the newly-emergent women and African American students. The first fights concerned legal education, including the grading system and a (failed) quest for shared student-faculty governance. Fueled by the counter-culture that flourished at Yale – the image of the inflatable structures in the law school courtyard, hosting Cosmic Labs “alternative reality” events is simply wonderful – the limits to reform radicalized the students and drove movements toward national issues and more fundamental challenges to the system. Similar accounts have been written about the conflicts at other schools, and Kalman carefully attends to the parallels and divergences with those, just as she reflects on the general lessons that Yale Law offers for legal education and social change. It is a testament to the importance of Yale both then and now that its politics shed light for the reader on the contours of issues ranging from affirmative action to RUMSFELD v. FAIR. Further, the historical trail that Kalman produces is rich enough to allow those with other theoretical interests to write their own history of this period. The dynamics of legal professionalism in the academy is one such possibility, as made explicit when Alexander Bickel defends faculty governance to student representatives by saying, “We’re professionals and . . . we have professional responsibilities. You wouldn’t vote on a surgeon’s techniques” (p.129). Nevertheless, the history in these chapters, as Kalman chose to write them, stands as a fine study of campus politics in the sixties, with a bonus that this story includes a law school student named Hilary Rodham. Kalman’s historical approach is refreshingly honest, with a neutrality that never disables her ability to pass judgment on the ambition and logic of the parties to the conflict.

Campus politics at Yale, and Kalman’s substantial volume, takes a turn to the next phase of the “sixties” in 1970, when a fire struck the law school library. The fire was assumed arson (the evidence remains thin) but it unified the law school community, and with it the height of radicalism burned out. Chapter 8 painstakingly details the early-1970s “purge” of six junior faculty members (including Trubek and Abel) as a way of understanding how significantly the sixties affected the faculty. More importantly, for the book as a whole, the failure to promote or tenure these six changes Kalman’s agenda. With [*263] honesty she writes, “I have struggled with this period in the law school’s history, often waking up one morning with the opposite opinion of the one I had the day before” (p.239), before noting that “the cases must be seen as intellectual, as well as institutional, history” (p.240). What would become of legal liberalism and Yale’s legal realism? Along with the second half of Chapter 8, Chapter 9, “The Most Theoretical and Academically Oriented Law School in America,” will undoubtedly be the favorite chapter for many readers, because it brings wider meaning to Yale’s institutional history (and the competition with Harvard) by exploring the path of Critical Legal Studies, the New Legal Process, and to a lesser extent other movements such as Law and Economics. Numerous scholars receive attention, from Rawls to Ackerman and Mashaw to Minow, providing a useful window on the intellectual map of the present day. The only drawback of this chapter may be that it does not stand alone very well; so much depends on the 272 pages that come before it. The denouement blends the institutional history back into this intellectual one, to learn how Yale recovered, post-1970, just fine. Kalman’s choice of a photo (p.356) tells it all: the visit from two alums, student political leaders in the vital period who, two decades later, were the occupants of the White House.

That ironic juxtaposition of radicals becoming the establishment is emblematic of the greatest conclusions Kalman offers, which concern legal education more than legal ideas. For whatever the depth of the radical challenge and the “crisis” that gripped the campus, today the continuities outweigh the differences. No better testament to how far (or, rather, how little distance) legal education has come can be found than the journey of Duncan Kennedy through this book. Author of “How the Yale Law School Fails—A Polemic,” an assault on the “collective terror” of the Socratic method as practiced while a student in that vanguard class of 1970, Kennedy ended up a professor at Harvard Law School as a Langdellian instructor of doctrine (p.361), albeit with a politically-conscious touch. These are important observations available to us here with the historian’s perspective, skillfully done. Although page-by-page much of the “action” seemingly will be of interest only to those vested in Yale’s inside baseball, in the aggregate Kalman has produced an institutional history that is very much worth reading.

REFERENCES:
Kalman, Laura. 1986. LEGAL REALISM AT YALE, 1927-1960. Chapel Hill: University of North Carolina Press.

Kalman, Laura. 1998. THE STRANGE CAREER OF LEGAL LIBERALISM. New Haven: Yale University Press.

CASE REFERENCE:
RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS (FAIR), 547 US ___ (2006).

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© Copyright 2006 by the author, Patrick Schmidt.

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HE CULTURE OF CONSERVATIVE CHRISTIAN LITIGATION

by Hans J. Hacker. Lanham, MD: Rowman & Littlefield, 2005. 232pp. Cloth. $70.00. ISBN: 0-7425-3445-6. Paper. $26.95. ISBN: 0-7425-3446-4.

Reviewed by Laura J. Hatcher, Visiting Assistant Professor, Departments of Political Science and Legal Studies, University of Wisconsin at Madison; and Assistant Professor, Department of Political Science, Southern Illinois University at Carbondale. Email: lhatcher [at] wisc.edu.

pp.256-260

Over the course of the last decade, many researchers have turned their attention to efforts by various conservative groups in the US to change the law, legal institutions, and society through legal practice. Among other findings of this developing body of scholarship is that what is sometimes called “the conservative legal movement” is in fact multifaceted, with litigators within the movement vying for clients, arguing over the best legal positions to take, and competing for resources (See e.g., Heinz et al. 2002; Southworth 2004; Southworth 2005; Den Dulk 2002; Den Dulk forthcoming; Hatcher 2005; Dudas 2006; McCann and Dudas forthcoming). And although there is a growing body of journal articles, book chapters, and other works still in-progress, Hans Hacker has completed one of the first book-length projects to be published (see Lee Epstein’s CONSERVATIVES IN COURT (1985) on these issues within political science). Scholars interested in the broader conservative movement, the conservative legal movement, Christian litigation, as well as contemporary issues in civil liberties and civil rights will want to have it on their shelf.

While it is a slim volume, Hacker provides a fascinating description of key organizations and individuals involved in conservative Christian litigation. This description alone, drawn from his extensive interviews with key actors, as well as review of various primary sources, makes it a valuable contribution to our understanding of the conservative legal movement. And although Hacker could have developed a stronger analysis of the role of religious ideology to facilitate more nuanced portraits of the organizations, the flaws are far from fatal in this clearly written and engaging work. Indeed, what we have here is a provocative book that raises some interesting questions for future research. Because of this, the following review will both engage Hacker’s work and also briefly touch upon some potential avenues for research to which it leads.

Hacker begins with a discussion of the importance of understanding political culture. He relies on Aaron Wildavsky’s work and asserts that the values shared by individuals in organizations partly legitimate the practices we find among Christian litigators. Paralleling Wildavsky, Hacker argues that the “preconfigured set of values and socially viable options, provide structure for individuals and organizations” (p.10). By examining the culture of the conservative Christian litigators, he hopes to identify core group values as well as broad group goals, and then provide a systematic study of their [*257] political actions. Thus, Hacker organizes his discussion around three key points: the characteristics of organizational life; goals, structure and resources; litigation emphases and behavior. He proceeds through case studies of three important organizations—the American Center for Law and Justice (ACLJ), the Liberty Counsel, and the American Family’s Association’s Center for Law and Policy (CLP). In the descriptions of their strategies, resources, and the individual lawyers, the reader is provided a remarkable portrait demonstrating variation among a group of activist lawyers sometimes discussed casually in the media as if they are monolithic in their understandings of what the law ought to be. And, simultaneously, Hacker provides a sense of how their written briefs and oral arguments are a product of the internal cultures of these organizations.

One of the more striking discussions comes in the fourth chapter, concerning the CLP’s self-imposed limitations on their litigation agenda. According to Hacker, the firm has carefully determined one of its primary objectives to be a desire for policy influence. The CLP, unlike the other two firms, pursues trial-level litigation, and though it sometimes is involved with intermediate level appellate work, it rarely litigates precedent-setting appellate cases. In order to streamline their work, they have placed limitations on their litigation activity that include engaging in cases involving government action (rather than cases that involve private employers or private individuals); and they rarely file as amicus curiae (a well worn strategy of conservative litigators – see O’Connor and Epstein 1983). Along with these two internal limitations, a third, external, limitation is placed on the firm’s activity due to its choice to settle many of its cases: much of its work is not part of the public litigation record. Hacker explains that mediated conflicts, as well as assistance provided to local governments in creating particular policies have been rendered invisible to the public eye, yet this work is highly valued by the firm (p.113).
One wonders, however, what the CLP lawyers believe the mechanism for influencing policy is when working at the trial level, given their extensive use of settlement, negotiation, and mediation as means for achieving wins for their clients. Is it the case that their policy objective is only fulfilled through their work on local government policy initiatives? Or do they believe that they have seen policy change as a result of engaging the government in cases that it settles?

It is clear from Hacker’s discussion that much of the firm’s work is carried out in the name of individual clients who have run into problems with what the firm sees as governmental violations of the civil rights of Christians. Less frequently, but also importantly, is work they have done on behalf of municipalities to defend certain types of ordinances from litigation. Equally as clear is Hacker’s assertion that their work has policy impact. But what is unclear, and matters from the perspective of political culture and the study of litigation and social change, is what mechanisms around such tactics influence public policy, what form those [*258] results take, and whether the lawyers have evidence for believing that this is an effective tool. Hacker’s account instead turns to the important work these lawyers do in drafting referenda and other policy initiatives (drafting of ordinances in municipalities being chief among them). Though not a critical gap in the study, it certainly could provide a very interesting future project for researchers to consider what possible policy implications this work has – especially when played out nationally – on norm formation through trial litigation and negotiations.

Given the literature on trial courts, settlement negotiations and mediation, there are some possible explanations (see, Mather 1995). For example, perhaps the lawyers have seen that their settlements affect behavior down the road in specific jurisdictions, and so they see broader policy implications for this large body of their work that is not part of the public record. While I suspect this to be likely, Hacker does not provide data from his interviews demonstrating such an explicit awareness on the part of his research subjects. A study of such affects would greatly enhance not only our understanding of Christian Right litigators and their influence on governmental action, but also of the way in which trial level litigation is linked to broader political and social change.

The great usefulness of organizing his chapters around the key points he identifies is that it provides the basis to compare the organizations in the last chapter of the book. Hacker does two different comparisons: one, based upon the variables he uses to structure his chapters, which are directed to understanding their litigation behavior; and, a traditional interest group comparison using goals, organizational structure and resources. He finds that limiting the assessment to a more traditional interest group approach results in a very general comparison that suggests little variation among the three organizations. However, when Hacker focuses on litigation behavior, he is able to demonstrate fairly significant differences. Moreover, he is able to account for some of these differences through a more detailed discussion of the role religious ideology plays in each organization.

This final chapter, for those scholars interested in understanding variation within the conservative legal movement, is perhaps the most interesting. Hacker describes it early on as a “tentative first step” in understanding how beliefs shape the choices these lawyers make in their litigation activity (p.137). He does, indeed, provide some ideas that we should consider as we move forward in our work on the conservative legal movement. For example, the willingness of some lawyers to be [*259] more pragmatic, while others choose to limit their activity and maintain a higher degree of idealism, is quite striking. Researchers may want to ask to what degree other conservative legal activists have followed a similar path, and whether there are significant differences between more secularly oriented-conservative litigators that follow a similar pattern. Indeed, in my own work on conservative libertarian lawyers, there are indications that some are more willing, at least some of the time, to be more pragmatic, while others find pragmatism to be problematic (Hatcher 2005). It would also be intriguing to know to what degree this difference is shaped by an intersection of religious belief (or some other form of idealism) among activist lawyers and their perceptions of the efficacy of appellate litigation to create social and political change. One suspects that, perhaps, appellate litigators are likely to find their idealism pressured in ways that those working mostly at the trial level or in state courts would not. Yet, the choice to be an appellate litigator may be shaped by multiple factors, where religious idealism is only one variable (and others might include ambition, perhaps a strong belief in upper courts as creators of social change, and so forth).

While the description of the culture of conservative Christian litigation is important and helpful, the role of cultural practices in the litigation process is obscured by the stories Hacker tells so well. In his final chapter he begins to work out a notion of cultural practices that includes the importance of religious belief in giving them shape. While I think this theoretical work needs to be advanced further, Hacker acknowledges that he is making suggestions for future work and does not make grand claims that are unsupported by his analysis. The strength of the book lies in the amount of detail and evidence Hacker provides in his descriptions, as well as the way in which he has tied the litigation activity to internal organizational culture. It is a book well worth reading, and one that should provide us with much to consider as we move this important area of research forward.

REFERENCES:
DenDulk, Kevin. 2001. “Prophets in Caesar’s Courts: The Role of Ideas in Catholic and Evangelical Rights Advocacy.” Doctoral dissertation. Madison: University of Wisconsin.

DenDulk, Kevin. Forthcoming. “In Legal Culture, But Not Of It: The Role of Cause Lawyers in Evangelical Legal Mobilization.” In Austin Sarat and Stuart Scheingold (eds). CAUSE LAWYERING AND SOCIAL MOVEMENTS. Palo Alto: Stanford University Press.

Dudas, Jeffrey. 2005. “In the Name of Equal Rights: ‘Special’ Rights and the Politics of Resentment in Post-Civil Rights America.” 39 LAW AND SOCIETY REVIEW 723-757.

Epstein, Lee. 1985. CONSERVATIVES IN COURT. Knoxville: University of Tennessee Press.

Hatcher, Laura. 2004. “Economic Libertarians, Property, and Institutions: Linking Activism, Ideas and Identities among Property Rights Activists.” In Austin Sarat and Stuart A. Scheingold (eds). THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE. Palo Alto: Stanford University Press.

Heinz, John, Anthony Paik, and Ann Southworth. 2003. “Lawyers for Conservative Causes: Clients, Ideology, and Social Distance.” 37 LAW AND SOCIETY REVIEW 5-52. [*260]

Mather, Lynn. 1995. “The Fired Football Coach (Or, How Trial Courts Make Policy).” In Lee Epstein (ed). CONTEMPLATING COURTS. Washington, D.C.: Congressional Quarterly.

McCann, Michael W. and Jeffrey Dudas. Forthcoming. “Retrenchment and Resurgence: Mapping the Changing Context of Movement Lawyering in the United States” In Austin Sarat and Stuart Scheingold (eds). CAUSE LAWYERING AND SOCIAL MOVEMENTS. Palo Alto: Stanford University Press.

O’Connor, Karen and Lee Epstein. 1983. “The Rise of Conservative Interest Group Litigation.” 45 JOURNAL OF POLITICS 479-489.

Southworth, Ann. 2004. “Professional Identity and Political Commitment among Lawyers for Conservative Causes.” In Austin Sarat and Stuart A. Scheingold (eds). THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE. Palo Alto: Stanford University Press.

Southworth, Ann. 2005. “Conservative Lawyers and the Contest Over the Meaning of ‘Public Interest Law.’” 52 UCLA LAW REVIEW 1223-1277.

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© Copyright 2006 by the author, Laura J. Hatcher.

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THE MEDICAL MALPRACTICE MYTH

by Tom Baker. Chicago and London, University of Chicago Press, 2005. 222pp. $22.50. Hardback. ISBN: 0226036480.

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

pp.253-255

Tom Baker’s THE MEDICAL MALPRACTICE MYTH tackles its complex and multi-layered subject concisely and elegantly. From the perspective of a professor of law with deep expertise in Torts and Insurance Law, Baker begins by laying out the myth: Medical malpractice litigation is exploding, and undeserving plaintiffs and their attorneys reap the benefits in the form of enormous, unjustified jury awards, while physicians struggle under the burden of unmanageable insurance premiums and sometimes must close their practices altogether. Baker is explicit about his goal for the book–“reframing the public discussion about medical malpractice lawsuits”–and his readers will likely agree that he accomplishes that goal convincingly. One of the book’s greatest strengths is its interweaving of legal, medical, and political perspectives, which will, Baker hopes, facilitate substantive discussion and foster understanding between the medical and legal communities.

Baker organizes his book into eight chapters. Chapter One lays out the myth and provides an overview of the data from the studies that he uses to debunk it. As Baker explains, the real problem is not too much litigation; it is too much medical malpractice. The real costs of medical malpractice are measured in lost lives, additional medical expenses, lost productivity, and pain and suffering. Spiraling medical malpractice premiums actually result from economic influences and insurance industry competition rather than from huge jury awards. And, although some malpractice litigation is without merit, most specious claims disappear prior to trial, and many more deserving claims never get litigated. Chapter One also contains an excellent primer on tort principles and medical malpractice liability which enables non-lawyer readers to appreciate the special complexities of malpractice litigation compared to ordinary tort law, such as automobile accident law, with which readers likely are more familiar.

Chapters Two through Seven explore and debunk various aspects of the malpractice myth in more detail. In Chapter Two, Baker elaborates on the point that medical malpractice itself, rather than lawsuits, pose the most significant danger to the public. The data from a series of well-designed studies on the prevalence of medical error provide ample support for this point. Among other ancillary points, Baker adds an important observation about risk perception–that news stories exaggerating the impact of malpractice lawsuits garner much more public attention than stories suggesting that malpractice litigation has little effect on the health care system. Chapter Three convincingly argues that the real blame for high malpractice insurance premiums lies with the insurance industry’s management of profits, losses, and [*254] reserves during fluctuations in the underwriting cycle, not with injured patients who pursue compensation in court. The rise in premiums from the mid-1980s until the early 2000s did not result from a sudden shift in rates of malpractice payouts. Insurance companies simply suffered because they chose to put larger amounts of money into reserve to compensate for years of under-funding reserves prior to the crisis. Baker predicts that this “boom and bust” underwriting cycle will recur, but that reconfiguration of the malpractice insurance market may help to dampen its impact on physicians in the future.

Chapter Four resoundingly disposes of the myth that patients file frivolous malpractice lawsuits on a regular basis and that juries award enormous damages even when doctors have not been negligent. In fact, the reason why many patients and their families sue is simply to discover the truth when physicians are unwilling to admit that they have made a medical error. Chapter Four also describes and discusses the evidence demonstrating the efficiency of the legal system in effectively distinguishing between valid and frivolous claims and adds that most people who are injured by malpractice never sue their physicians. Chapters Five, Six, and Seven, respectively, delve into the value of malpractice lawsuits in improving patient safety and compensating injured plaintiffs, the myth of defensive medicine as contributing to the high costs of medical care, and the myth that physicians’ fear of malpractice litigation together with high insurance premiums is diminishing the supply of doctors and making it more difficult for patients to obtain health care.

Finally, Chapter Eight offers a series of carefully considered reforms to address discrete problems in the existing medical malpractice litigation system. Because, as Baker reminds us, the real problem lies not in medical malpractice litigation but in too many preventable acts of malpractice, reforms must provide injured patients with access to information about the cause of their injuries so that litigation focuses on cases with merit, and patients no longer feel the need to file lawsuits simply to discover the truth of what happened to them. In connection with this proposal, Baker urges evidence-based legal reforms to achieve the following goals: 1) reducing the frequency of medical malpractice; 2) giving patients information to evaluate whether their bad medical outcomes actually resulted from medical malpractice; 3) improving compensation for medical injuries; and 4) reforming the malpractice insurance industry so that the boom and bust underwriting cycle exerts less of an impact on physicians. No one would disagree with the value of these goals, and Baker makes nice work of elaborating on the process for achieving them, including, where appropriate, acknowledgment and discussion of some significant hurdles that reformers may encounter.

Without a doubt, the book is quite timely. President Bush’s 2006 State of the Union Address included a request for medical liability reform based on the malpractice myth–that “lawsuits are driving many good doctors out of [*255] practice.” Throughout the book, Baker very effectively connects the legal arguments and the insurance and litigation data to his broader points about the politics of tort reform. Baker’s style is concise, lively, and very readable. He effectively weaves in the personal stories of particular plaintiffs to illustrate many of his broader points. The book is aimed at and accessible to a general audience, but it will also prove interesting and informative to lawyers, and to legal, medical and public health academics. Although his thesis likely would be less surprising to the latter groups, Baker’s careful construction and support of his argument makes a valuable contribution to the malpractice debate in academia. It can also serve as a fine secondary source in law school or public health courses on insurance law or medical malpractice. Even those readers who disagree with Baker’s argument and his conclusions will find the book informative and helpful in strengthening their understanding of the law and politics of the malpractice debate.

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

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MEXICAN LAW

by Stephen Zamora, José Ramón Cossío, Leonel Pereznieto, José Roldán-Xopa, and David Lopez. Oxford: Oxford University Press, 2005. 740pp. Hardback. £70.00/$195.00. ISBN: 0-19-826777-0. Paperback. £35.00/$65.00. ISBN: 0-19-928848-8.

Reviewed by Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University. E-mail: adamsk [at] lawgate.byu.edu

pp.250-252

English-speaking lawyers, law students, and scholars have long and desperately needed a basic introduction to Mexico’s legal system and law. This book, with the straight forward title, MEXICAN LAW, takes a great leap forward in filling that need. Spanish speakers especially should be grateful to the authors for their massive tome. It will save us lots of time. Rather than trying to translate and explain the basics to our English-speaking colleagues – or suggesting they just learn Spanish, we now have an excellent initial resource to recommend.

MEXICAN LAW begins with a brief legal history, describes legal education and the profession, and then sets forth the structure of the legal system and law in Mexico through a discussion of sources of law, federalism and centrism, branches of government and their relationship to law. Two chapters address the Constitution and judicial enforcement of the Constitution, including the uniquely Mexican form of amparo. The book is oriented towards a United States audience with frequent comparisons between the common law foundations of the US legal system and the civil law influences on Mexican law and process. For example, in explaining judicial procedures, the book highlights the special proceedings and sole jurisdiction of certain courts to enforce the Mexican Constitution in contrast to the judicial review available at all levels in the US system (p.257). Rather than simply describing Mexican law, the authors correctly anticipate, and then answer, the sorts of questions thoughtful readers might raise on encountering a new subject.

The bulk of the book is composed of fourteen chapters addressing specific substantive and procedural aspects of Mexican law: administrative law, civil procedure, criminal law and procedure, labor law, family law, civil and commercial codes, intellectual property law, and so on. Each of these topics could be the subject of a multi-volume treatise. Each chapter does a remarkably good job of providing a succinct introduction to the basic laws and issues associated with the topic. A reader with a question regarding, say, commercial law in Mexico could pick up the book and read a single chapter to achieve a basic familiarity with it, as the subject-specific chapters can largely be read independently. This stand-alone quality is a benefit for the reader with a quick question or particular interest, but a weakness for other audiences such as those who want to understand the bigger picture and complexities of Mexican law in context. To some degree, the initial chapters provide background and context. Even there, however, the [*251] editing suggests that the authors or publisher did not expect someone to read the entire book rather than using it as a reference. When I read the first several chapters straight through, the effect was choppy and less than fully coherent. The sections could have spoken to and supported each other better.

Perhaps some choppiness is inevitable given the number of authors (five) who participated in writing the book and the number of languages (two) in which they wrote, although I have known a great editor or two who could whip anything into shape. Some of the chapters were clearly written first in English; some were clearly translated from Spanish. The respective role of the five authors is somewhat mysterious, although the Preface notes that each author “provided drafts of several chapters,” and they all read and commented on each others’ drafts. I can only imagine the negotiation that went into ordering the authors’ names.

The one major substantive omission that limits the book is a consideration of Mexican nationality and citizenship. There is some discussion of constitutional rights of foreign nationals (pp.253-254) and foreign ownership of real property (p.497), but none on what makes one Mexican or foreign. On the one hand, it seems relatively obvious who is a Mexican national and who is not. On the other, the legal question is not so simple, particularly given the significant migration of Mexican citizens to the United States and changing Mexican law regarding dual nationality. Does Mexican law consider children born abroad to Mexican citizen parents to be Mexican citizens themselves? Are all children born in Mexico, whatever the nationality of their parents, Mexican citizens? Does Mexico allow dual nationality? The current answers are yes, yes, and yes, but such has not always been the case. A chapter on citizenship laws – the various amendments to Article 30 of the 1917 Constitution and nationality laws passed in 1934, 1993, and 1998 – could introduce the reader to the complexities of citizenship. Such a discussion would also facilitate assessment of “Mexican legal culture,” which the authors cite as “virtually impossible to explain in a general treatise” (p.x). Even if citizenship did not get a full chapter, some discourse would be helpful. There is no entry in the index for either nationality or citizenship, even hinting at their minor inclusion anywhere in the book.

All this brings me to my pet peeve regarding the current state of academic publishing: inattention to the index. The value of a book is increased ten-fold with a thorough, detailed index. It is simply a shame to put as much time, work, and bi-national cooperation into a book such as MEXICAN LAW and then leave the reader without a comprehensive index. Maybe the publisher thought that the table of contents and basic index were sufficient. If the book is meant to be a reference manual, they are not. If the book is meant to be a textbook, they are less so. Perhaps I am spoiled by searchable sources available on-line. If publishers want to maintain the value of their product in the digital age, however, an easy way to do so is to provide an [*252] excellent index to facilitate the reader’s search in hard copy.

The authors acknowledge up front the monumental task they set for themselves, that summarizing “an entire legal system in one volume is an invitation to disappointment” (p.vii). I am not disappointed; whatever my issues with it, the book is an excellent introductory source. It cannot be everything to everyone, even at over 700 pages in smallish font. I have thought about offering a law school seminar on Mexico’s law and legal system for a long time. Next year, with MEXICAN LAW as the primary text, I will.

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© Copyright 2006 by the author, Kif Augustine-Adams.

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SECURING BORDERS: DETENTION AND DEPORTATION IN CANADA

by Anna Pratt. Vancouver. University of British Columbia Press, 2005. 304pp. Hardback. $85.00. ISBN: 0774811544. Paperback. $29.95. ISBN: 0744811552.

Reviewed by Greg Marquis, Department of History and Politics, University of New Brunswick Saint John, New Brunswick, Canada, gmarquis [at] unbsj.ca

pp.246-249

In the second half of the 20th century, Canadians prided themselves on a liberal approach to refugees. For the most part prior to 1970, refugees, like the larger immigrant stream, were white and European. Reflecting changes in immigration policy, and a more humanitarian approach, by the 1970s the country was accepting increasing numbers of non-white refugees. Canada had finally signed the 1951 United Nations Convention Relating to the Status of Refugees which promised that refugees would not be deported to their homeland to face persecution. During the 1960s persons facing deportation were given the right of appeal. The Immigration Act of 1976 supposedly was a victory of liberal attitudes towards newcomers. Since that decade, the chief problem for Canada’s legal and bureaucratic apparatus has been identifying bona fide refugees and distinguishing those whom the public would deem ‘queue jumpers’ or cheats. The backlash against refugees was first noticeable in the 1980s, when public opinion, affected by high profile cases like the arrival of large groups of Tamils from Sri Lanka and Sikhs from India, influenced the Conservative government to tighten up the process. The cost associated with the refugee program, including a mounting backlog of claims, was also a politically sensitive issue. A backlash also was noticeable in the United States, where Congress passed the Illegal Immigration Reform and Immigration Responsibility Act, effective in 1997, which aimed to remove ‘undocumented’ asylum seekers and resulted in more secretive proceedings and greater use of detention.

Anna Pratt, a sociologist who teaches criminology, examines an important aspect of Canada’s refugee policy – detention and deportation – from the perspective of human rights and social justice. She sees a larger pattern in connections between the federal government’s immigration and refugee policies, public concerns about crime and welfare fraud, media reporting on immigrant communities such as Toronto’s Somalis, and the trend towards neo-liberalism. On the other hand, the history of refugee policy since World War II suggests that despite explanations about the changed nature of the post-September 11 world, attitudes towards undeserving outsiders display considerable continuity.

In keeping with a trend in academic sociology, SECURING BORDERS is not so much a study of actual policy or law enforcement, but of “the shifting and historically specific discursive formations, transformations, and technologies of power” relating to refugee detention and deportation (p.1). The discourse surrounding the 2001 Immigration and Refugee Protection Act, [*247] (IRPA) introduced by the Liberal government, was that crime and fraud, such as organized human smuggling, was a threat to Canadian national security. Pratt argues that, despite its name, the IRPA seeks to protect Canada from risky “foreign nationals” (p. 3). She reviews a number of laws and policies, and considers claims by the media and the state that on the surface have little to do with the administration of refugee law, such as welfare fraud (welfare is a provincial government program) and Bill C-36, the Anti-Terrorism Act, passed two months after the terror attacks in the United States. Around the same time the two countries concluded a Smart Border Accord. A year later Canada signed a safe third country agreement with its neighbor that made it difficult for refugees to apply for asylum at the US-Canada border. A series of publicized violent crimes in the Toronto area (the destination of many refugees to Canada) has served to underscore concerns about public safety and national security. Despite official pronouncements supporting multiculturalism, Canada was not always accepting of non-white immigrants and refugees from Asia, the Caribbean, Central and South America and Africa, the dominant sending societies of the 1990s (p.95).

According to Pratt, these policies and the discourse surrounding them are proof that attitudes toward refugees and stricter policies at the border are being governed by fears of criminality. She cites the work of Jonathan Simon and Nikolas Rose on how liberal (or neoliberal) states govern “through crime,” a process that excludes or oppresses the poor, the unemployed, minorities and immigrants (p.19). Criminologists also argue that increasing concern with victims and victims’ rights applies to immigration and refugee policy, but that the ‘victim’ is construed as the state and the broader host society. In the past, immigrants were excluded on the grounds of poor health, morality, racial homogeneity and suspected political radicalism. Starting in the 1990s, Pratt observes, many non-citizens were removed for reasons of criminality, and Citizenship and Immigration Canada (CIC) became more of an enforcement agency. An organized crime unit was added in 1994. The minister of immigration announced that deportation would focus on “criminals first” (p.161). The Royal Canadian Mounted Police continued to develop ‘risk profiles’ of international airline passengers, a practice tantamount to racial profiling. In the 1990s, with the end of the Cold War, the mandate of the Canadian Intelligence and Security Service (CSIS) was expanded to provide the government with “strategic intelligence” concerning “transnational crime in Canada” (p.166).

In keeping with the trends of neoliberalism, welfare and humanitarian programs such as refugee resettlement are framed within a discourse of penality, where the emphasis is on preventing or uncovering abuse of the system. Technology has a role to play and so does the private sector. Pratt makes much of the case study of an immigration detention center operated out of an airport hotel near Toronto. The facility is operated under contract by the Global Expertise in Outsourcing Group, formerly Wackenhut Corrections, [*248] subsidiary of a US-based private security company. She describes the inmates of such facilities as victims of “the culture of fear and disbelief” that began to reshape many aspects of Canadian public policy in the late 20th century (p.213). Pratt also explores the concept of discretion not as an absence of governance, but as a form of governance.

Refugees are not without legal tools: the Supreme Court in the 1985 SINGH case ruled that they have the same rights under the Charter of Rights and Freedoms as citizens, by declaring that the lack of oral hearings was arbitrary and a denial of fundamental justice (p.66). The Federal Court of Canada has also challenged the administration of refugee law. In 1997 and 1999, the Liberal government announced steps to lessen the burden for undocumented refugees such as Somalis (pp.131-132). Convention refugees, who are sponsored by the government or assisted by NGOs and recruited from overseas refugee camps, are viewed as “deserving” future citizens. In contrast, many European nations do not allow refugees to become citizens. But overall, the trend has been towards restriction. Bill C-86 (1992), which followed on the heels of two 1987 laws that further criminalized immigration policy, broadened the definition of criminality. Immigration officials did not have to prove a prior criminal record in order to exclude an individual (p.107).

The changes and attitudes discussed by Pratt are worrisome from human rights and legal
rights points of view, and it is unlikely that refugee policy, despite the continued horrors of civil war, state repression and ethnic violence in many parts of the world, will be liberalized in the near future. Yet Canada still has one of the more generous refugee acceptance rates among western industrialized nations. In 1989 the Immigration and Refugee Board (IRB) approved 86% of its cases; the figure fell to 58% by 2001. (The high rate for 1989 relates to the fact that most of the approved cases were assisted or sponsored ‘off shore’ refugees, as opposed to the individual or family group that show up ‘on shore’ (Jesuit Social Justice Center 2004)). The United States, with a population ten times that of Canada, since 1990 has limited visas for asylum seekers requesting permanent resident status and has created a large queue and a waiting time of more than ten years for permanent resident status, and twenty years or more for citizenship (Jesuit Social Justice Center 2004; Immigration and Refugee Services of America 2003, at 1-2). In addition, there is a heavy emphasis on detention (including of children). In 2003, Canadian detention centers and provincial jails on an average day held 440 persons. In September 2000, the U.S. Immigration and Naturalization Service detained, on an average day, 20,000 (p.43; also see Human Rights Watch 2001). Canadian refugee advocacy groups oppose the safe third country agreement between the United States and Canada because of the former’s greater use of detention and less generous provision of social and legal services (Jesuit Social Justice Center). [*249]

Finally, it is difficult to ‘prove’ that statistical variations in the detention and deportation of refugees are directly related to public or political concerns over immigrant crime, crime in general, or the presence of non-white minorities. Increases in detention and deportation for criminality may be a reflection of prevalence rates among asylum seekers, or better detection practices. Unlike Canadian citizens, all refugee claimants are fingerprinted by the RCMP (p.188). Pratt also may be guilty of interpreting the national issue from the point of view of one metropolitan area, Toronto. For the decade in which refugees allegedly were increasingly viewed as potential criminals, rather than victims, it is difficult to argue that crime was a pressing social issue on the national level. After a peak in 1991, national crime rates fell through the decade, and remained flat in 2000-02. The slight increase in 2003 was mainly attributable to crimes against property. The murder rate in 2003 was the lowest since 1967 (Statistics Canada 2004). On the other hand, it is not necessary to have high crime rates in order to ‘govern through crime.’ The recently-defeated Liberal government established a controversial national gun registry during a period of falling or stagnant crime rates, and the recently-elected Conservative minority government, as part of its “Stand Up for Canada” platform, urged voters to “Stand Up for Security.” The Conservatives promise to execute outstanding deportation orders, further tighten up the IRPA and install biometric screening technology at border crossings .

REFERENCES:
Human Rights Watch. 2001. “United States-Immigrants’ Rights, World Report.”
Available online at: http://www.hrw.org/wr2k1/usa/index.html#immigrants

Immigration and Refugee Services of America. 2003. REFUGEE REPORTS, Vol. 24 (9) (December 31, 2003).

Jesuit Social Justice Center, UNIYA. 2004. “Overview of the United States’ Asylum System.” Available online at: http://www.uniya.org/research/comparative.html

Statistics Canada. 2004. “The Daily, Wednesday, July 28, 2004.” Available online at:
http://www.statcan.ca/Daily/English/040728/d040728a.htm

CASE REFERENCE:
SINGH v. MINISTER OF EMPLOYMENT AND IMMIGRATION, [1985] 1 SCR 177.

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© Copyright 2006 by the author, Greg Marquis.

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THE CONCEPT OF INTERNATIONAL LEGAL PERSONALITY: AN INQUIRY INTO THE HISTORY AND THEORY OF INTERNATIONAL LAW

by Janne Elisabeth Nijman. The Hague: T.M.C. Asser Press, 2004. 512pp. Hardback. £70.00/$120.00. ISBN: 9067041831.

Reviewed by: Joseph Masciulli, Assistant Professor of Political Science, St. Thomas University, Fredericton, N.B., Canada. Email: jmasciul [at] stthomasu.ca

pp.242-245

Janne E. Nijman has written a comprehensive theoretical and historical study of the concept of international legal personality (ILP), engaging the foundational ideas of philosophers from the 17th century to the present. The author’s guiding question is: Have we come to the end of the concept of ILP as a foundational element of international law, or merely to the end of the Westphalian state-centric view of ILP? The author’s goal is not primarily to debate, casuistically, which other actors in addition to states should rightly be accorded international legal personality today—though she does agree that, practically, inclusiveness should be the norm.

After a general introduction (Chapter 1), Nijman develops the historical evolution of the concept of ILP (Chapters 2, 3, and 4) and stresses its marginalization in contemporary legal scholarship (Chapter 5). She concludes that the concept of ILP—properly understood not as a “mask” but rather as “vocal chords”—can be a foundational element of international law even today (Chapter 6).

Nijman stresses that the preliminary discussions of every international law textbook deal with the concept of ILP and show the latter’s current conceptual relevance, but the treatments are practical and pragmatic. The assumed background consists of the guidelines for ILP inclusion provided by the International Court of Justice REPARATIONS (1949) case: “The subjects of law in any legal system are not necessarily identical in their nature or the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life” (p.4).

That is, the international legal system determines what entities have ILP and the pragmatic and functional scope of that status. There is, however, “not much theoretical discussion… [about ILP’s] source or foundation and thus the question of which is the most original international legal person [is] no longer really addressed” (p.455). This conventional role for ILP merely keeps it trapped in the dilemma of positivism or naturalism. Does ILP first have to be recognized by the community of states to exist, or is ILP an indication of inherent rights and duties of states grounded in the rights and duties of individuals they represent?

Nijman argues that we can transcend this dilemma in a naturalist direction and advances the evaluative theory that the legal concept of ILP, interpreted according to naturalism, should be [*243] situated at the crossroads of the political, moral, and the legal realms, and should be the linchpin of the meta-legal and legal realms (p.13). On the basis of the natural law notion of humans as social beings, “a third concept emerges [between realism and cosmopolitanism], namely, although the state is the international legal person who acts, it does so representing its citizens. The ILP which enables it to act is derived from [the inherent natural rights and duties of] its citizens” (p.458).

The factual situation to which Nijman refers is a moral-political world in transition from its Westphalian (voluntarist, state-centric) and Cold-War (balance of power) pillars toward a new world order. She aspires to be one of the creators of this new order of universal community short of world federalism. This potential new order is threatened, she says, by “the underestimation of the value of healthy community life in its various forms, coupled with the underestimation of the normative value of the human need to belong” (p.459). The “real advancement or conceptual redefinition of ILP” requires that we “return to our rich heritage of natural law approaches” for which “the source of law may be found in ethics and morality”—an “anti-voluntarist position, which would at the same time attempt to avoid pure idealism by taking the hermeneutics of the self as a valuable starting point” (p.445).

Using the metaphor of the “mask” for the legal persona characteristic of the Westphalian sovereign legal system (persona understood originally as “the mask” of actors in Greek plays), Nijman insightfully suggests that we have witnessed an overall development from Leibniz to Franck and Chinkin, Ricoeur and Arendt: from a masked ball in which states’ internal structures were sealed off from their international personality as sovereign entities, to a partially unmasked ball in which states’ internal pluralism and international organization were revealed and given international personality. This process “from [state] Mask to [participatory] Vocal Chords” (p.448) is yet to be completed by an explicit re-conceptualization of ILP from its subliminal presence in our consciousness as a concept of legitimate participation (pp.456-457).

Nijman’s neo-Grotian theory of ILP, then, rests on the premise of “man’s rational and social nature” and rejects not only positivism, but also the liberal individualist perspective that views individuals as isolated and only creating societies out of self-interest (p.458). Tending more to inspirational advocacy than skeptical argument, Nijman concludes (though her objective is not to engage in practical debate [p.3]), that ILP should be attributed to nonstate actors as inclusively as possible and restrictions placed on the ILP of badly constituted states. Properly understood, the concept of ILP can serve as an intermediary between universal, abstract morality, on the one hand, and power politics, on the other hand. A well-functioning state, she argues, should have full international legal personality, but derived from its participating citizens (pp.468-469).

Her overall theory of ILP can be summarized as follows: [*244]

It is suggested here that we re-conceive ILP by using it to express that the natural right to be a person is an international right which finds its correlative duty or responsibility vested in the international community. As such it is the duty of the international community to guarantee humanity’s humanity, i.e., to protect the individual human being [possessing dignity and the right to have rights] from exclusion. The de-capacitating and silencing of the human subject is against the law of nations and is sanctioned by the international community in pursuance of its responsibility to respond adequately and appropriately to protect the human person (p. 473, the last paragraph of the book).

In our globalized world, this duty to protect (Nijman cites the United Nations’ Report on this theme [p.472]) in the first place is the state’s, but should a state fail, collapse, or fall victim to civil war or the oppression of minorities, the ILP of that state should be withdrawn or returned to the people [communal individuals] it was supposed to represent. For “the individual as a member of humanity has the natural right to be a person and must thereby be considered the first and original international legal person [since] … the institutionalized international community has the correlative responsibility to protect this natural right. The well-functioning state has full ILP, but only derived from its citizens” (p.468).

Overall, this reviewer is ambivalent about Nijman’s outstanding achievement in this marvelous book about the history and theory of ILP (though it is somewhat repetitive at times). For “ought implies can,” and the institutionalized international community simply does not have the capability to protect communal persons globally whenever and wherever they are threatened. In the realm of power politics, the United States, China, Russia, and India – and regional major powers in Africa and elsewhere – refuse to give a significant supranational capability to the United Nations Security Council or other branches of the organization, except rarely and when it suits their interests. Moreover, in addition to these states’ refusal to take off their “masks,” some of the new “voices” recognized pragmatically as subjects of international law today are playing and will play an ambiguous role. For there is also a negative, non-democratic dimension to the roles of NGOs, MNCs, and (some of the) individuals being recognized as subjects of international law today.

In conclusion, Nijman’s utopian idealism points the way to a world in which “justice [has been reconciled] with the reality of power” through a concept of ILP that guarantees a natural right to political participation, including “the right to live in a world governed by just institutions,” embodied in an international law situated “half way between morality and politics” (p.472). But we are not yet living in a (relatively) just world order and will not get closer to achieving that goal, unless those who are committed to it respond more creatively to power politics in all of its forms. The author considers her position to be “a third way” between realism and cosmopolitanism. However, after reading the entire book, the reader may well conclude, as does this reviewer, that Nijman’s position is an [*245] uncompromisingly consistent utopian, idealistic natural law version of cosmopolitanism that grants very little to realism and neo-realism on the theoretical foundations of international legal personality.

CASE REFERENCE:
REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (Advisory Opinion), 1949, ICJ Reports.

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© Copyright 2006 by the author, Joseph Masciulli.

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THE RIGHTS OF CORPORATE SPEECH: MOBIL OIL AND THE LEGAL DEVELOPMENT OF THE VOICE OF BIG BUSINESS

by Robert L. Kerr. New York: LFB Scholarly Publishing LLC, 2005. 212 pp. Cloth. $60.00. ISBN: 1593320701.

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

pp.238-241

Like Hobbes and fear, American corporations and public relations campaigns were born twins—or very nearly so. In the last three decades of the nineteenth century the rise of the American corporation altered dramatically the nation’s legal, political, and cultural institutions. The early decades of the twentieth century saw concerted efforts by corporations to affect public opinion in the form of “greatly expanded and ever more sophisticated public-relations efforts” (p.4). In THE RIGHTS OF CORPORATE SPEECH, Robert L. Kerr distinguishes between “corporate speech”—media efforts by corporations that seek to affect political outcomes or social climate—and “commercial speech” which promotes products or services. Kerr’s study focuses on the former, and one particularly famous, ground-breaking example of the genre.

In the period 1897 to 1904, corporate mergers reduced the number of American companies from 4,227 to 257 corporations and provoked what Kerr describes as “a crisis of legitimacy” (p.6) among Americans alarmed that so much power should be concentrated in so few hands. The result was the development of “both public relations as a profession and corporate efforts to influence public opinion, two phenomena that have paralleled each other closely and often merged since the late nineteenth century” (p.6).

As early as the 1880s, Westinghouse had utilized publicists, but the public relations profession can be dated to 1904 and the formation of an agency by George Parker and Ivy Lee. Their early efforts proved unsuccessful—partly because “the messages too often represented simply an effort to manufacture whatever might pass publicly as truth,” and “too often their corporate clients refused to actually change any of the behaviors that were responsible for creating public concern” (p.10). The great exception in this era was AT&T, whose CEO, Theodore Vail, understood that efforts to influence public opinion must be conceptualized at the highest levels of management and must be seen as a long-term policy rather than a short-term effort. In 1908, AT&T launched a “landmark campaign” to convince America that AT&T was “working endlessly to make that service something that Americans could count on anywhere and anytime” (p.10). Many observers credit the campaign with “muting public support for government antitrust efforts against AT&T during that period” (p.10).

Since that time, corporate efforts to affect public opinion have seen periods in which business influence was strong, and others where public support for [*239] regulation trumped public relations campaigns. The late 1960s and early 1970s produced a number of major regulatory programs aimed at protecting the environment, consumers, and workers. Congressional innovations were backed by vigorous executive and judicial enforcement. The regulations of this era “represented a break from the past in that a great number of the new laws were not industry-specific . . . but applied to business in general.” The response of big business as equally dramatic: “Between 1968 and 1978 the number of corporations with public-affairs offices in Washington increased from some 100 to more than 500. By 1980, more than 80 percent of the Fortune 500 companies had their own Washington offices, with more than half of them created after 1970” (p.16).

On the legal front, corporations in the 1970s were able to claim several major victories, starting with FIRST NATIONAL BANK OF BOSTON v. BELLOTTI (1978), in which the Supreme Court held, in Kerr’s words, that “speech otherwise protected by the First Amendment did not lose its protection because the source is a corporation” (p.20). Two years later, the Court, in CENTRAL HUDSON GAS & ELECTRIC CORP. v. PUBLIC SERVICE COMMISSION, established a balancing test for the protection of commercial speech. That same term, in CONSOLIDATED EDISON CO. OF NEW YORK v. PUBLIC SERVICE COMMISSION OF NEW YORK, the Court relied on BELOTTI to find a New York regulation of corporate speech more extensive than necessary to further the state’s interest in conserving energy, commenting that “the inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual” (Kerr’s summary, p.20).

Slightly more than one-fourth of Kerr’s book is devoted to an analysis of these cases. He has little to say about the Supreme Court’s corporate speech jurisprudence in the period from 1980 to 2005, except to say that in all of the cases the Court “maintained a strong aversion to any content regulation of corporate speech . . . and has never reversed any of the earlier corporate rulings” (p.21). In fairness, it must be noted, as will be elaborated below, that Kerr’s primary concern is the decade of the 1970s and the connections between the cases of that era and the Mobil ad campaign.

Beginning in 1970, Mobil Oil began a series of paid messages that ran in the lower right-hand corner of THE NEW YORK TIMES op-ed page. The thrust of that editorial-advocacy campaign was an attempt to “legitimize corporate speech as an activity fully embraced by the First Amendment, utilizing discourse that consistently framed the corporate role in democratic processes as no less than identical to that of the individual citizen” (p.1).

Kerr’s reading (painstaking) of these editorial advertisement and his analysis of them (painful) establishes that over a decade there emerged from all of the specific themes of individual editorials a “‘supertheme’ or dominant frame that sought to represent the corporate voice [*240] as a natural and vital component of the robust political and social debate that the First Amendment exists to foster.” Kerr found that seven fundamental, recurring themes constitute this dominant frame, portraying seven aspects of the modern corporation: (1) responsible citizen, (2) voice of reason, (3) societal concern, (4) civic engagement, (5) civilizing force, (6) expert, and (7) vital democratic participant.

Kerr has done superb work going through all of the editorials and gleaning from them the deeper themes. Moreover, his discussion of the political concerns of corporations in the 1970s and the politics of the period, especially with regard to regulatory policy, are lucid and informed. His summaries of the arguments of many of the Mobil ads and the connection of those arguments to the world of facts are delightfully understated but always on the mark regarding discrepancies between the two realms. However, the painstaking begins to become painful when Kerr discusses a theoretical approach (“framing theory”) to deriving these meta-themes. This reviewer will confess to a respectable understanding of both public law and politics, and far less knowledge of the communications theory that Kerr invokes. Moreover, it would not be surprising if Kerr were asked to read several issues of the APSR and reached the same conclusion that this reviewer does about his efforts—jargon. In fact, too much jargon. Arguably, Kerr’s readers will rarely encounter more alternative explanations of framing theory, each slightly more opaque than the last. Diligent resort to copious footnotes only further muddies the waters—with the refreshing exception of a citation to Michael Parenti’s INVENTING REALITY: THE POLITICS OF NEWS MEDIA in which Parenti says that “the most effective propaganda is that which relies on framing rather than on falsehood . . . telling us what to think about a story before we have had a chance to think about it for ourselves.” That is really all Kerr needed to say about framing.

In Chapter Four, Kerr turns to the relationship between the Mobil campaign and Supreme Court decisions. The discussion of the cases is as capable as would be found in many constitutional law textbooks, but not more so. And Kerr’s conclusion, stated at several times in the book, is somewhat underwhelming:

The framing of corporate-advocacy messages and what related framing may have taken place in the minds of the Supreme Court justices in the corporate-speech decisions cannot be interpreted as causally linked. What is clear, however, is that the narratives represented by Mobil’s corporate-advocacy discourse of the seventies and the legal discourse of the early corporate-speech cases are not incompatible with each other.

Had the Bard reviewed this book, he might have put it quite succinctly: Much ado about nothing.

Again, in fairness, one suspects that Kerr’s expertise lies in communications/journalism, not public law or political science. He gives an excellent narrative of the politics and economics of the times, as well as the development of corporate public [*241] relations in general and the innovative Mobil campaign in particular. One suspects a dissertation advisor suggested looking at the connection between that particular example of corporate speech and the development of the law. Kerr should have changed advisors.

In the Acknowledgments section, Kerr thanks a colleague who advanced his “understanding of the difference between journalism and scholarship” (p.ix). Kerr is a very fine journalist, as much of this book’s narrative bears out. He is also a painstaking scholar—the research he has done is exemplary. But scholarship does not necessarily mean having to shoehorn interesting facts and interpretive insights into ever more esoteric, inappropriate or incomprehensible theoretical constructions. (The reviewer mistyped the last word and it came out “constrictions.” Besides the Bard, perhaps Freud should be brought into the frame.)

REFERENCE:
Parenti, Michael. 1992. INVENTING REALITY: THE POLITICS OF NEWS MEDIA. New York: Wadsworth.

CASE REFERENCES:
CENTRAL HUDSON GAS & ELECTRIC CORP. v. PUBLIC SERVICE COMMISSION, 447 US 557 (1980).

CONSOLIDATED EDISON CO. OF NEW YORK v. PUBLIC SERVICE COMMISSION OF NEW YORK, 447 US 530 (1980).

FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 435 US 765 (1978).

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© Copyright 2006 by the author, Philip A. Dynia.

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NOWHERE TO HIDE: DEFEAT OF THE SOVEREIGN IMMUNITY DEFENSE FOR CRIMES OF GENOCIDE AND THE TRIALS OF SLOBODAN MILOSEVIC AND SADDAM HUSSEIN

by Michael J. Kelly. Peter Lang, 2005. 272pp. Hardback. $ 79.95/£46.90/ €67.00. ISBN: 0820478369. Paperback. $29.95/£17.60/€25.20. ISBN: 0820478350.

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

pp.233-237

This is a story of crime and punishment (p.xvii)

In the weeks following the resignation by Judge Rizgar Amin in Saddam Hussein’s trial and the death of Slobodan Milosevicit seems particularly prescient to be reviewing Michael Kelly’s book which lauds the brave new world in which there is an end to immunity for leaders like Hussein and Milosevic. The book is helpfully split into two sections, the first dealing with the evolution of genocide as a crime, with the second focusing on erosion of the sovereign immunity defense. The book is part of the Peter Lang Publishing’s Teaching Texts in Law and Politics series, and for this purpose it executes its task fairly well. It provides readers with a clear grasp of genocide’s history as a crime, the problems regarding its definition, various historical incidents of what might be termed genocide, the erosion of sovereignty and diminution of personal sovereign immunity. The book concludes with a fair overview of both Milosevic’s and Hussein’s trials. While it might be too early to provide an assessment of the significance of these attempted trials, this is not what Kelly seeks to achieve. Instead he focuses primarily on the erosion of the special position enjoyed by such heads of state until relatively recent times. The Foreword by Desmond Tutu reinforces Kelly’s basic premise that, after the 1948 Genocide Convention, much was lacking in enforcement, but recent developments, such as the trials mentioned and the establishment of the International Criminal Court, could diminish any sense of impunity and carry some deterrent power. To this end, he notes the Pinochet case induced nervousness on the part of Laurent Kabila about travelling to Europe (p.81). However, it might be that Kabila’s concerns lay less with the nature of the accusations against him than being put on trial. Kabila pursued diplomatic assurances, and this may remain something of an obstacle to such prosecutions (despite the 1948 Convention’s obligations). Indeed, Kelly notes that his perspective is tempered by the realpolitik of what is possible. This is particularly clear in his comments on the potential foils to the ICC’s effective operation, notably the US-driven Security Council Resolution 1422 and his estimation of the finding of immunity by the US courts in relation to President Jiang Zemin (p.84).

Kelly acknowledges the difficulties in dealing with genocide, noting that the West has acted to punish genocide three times (Nuremberg, Bosnia and Rwanda) and to stop it twice (Bosnia and Kosovo) [*234] describing such action as inconsistent, random and unpredictable (p.4). To this end, he notes that the legal wrangling over the situation in Sudan, which former U.S. Secretary of State Colin Powell characterized as genocide but which the Report of the International Commission of Inquiry on Darfur to the UN Secretary-General in January 2005 termed “crimes against humanity,” continues. Indeed one might ask why the crime of genocide seems such a tantalising holy grail for lawyers compared to the more easily prosecutable offence of crimes against humanity, which speaks for itself as a moral wrong. In fact, this seemed to be the attitude of the appeal bench in the Yugoslavian tribunal case of JELISIC (2001)). Consequently, one might wonder whether the 1948 Convention, standing as a monument to the Holocaust and the killing of six million, seems to support the speciality of that event to the exclusion of other atrocities. No doubt this was not the intention of the drafters (and the expansive concepts of “contextual significance” and “ethnic cleansing,” which Kelly handles well, have assisted), but the spectre of the Holocaust does seem to haunt the attempts to prosecute genocide which have followed. Indeed Kelly acknowledges that the camp footage evidence adduced in the Milosevic trial in relation to Bosnia was “[r]eminiscent of the prosecution’s use of sickening Nazi concentration camp footage during the Nuremberg trials” (p.101). This of course seems to reinforce the notion that Nuremberg was the trial of the Holocaust when it was clearly concerned with the crime of aggressive war. Nevertheless, it shows the overall power of the Holocaust paradigm in genocide prosecutions. Indeed in the context of Saddam Hussein’s trial, the language of concentration camps and forced deportation of the Kurds is present – Al-Majid the aptly named “Chemical Ali” is likened to Josef Mengele (p.127).

One particularly welcome chapter in Kelly’s book deals with the historical context of genocidal massacres, including those recorded in the Bible as being divinely ordained as well as the more harrowing destruction of Carthage. No doubt, if the Romans of the time were called to account at the bar today, they would deny perpetrating genocide under a 1948 model. As Kelly notes, they would claim that it was an example of a pre-emptive strike against an economically resurgent Mediterranean city with potential to be a military enemy (p.10). In so doing, their tactics would illustrate that a perverted sense of self-preservation in the face of a speculative threat, emanating from suspicion, fuelled by paranoia or avariciousness, can drive catastrophic action. Plus ça change. Of course Kelly refers to both Stalin’s comment that the death of a million is a “statistic” and Hitler’s query as to amnesia regarding the Armenian massacre (p.19). The atrocities perpetrated upon the Armenians is dealt with and has been revisited as recently as the EU accession talks in 2005 with Turkey’s steadfast refusal to acknowledge any involvement in this massacre. It is notable that the US Ambassador to Constantinople, Henry Morgenthau, described the Armenian massacre as “beastly and diabolical” and would himself become involved in the difficult question of [*235] appropriate plans for post-war Germany in 1945. Such memories could have done little to dilute Morgenthau’s (ultimately unsuccessful) plans for routing Germany as an industrial power through his “Pastoralisation” programme. Kelly also focuses on the destruction of the Kulaks in the Ukraine and the resettlement of ethnic Russians into vacated areas. Again such history resonates with the reader following the progress of the “Orange Revolution” and the very clear electoral split in the Ukraine – ethnic Ukrainians favouring the victor, Mr. Viktor Yuschenko, and ethnic Russians favouring the opposition candidate.

Of course, much of Kelly’s book focuses on the legacy of the Holocaust, and he passes through this material in helpful overview, noting that for the Nazis genocide was “documented by the state bureaucratic machinery as if it were just another normal function of government” (p.21), thus pointing the reader in the direction of another recent work in the genocide canon, namely ARCHITECTS OF ANNIHILATION by Götz Aly and Susanne Heim. The difficulties at Nuremberg in prosecuting crimes against humanity (the charge within which genocide was then subsumed) on their own without a link with other offences such as planning an illegal war, now seem to have been removed by the International Criminal Court statute. It should be noted that Kelly’s explanation of the complex nature of the ICC’s jurisdiction is very well handled. Some have regretted that this statute did not grasp the opportunity of also including political groups as potential victims of genocide, something specifically dropped in 1948 in order to gain Soviet support for the Convention. Of course, even with this concession the Convention was not enforced by an international criminal tribunal until the 1996 prosecution of Akayesu by the Rwandan tribunal. Genocide’s requirement of a “special intent” to commit the crime is a major stumbling block, and as Kelly notes, a successful prosecution of Hussein for genocide in relation to his treatment of the Kurds will depend on the prosecution’s capacity to marshal its documentary and testimonial evidence, particularly in the face of likely defence tactics seeking to argue multiple intents (p.144).

Kelly skillfully controls a huge amount of material in his chapter addressing genocide and inaction between 1950 and 1990 and the implications of Cold War political chess. Pakistan’s treatment of Bangladesh in 1971, Tutsi repression of Hutus in 1972 Rwanda, East Timor’s repression by Indonesia in 1975, and Cambodia from 1975-1979, are all covered with depressing comment. Of course, no doubt some writers will not agree with Kelly’s succinct characterisation of these conflicts, but his footnotes will provide assistance to students wishing to pursue their reading. On reading this chapter, again the reader is struck by the parallels between apparent political indifference to mass atrocity unless it served Cold War political expediency and the ad hoc application of its modern version of regime change and humanitarian intervention.

Kelly deftly handles the situations which arose in Rwanda and the former [*236] Yugoslavia, and despite the recent nature of these genocides, the short details that Kelly offers still serve to shock. In relation to Rwanda and referencing Philip Gourevitch’s (1998) excellent book in this area, he reminds us

In the spring and early summer of 1994 a program of massacres decimated the Republic of Rwanda, killing every tenth person in the population. . . . at least 800,000 people were killed in just a hundred days. . . . Rwandans were killed at nearly three times the rate as Jews were killed during the Holocaust. It was the most efficient mass killing since the atomic bombings of Hiroshima and Nagasaki. (p.41)

Furthermore, the casualness of decision-makers who were instrumental in atrocities is often astounding, and Kelly’s description of evidence in the Milosevic trial attesting to his conducting a meeting in a casino (p.107) does little to diminish a sense of Mafia-like detachment in perpetrating annihilation. Kelly also notes that among the reasons for international hesitancy to intervene in Rwanda was US trauma following the Somalian debacle. For the Americans and others, the absence of “clear entrance and exit strategies or definable goals that were short term and assurances of local support” (p.42) no doubt did for Rwanda and its people. It is a strange irony that, when such caution was abandoned in recent times, it seems to have had equally catastrophic consequences for civilians.

Kelly handles the material on Milosevic’s trial well, and the laborious process of “wading through hundreds of pages of trial transcripts” (p.xix) clearly shows. He describes the prosecution as having literally “flooded the court with documentation” (p.115). Clearly Kelly’s fatigue was felt by the diminishing number journalists covering the trial which might beg the question as to the purpose of such trials. Indeed Kelly’s description of the high-profile witnesses at points implies to the reader a desperate attempt to obscure or alleviate evidential difficulty or tedium with high-profile media-friendly figures. Obviously calling to account the personal guilt of a perpetrator such as Milosevic is the main motivation, but if national healing is also a consideration, it might be asked whether trials need to be supported by some other mechanism such as a truth and reconciliation commission. No doubt the press benches would have been packed for the verdict, but what story would that have told? Kelly does not deal to any extent with such mechanisms (except as an option which was ruled out by the US on the basis that they seem to be equated with amnesties) and their capacity to aid a sense of achieving justice or finality, and it is something which might have been further discussed, however briefly, for completeness. Kelly notes that a truth commission was never high on the list of either American or Iraqi agendas on the basis that both cultures are retributive in focus (p.136, although he notes that Iraq is an “artificial creation” (p.120) which might lead to a query as to ‘Iraqi culture’), but it is not clear that such a focus should be indulged or fuelled. He observes that in both societies something other than a trial would have been viewed as “letting Saddam off the hook” (p.136), but no empirical evidence is adduced in support [*237] of this. Indeed, given that the intelligent or determined accused will speak over the prosecutor and the court, to directly address the public, as individuals from Goering to Milosevic have all done, surely a forum less constrained by evidence and less focused on the guilt of one man, as trials are, might be considered? These justice mechanisms are mutually supportive, not exclusive and it may well be that ironically Milosevic’s death will act as a prompt for more nuanced attempts to achieve justice and reconciliation in the former Yugoslavia. Of course, this is not to say that Kelly takes the view that an Iraqi TRC would be a bad option – just that it was not culturally viable. Nevertheless, a more critical perspective on this would have been welcome.

In conclusion, Kelly’s book fits nicely with Ratner and Abrams’ book ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW : BEYOND THE NUREMBERG LEGACY which is a good resource for much of the detailed law on this area and William Schabas’ GENOCIDE IN INTERNATIONAL LAW. The latter is a veritable bible in the area but can often prove a little daunting to students who may feel better equipped to tackle its detail having considered Kelly’s more manageable tome. Kelly’s book is very readable and, despite its subject-matter, enjoyably so. It is a welcome addition to the genocide canon.

REFERENCES:
Aly, Götz, and Susanne Heim (translated by A. G. Blunden). 2003. ARCHITECTS OF ANNIHILATION: AUSCHWITZ AND THE LOGIC OF DESTRUCTION. Princeton: Princeton University Press.

Gourevitch, Philip. 1998. WE WISH TO INFORM YOU THAT TOMORROW WE WILL BE KILLED WITH OUR FAMILIES: STORIES FROM RWANDA. New York: Farrar, Straus and Giroux.
Ratner, Stephen R., and Jason S. Abrams. 2001. ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW : BEYOND THE NUREMBERG LEGACY (2nd). New York: Oxford University Press.

Schabas, William. 2000. GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES. Cambridge: Cambridge University Press.

CASE REFERENCES:
JELISIC (Case No. IT-95-10-A P 48 (Int'l Crim. Trib. Yugoslavia, Appeals Chamber, July 5, 2001))

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© Copyright 2006 by the author, Thérèse O’Donnell.

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GLOBAL SURVEILLANCE AND POLICING: BORDER, SECURITY, IDENTITY

by Elia Zureik and Mark B. Salter (eds). Devon, UK and Portland, Oregon: Willan Publishing, 2005. 272pp. Hardback. £45.00/$69.95. ISBN: 1-84392-161-8. Paper. £19.99/$34.95. ISBN: 1-84392-160-X.

Reviewed by H. Ron Davidson, Associate, Mayer, Brown, Rowe & Maw LLP. Email: hrondavidson [at] mayerbrownrowe.com. This review was not prepared on behalf of Mayer, Brown, Rowe & Maw LLP.

pp.230-232

Elia Zureik and Mark B. Salter collected eclectic essays for their book, GLOBAL SURVEILLANCE AND POLICING: BORDERS, SECURITY, IDENTITY. Some of the selected essays fulfill the book’s broad purpose of offering “both a theoretical frame and empirical cases for the study of borders and the flow of personal information which are accessible to students and scholars in sociology, political science, geography and public administration who are concerned with state power, bureaucracies, borders and border management, and homeland security in an age of terror” (p.2).

Unfortunately, other essays, in particular John Torpey’s modified speech on whether America is an empire, fall outside the scope of the stated purpose of the book. (“Imperial Embrace? Identification and Constraints on Mobility in a Hegemonic Empire,” pp.157-169).

Written before the debate over President Bush’s “domestic spying” program and removed from the issues that lawyers, myself included, face in handling complicated civil liberties issues, GLOBAL SURVEILLANCE AND POLICING, nevertheless, presents a useful—albeit fragmented—conceptual framework for analyzing civil liberties in an age of increased surveillance. In particular, Gary Marx’s essay, “Some Conceptual Issues in the Study of Borders and Surveillance” (pp.11-29), provides a functional outline by explaining the “leaky” process of dividing the internal (e.g. a cell, body, group, or country) from the external. This dividing process continuously re-defines the self in response to physical, cultural and other changes.

Hélène Pellerin’s “Borders, Migration and Economic Integration: Towards a New Political Economy of Border” expands on Marx’s analysis by describing countries as quasi-unions and quasi-cartels, regulating the flow of labor and goods across borders with different levels of restrictions (pp.51-63). These restrictions, as Nancy Lewis explains (pp.97-111), change the natural equilibrium by forcing goods, labor or other resources to amass on one side of a border, which, in turn, creates an incentive for criminal gangs to smuggle goods or labor.

Some governments intend for their borders to be non-porous. For example, India, Israel, Botswana, Saudi Arabia, and Thailand attempted to limit the flow of goods and labor by erecting fences along their borders. As John W. Donaldson notes in his chapter [*231] (pp.173-191), these fences redefined the relationship between the internal and the other. The process, however, also has an effect on society as Mark Salter explains in his piece. We are all now familiar with certain rites of passage, for example waiting in line at passport control, that governments require as a means of regulating their borders, whether airports or other lines of demarcation (pp.36-49).

But there is only so much a government can do to prevent infiltration. As Katja Franko Aas explains (pp.194-211), the border is everywhere, and erecting a fence cannot end the process of separating the internal from the external. Instead, governments resort to regulating citizens within their borders through new technologies as David Lyon (pp.66-80) and Benjamin Muller (pp.83-93) briefly describe. Countries, for example, require residents to have identification cards (p.66) and rely on biometrics where “the body becomes [a] password” (p.84).

Jonathan Finn begins the “case study” portion of the book by describing the American experience of control (pp.139-154), concluding perhaps prematurely that the system was intended to be “overtly discriminatory.” Willem Mass, in “Freedom of Movement Inside ‘Fortress Europe,’” then provides a more detailed analysis of the European experience. (pp.233-245)

The most interesting case study, albeit one that does not seem directly relevant to the other essays in the book, comes from Colin Bennett (pp.113-133), who offers a unique look at how American and European authorities track information about airline passengers.

Thus, each essay in GLOBAL SURVEILLANCE AND POLICING forms a piece of a larger puzzle about the nature of borders, security and identity. Unfortunately, the puzzle is a difficult one to assemble, making the book less accessible than it could have been had Zureik and Salter linked and organized the wide-ranging ideas in a more coherent manner.

As a mere lawyer, I profess no specialized abilities to question the methodologies of the contributing social scientists. Nevertheless, some techniques described in the book strike me as downright odd. Bennett, for example, seems to place too much reliance on responses that airline and government representatives provided him. He notes, “From my brief interviews with representatives from these organizations, I became convinced that the protection of the personal information of travelers was something that each took very seriously” (p.131). At no point does Bennett test the alternative hypothesis that these representatives are just good public relations specialists.

Lyon, meanwhile, engages in a weak guilt-by-association argument. He disagrees with a proposed British identity card program, noting “If the UK were to succeed in implementing its proposed card, it would be joining a list of nations, none of which is taken to be exemplary in its pursuits of racial and ethnic equality” (p.79). Lyon, however, fails to explain how the countries with [*232] such a program (namely, Cambodia, Egypt, Israel, Malaysia, Nigeria, Pakistan, Peru, Russia, Spain and Thailand) are otherwise similar to the United Kingdom, thus leaving the reader unsure of a causal link between the use of the identity cards and racial or ethnic discrimination.

Finally, Don Flynn, like other contributors, is too quick, in my opinion, to allege racism. Flynn notes, “It must be clear that . . . racism and restriction remain present within the new techniques of [border] management, in the form of ‘institutional racism’ and the cultural focus on the values of citizenship, which generate inevitable tensions between administrators and those whose cultural stance is considered problematic” (pp.215-230). To some, Flynn’s observations “must be clear,” but, absent any evidence of discriminatory intent (none of which is provided), I am hesitant to conclude that racism and not national security induces the current British