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.

© 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).

© 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.

© 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.

© 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.

© 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.

© 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.

© 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).

© 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))

© 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 government to act is it does.

If Zureik and Salter’s book is, as it claims to be, the first “anthology on this subject” (p.2), then it will serve as a useful first step towards gathering diverse views about the nature of borders. With the passage of time and increased focus on this issue, future anthologies will no doubt help smooth out some of the wrinkles that remain.

© Copyright 2006 by the author, H. Ron Davidson.

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THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE

by Austin Sarat and Stuart A. Scheingold (eds). Stanford, California: Stanford University Press, 2005. 504pp. Cloth. $75.00. ISBN: 0–8047–5228-1. Paper $29.95. ISBN: 0–8047–5229-X.

Reviewed by Clark D. Cunningham, College of Law, Georgia State University. Email: cdcunningham [at] gsu.edu.

pp.226-229

This collection of 14 case studies is the third book on cause lawyering that Austin Sarat and Stuart Scheingold have co-edited, following the influential publication of CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES and CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA, as well their co-authored monograph: SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. The 14 case studies are preceded by the editors’ introduction on “The Dynamics of Cause Lawyering” and followed by a short “Afterword,” written by Peter Fitzpatrick.

A more-than-sufficient reason to add this volume to one’s bookshelf is the fascinating and useful survey of work lawyers are doing in a wide variety of settings. The case studies are drawn from seven different countries—Argentina, France (2 chapters), India, Israel, South Africa, United Kingdom, and the United States (7 chapters). The practice settings are quite varied, and the causes advocated by these lawyers are likewise diverse.

As the second half of the book’s title indicates, Sarat and Scheingold analyze cause lawyering in terms of what they call the structure-agency problematic. For them “[s]tructure refers to the social institutions, patterns of behavior or ways of thinking that shape human behavior, and agency is the ability of humans to act with conscious intention.” The relationship between the two is “problematic” because structure both enables and constrains agency (pp.4-5). They assert that generally “legal profession scholars have explored neither the ways in which law and professional norms define the field within which lawyers work nor how they rework both” (p.8). Therefore, they asked each contributor to the book “to take the issue of structure-agency as at least a background framework, or jumping off point for their work,” which was “to prepare an empirical case study of cause lawyering and to explore the framework of opportunities and/or constraints in the work of the lawyers they studied.” The contributors were not asked to theorize but rather to provide data on which such theorizing subsequently might be built (pp.14-15).

Given this charge to the contributing authors, and the admirable variety of settings used for the case studies, it is not surprising that no general conclusions or unifying theories emerge. What a number of chapters do provide, though, are intriguing counterexamples to the paradigm of cause lawyering that seems to underlie the entire project. [*227] Although Sarat and Scheingold are careful to describe cause lawyering as a “heterogeneous category” (p.1), they are nonetheless tempted to some sweeping generalizations. Thus, in the first paragraph of their introduction they assert: “Cause lawyering is a distinctive, if not unique, style of legal practice . . . characterized, in the United States and elsewhere, by its difference from conventional, client centered advocacy . . . which is neither a domain for moral or political advocacy, nor a place to express a lawyer’s beliefs about the way society should be organized, disputes resolved, and values expressed.” On the following page, they state: “cause lawyering is everywhere a deviant strain within the legal profession” (p.2).

It is interesting to place these introductory statements from the editors against, for example, Laurent Willemez’ report that the French “workers’ lawyers” he interviewed “want to maintain the traditional image of French lawyering, and consider themselves its guardians.” These “cause lawyers” value their “desinteressement” which is derived from a conception of lawyering “based on a few fundamental principles: independence, liberty, disinterest in financial gains, respect for ethical rules.” They see themselves as “true lawyers” in contrast to corporate, tax or commercial law specialists, because the latter are not independent but instead motivated by money to put aside their convictions and ethical responsibilities (p.69). Willemez seems to have found “conventional and client-centered” lawyers who believe their work is essentially a way to express their social and personal values. He traces these views to a “rhetoric of generosity” invented within the French legal profession at the end of the seventeenth century in order to find a place in the social space between merchants and political power (p.69).

Another counter-example is presented by the most ethnographically detailed case study in the book: the account by Scott Barclay and Anna-Maria Marshall of how America’s first state law sanctioning the functional equivalent of gay marriage was enacted through the work of two members of one of Vermont’s most prominent law firms, neither of whom had a prior history of activism. Susan Murray and Beth Robinson won a 1999 decision from the Vermont Supreme Court holding that the Common Benefits Clause of the state constitution was violated when same-sex couples were deprived of the benefits of marriage, and they also played a key role in lobbying the state legislature to enact the Civil Union Statute in 2000 (p.172). Barclay and Marshall offer their case study “to both challenge and extend the existing definitions of cause lawyers,” which are overly dependent on studies of “rebellious lawyers.” The two Vermont lawyers are described as determinedly client-centered: their cause lawyering work arose largely as an extension of the goals of existing clients (p.190), and they “were explicit in rejecting any connection beyond their law firm and its clients” (p.196). Barclay and Marshall argue that the study of cause lawyers should expand to embrace attorneys like Murray and Robinson by emphasizing the cause over the lawyer—what they call a “struggle-centered” approach (p.198). They also suggest that private practitioners who serve paying clients [*228] may sometimes be closer and more responsive to individual needs and problems of marginalized groups than the paradigmatic “rebellious” cause lawyer (p.198).

As Patricia Woods observes in her study of legal practice in Israel, the notion that cause lawyers are “deviant” members of the legal profession has generally included an assumption that such lawyers work in opposition to the state and are “outsiders” to the circles of power. However, she describes Israel’s leading cause lawyers as part of a tight-knit “judicial community” that includes the justices of the high court (p.308). These lawyers’ proximity to power creates a symbiotic relationship with the court in which cause lawyers take advantage of signals from judges that they are willing to hear certain arguments, creating a feedback loop between the lawyers and court, contributing to the court’s political salience when it has made politically significant decisions (p.320).

The nexus between the state and cause lawyers is even tighter in Ronen Shamir’s study of litigation brought by major drug companies in South Africa in an attempt to block legislation empowering the government to import or license the production of less-expensive generic versions of patented HIV medications. In that case the cause lawyers were allied with the state against the drug companies. Indeed Shamir reports that cause lawyers tipped the balance of power to the government through their intervention in the litigation and the international lobbying campaign they orchestrated (pp.46-49). This cause lawyering was spectacularly successful: on the first day of formal hearings, the drug companies announced that they were dropping their lawsuit.

In his chapter on Argentina, Stephen Meili observes that “many cause lawyers in most authoritarian countries . . . have an interest in strengthening the rule of law and democratic state institutions (including the judiciary)” (p.396). In Israel, according to Woods, even when lawyers for the government oppose cause lawyers in litigation, there is an “ideological cause that binds these lawyers across the lines of cause lawyers and state . . . a deep commitment to the rule of law.” What is most important is a common ambitious, if not wholly extravagant concept, as to the role of law in society in which the law is entirely autonomous” (p.321). A recurring theme seems to be a “cause” centered on strengthening rather than challenging state power.

The first half of the book’s title raises expectations that it contains accounts of how cause lawyers have caused dramatic changes in the worlds where we all live. This expectation is bolstered by the first endorsement on the back cover, from Terrence Halliday: “This volume . . . will inspire a new generation of morally and politically committed lawyers to recognize their prospects for bringing justice to an [*229] unjust world.” However, the reader will discover that most of the chapters primarily study “the worlds cause lawyers make” in their own personal lives and practice settings. Among the chapters that do attempt to report on whether cause lawyers have “prospects for bringing justice to an unjust world,” many of the descriptions are rather discouraging—e.g., futile efforts to enforce human rights in UK asylum cases (Richard Maiman), the lost campaign for victims’ rights in the face of business-funded “tort reform” in the US (Michael McCann and William Haltom), and the failure of cause lawyers in Argentina to address that country’s greatest recent crisis, the government’s freeze on bank withdrawals when its currency collapsed. However, the chapters on South Africa and Vermont are indeed inspiring. Indeed one hopes that copyright permission is freely granted so that the Vermont chapter in particular is widely assigned for reading and discussion in both undergraduate and law school classrooms.

REFERENCES:
Sarat, Austin and Stuart A. Scheingold (eds). 1998. CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York: Oxford University Press.

Sarat, Austin and Stuart A. Scheingold (eds). 2001. CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA. New York: Oxford University Press.

Scheingold, Stuart A. and Austin Sarat. 2004. SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, California: Stanford University Press.

© Copyright 2006 by the author, Clark D. Cunningham.

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THE INTERNATIONAL PROTECTION OF INTERNALLY DISPLACED PERSONS

by Catherine Phuong. Cambridge: Cambridge University Press, 2005. 318pp. Hardcover. $100.00/£55.00. ISBN 0 521 82686 1.

Reviewed by Susan C. Breau, Dorset Fellow in Public International Law, British Institute of International and Comparative Law, London, United Kingdom. Email: s.c.breau [at] biicl.org

pp.222-225

One of the most serious human rights problems resulting from armed conflict is the internal displacement of the population. As Catherine Phuong states in her Introduction, internally displaced persons raise “some of the most urgent human rights and humanitarian problems of our time.” Indeed, as she discusses later in her book, the methods of internal displacement and the resulting movement of peoples also constitute threats to international peace and security. The civil war in Yugoslavia introduced an evil new term into the nomenclature of international politics – “ethnic cleansing.” Phuong’s book is an important contribution to the rather minimal literature in this field. It should be read alongside another important contribution, Chaloka Beyani’s HUMAN RIGHTS STANDARDS AND THE MOVEMENT OF PEOPLE WITHIN STATES. (There is an error in Phuong’s book in the spelling of Dr Beyani’s name.)

As with many topics in international law, internal displacement is a difficult subject for analysis as many of the standards for displacement are not part of customary international law. In fact, as Phuong points out, countries like China view situations causing internal displacement as falling within the domain of internal sovereignty and not an international concern. Phoung bases much of her analysis on the 1998 Guiding Principles on Internal Displacement, submitted to the Commission on Human Rights in 1998, and which are reproduced in full as Annex 1 of her book. Many of these principles have not been accepted by the international community either as custom or as treaty obligations. However, the choice of these standards make eminent sense as the treatment of internally displaced persons must be placed within a set of standards. However, they must be treated with some caution as these standards as a whole have not been accepted as part of customary international law.

Although this book is part of an International Law Series, a great deal of discussion is devoted to the nature of internal displacement within the context of armed conflict and the political pressures on the community of nations in dealing with mass displacement of populations. The point that states are avoiding their obligations under the 1951 Refugee Convention by preventing the crossing of borders and so choose to deal with internal displacement is an important one. Phuong states that “[p]rotection activities undertaken in favour of internally displaced persons . . . . must not amount to a pre-emptive denial of the possibility to seek asylum abroad.” This type of analysis is to be [*223] encouraged as international law takes place within a political context and there are obviously some cynical political motives in the treatment of internal displacement.

Phuong’s first task is to distinguish the internally displaced from refugees. Her thesis is that internal displacement needs to be discussed within a wider human rights movement and that the distinction between refugees and internally displaced persons should remain. In the Guiding Principles on Internal Displacement, internally displaced persons are persons “who have been forced or obliged to flee or to leave their homes or places of habitual residence . . . and who have not crossed an internationally recognized State border.” A major distinction is the lack of a requirement of a “well-founded fear of being persecuted,” in Article 1 of the 1951 Refugee Convention. Phuong rightly points out that the persecution-based standard is too restrictive and that the Refugee Convention does not include a right to asylum. However, making clear lines between these two groups is difficult, and it may well be that the whole notion of displacement should be examined in the wider human rights context without distinguishing those who successfully cross borders from the rest. However, even if one disagrees with Phoung’s conclusion, one has to commend the rigour of her analysis as she comprehensively engages the literature in this field. A particular point of reference should be the work of Guy Goodwin-Gill (1996), the leading authority on refugee law.

The second area of analysis is the current minimal legal protection of internally displaced persons. Once again Phuong’s discussion is detailed and comprehensive, including frequent reference to the 1995 Compilation and Analysis of Legal Norms which preceded the Guiding Principles. Especially important is the discussion of international humanitarian law. Displacement, or ethnic cleansing, is a tool utilized to terrorise the civilian population and not only causes loss of property and of livelihood, but death by starvation and illness. Although Phuong points to the situation in Sudan in the 1970s as the first examples of internal displacement, another major example of ethnic cleansing was the Armenian Genocide. Internal displacement in fact, is as old as armed conflict and has been a significant issue in international humanitarian law.

Phuong’s analysis represents a major contribution to the literature concerning the role played by the international defense of human rights in providing legal protection to internally displaced people. The balanced discussion focuses on the human rights aspects of the Guiding Principles as both reflective of current law and a contribution to the development of human rights law, particularly in the proposed right to restitution of property. Phuong correctly points out the weaknesses of these Principles, especially with respect to the lack of extensive reference to minorities. She also reveals the problems States have with the notion of legally binding principles. Her conclusion is carefully crafted, as she expresses reservation as [*224] to whether they will become part of customary international law.

The next part of the book examines the institutional framework of protection. This part is especially relevant to the practitioner, and Phuong displays a sophisticated knowledge of the inner workings of the United Nations system. Her recommendations for protection strategies, one would hope, will be read by the relevant international actors involved in the field. Also very important is the recommendation that the International Committee of the Red Cross take primary responsibility for protecting internally displaced persons in armed conflict. Another major contribution is in highlighting the work of Francis Deng, the UN Special Representative on Internally Displaced Persons. UN Special Rapporteurs and Representatives have thankless tasks in dealing with many of the most serious human rights situations, and it is good to see his work acknowledged. His ten years of work have made a significant difference, especially in the formulation of the guidelines upon which Phuong heavily relies.

One of the most interesting parts of the book for those with interest in the law of armed conflict is the case study of Bosnia and Herzegovina. The tragedy of ethnic cleansing, safe areas, and the massacre at Srebrenica, all reveal what can happen when there is no coherent strategy of protection for those who are internally displaced. It is also most illuminating to discover the massive efforts that have gone into re-integrating survivors of displacement after the conflict ended. It also illustrates the importance of human rights protection in efforts to resettle persons in minority areas. This also includes the right not to return to those areas if minority protection strategies are not in place.

However, it might have been useful to compare the situation in Bosnia and Herzegovina with displacement in Africa, where resources are not available to resettle displaced populations after conflict. Bosnia and Herzegovina, and later Kosovo, occurred in Europe, and thus there were sustained international and European efforts to return displaced persons. As Phuong points out, there were some four million internally displaced people in Sudan. In a recent UN report, it was estimated that 1.65 million people were displaced deliberately, primarily by the Janjaweed militia, in the conflict in Darfur. Case studies of these areas would reveal the necessity for the same coordinated effort that took place in Bosnia and Herzegovina and emphasize the reality that the human rights protection system in Africa is barely operating.

By far Phuong’s most interesting public international law discussion appears in the final chapter, entitled “Reconceiving Sovereignty and Intervention,” where she addresses humanitarian intervention as a mechanism to put an end to ethnic cleansing. She does so in the context of the international responsibility to protect, an important new concept. This responsibility is engaged when a nation is unwilling or unable to protect its own population. Although written before the adoption of this concept by the General Assembly in its recent summit outcome document, this book is one of the first to [*225] discuss sovereignty as responsibility. There are three elements to this responsibility: obligation to prevent, responsibility to react, and duty to rebuild. Phoung correctly notes the controversial aspects of the doctrine but begins a debate that should continue. The only way internal displacement can truly end as a concern for the international human rights community is by robust and timely international preventive action in emerging conflicts.

This monograph will be of great interest to human rights scholars and to those with an interest in public international law and international relations. Phuong is to be congratulated for placing the issue of internal displacement within this wider context of peace and security

REFERENCES:
Beyani, Chaloka. 2000. HUMAN RIGHTS STANDARDS AND THE MOVEMENT OF PEOPLE WITHIN STATES. Oxford: Oxford University Press.

Breau, Susan. 2005. HUMANITARIAN INTERVENTION: THE UNITED NATIONS AND COLLECTIVE RESPONSIBILITY. London: Cameron May.

Goodwin-Gill, Guy. 1996. THE REFUGEE IN INTERNATIONAL LAW, 2ND EDITION. Oxford: Oxford University Press.

International Commission of Inquiry on Darfur. 2005. REPORT OF THE INTERNATIONAL COMMISSION OF INQUIRY ON DARFUR TO THE UNITED NATIONS SECRETARY-GENERAL. Geneva: United Nations.

Copyright 2006 by the author, Susan C. Breau.

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RHETORIC AND THE RULE OF LAW: A THEORY OF LEGAL REASONING

by Neil MacCormick. Oxford and New York: Oxford University Press, 2005. 304pp. Hardback. $74.00/£40.00. ISBN: 0-19-826878-5.

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

pp.218-221

Neil MacCormick’s 1978 LEGAL REASONING AND LEGAL THEORY established him as one of the United Kingdom’s most acute legal theorists. In the subsequent quarter century, MacCormick has moved from his initial Hartian positivism and Humean value skepticism to the conclusion, elaborated here, that “the whole enterprise of explicating and expounding criteria and forms of good legal reasoning has to be in the context of fundamental values that we impute to legal order” (p.1). This move, in some ways simply a tilting from H.L.A. Hart and toward Lon Fuller, concludes (as this reviewer has advocated for close to 30 years) that “some arguments are genuinely better than others” (p.2). The book explores why, in a post-positivist/postmodern world, this can be so. Indeed, were this not so, it is hard to figure out “what exactly it is that members of the profession [i.e., legal academics] are here to do” (p.273).

MacCormick now serves as the Leverhulme Personal Research Professor and Regius Professor of Public Law and the Law of Nations at the University of Edinburgh. From this mouthful of a title alone, it should not surprise readers that this book displays all of the intellectual virtues of the Scottish Enlightenment: a clear-eyed identification of the important questions, an Olympian ability to track each sub-question and implication to its lair, and, above all, a temperamental inability to stray from the pragmatic and the practical. As a “legal academic,” MacCormick has participated in or consulted on a number of controversial British legal cases, but more important, he has taken “a vigorous part in electoral politics” all of his life (p.30). Readers will probably conclude that his commitment to political action, and particularly his service from 1999 to 2004 as a Member of the European Parliament for Scotland, enhances his appreciation for law’s work in the practical world at least as much as has his “academic” career.

Thus, MacCormick opens the book proper with the cut-to-the-chase question of our time. After quoting from Lord Nicholls’ oral opinion in the 2004 TERRORIST SUSPECTS case, which denied to the Crown the right to confine terror suspects indefinitely without charges or trial, MacCormick asks, “Can the Rule of Law be upheld in the face of contemporary dangers arising from terrorism and of concerns about public safety?” (p.1). And he concludes the book: “Erosion of the Rule of Law would not be a good way of warding off threats to civilization, but a way of yielding to them” (p.280). His analysis along the way leaves no doubt that the Rule of Law can survive and thrive in the postmodern age. [*219]

The analysis along the way covers so many topics so lucidly and systematically that the thirteen chapter titles and their subtitles alone carry much of the load of a review:
1. Institutional Theory and the Lawmaker’s Perspective
2. The Rule of Law and the Arguable Character of Law
3. On the Legal Syllogism
4. Defending Deductivism
5. Universals and Particulars
6. Judging by Consequences
7. Arguing about Interpretation
8. Using Precedents
9. Being Reasonable
10. Coherence, Principles, and Analogies
11. Legal Narratives
12. Arguing Defeasibly
13. Judging Mistakenly?

MacCormick is too wise to try to force each of these categories into some macro theory of the meaning of law, or meaning of meaning, or of anything else. Indeed he displays the Scot’s dry wit when he, following David Lodge’s delicious description, analogizes law to the multiple motives and mixed games that together make up an “academic conference” in order to show how Quixotic such a task is. (MacCormick’s quoted passage, from Lodge’s SMALL WORLD begins “The modern conference resembles the pilgrimage of medieval Christendom in that it allows the participants to indulge themselves in all the pleasures and diversions of travel while appearing to be austerely bent on self improvement” (p.218).)

Instead, MacCormick dissects each relevant concept microscopically. Thus “coherence” (Chapter 10), which is not mere internal consistency—many bizarre laws are internally consistent—entails normative and narrative components. When Italy once attempted to legislate different speed limits for different makes of cars, Italian drivers could not discern a normative basis for such a distinction and ignored the speed limits (p.191). Sherlock Holmes solves cases by insisting on fitting the facts together—that is, on narrative coherence. Conversely, we reject the Ptolemaic configuration of the solar system because it does not explain a coherent arrangement of astronomical observations (pp.225-226). His ninth chapter, “Being Reasonable,” does a particularly clean dissecting of the many different meanings of the concept of reasonableness in law, from the reasonable person of negligence law to the burden of persuading criminal guilt beyond a reasonable doubt to the reasonableness of a judicial decision (p.168).

Virtually every page rings true, from his emphasis on the importance of triadic dispute resolution (p.3) to his insistence that we know and appropriately practice the differences between reasoning as a connected set of chain links and reasoning as “mutually independent . . . supports for the conclusions, so that failure in one of them does not leave the conclusion unsupported” (p. 181), to his conclusion that multiple concurring and dissenting judicial opinions in a case, by promoting further conversations, advance the rule of law more effectively than does the clarity and finality gained by courts that speak through only one judicial voice (pp.273-276). [*220]

MacCormick, whose closest American counterpart is Kent Greenawalt (e.g., pp.163-168), rejects oratorical or poetic versions of the meaning of rhetoric. “‘Rhetoric’ has a bad name among many people because of the notorious possibility that a good speaker can win an audience round with a bad case” (p.20). He uses “rhetoric” here in its classic sense. It is “the discipline to apply in trying to find a convincing reconciliation or equilibrium between two commonplaces in apparent mutual contradiction” (p.13). Since it is the abundance of such apparent mutual contradictions that makes law necessary in the first place, MacCormick’s rhetoric is simply the ordinary language of competent law doing. MacCormick’s position implicitly reconciles Stanley Fish and Ronald Dworkin. While selecting and building on the best of Dworkin, he never mentions Fish, but both Fish and MacCormick treat rhetoric as their conceptual centerpiece. MacCormick thus arrives at the position entailed by Fish’s analysis (a position that, in this forum, I once criticized Fish for refusing to acknowledge out of sheer competitive feistiness). “Rather as a ticket entitles one to undertake a certain journey by train or plain, appropriate forms of argument supply warrants that entitle one to move from premises to conclusions” (p.19).

This book’s spot-on wisdom and good sense will have great appeal for advanced scholars in legal theory. Good pragmatist that he has become, MacCormick wisely avoids trying to adjudicate many of the purely academic debates he acknowledges along his path. But this is not a book for beginning or intermediate students, particularly those trained in American political science. This is a very U.K.-centric book, not least in its understated drolleries. (My favorite of these is his offhand reference to the common law’s “easy insouciance about the supposed gap between fact and value” (p.74).) Nearly all of his illustrative cases come from the U.K. Karl Popper and Chaim Perelman but not Richard Posner, and David Lodge and William Lucy but not Edward Levi, appear in the index. (Ronald Dworkin gets three lines in the index, but Lord Diplock gets one and a half lines there.) Of the Justices of the U.S. Supreme Court, only two, John Marshall and Holmes, make their appearance alongside dozens of Lords, ancient and modern.

Specialists who digest MacCormick here will eagerly await the next book in his planned quartet on “law, state, and practical reason.” His INSTITUTIONS OF LAW is due within the year. MacCormick is, to be colloquial, “a class act,” and those who specialize in this material, as well as those non-specialists who simply relish observing the performances of fine minds, will find this performance very rewarding.

REFERENCES:
Carter, Lief, and Thomas Burke. 2005. REASON IN LAW, 7th ed. New York: Pearson Longman.

Carter, Lief. 1994. Review of Stanley Fish, THERE’S NO SUCH THING AS FREE SPEECH, Law and Politics Book Review, Vol. 4, No. 3 pp.33-35. [*221]

CASE REFERENCE:
A AND OTHERS v. SECRETARY OF STATE FOR THE HOME DEPARTMENT [2004] UKHL 56 (16 December 2004).

© Copyright 2006 by the author, Lief H. Carter.

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DEFENDING RIGHTS IN RUSSIA: LAWYERS, THE STATE, AND LEGAL REFORM IN THE POST-SOVIET ERA

by Pamela A. Jordan. Vancouver: UBC Press, 2005. 304pp. Hardcover C$85.00. ISBN: 0774811625. Paper C$29.95. ISBN: 0774811633.

Reviewed by William E. Pomeranz, J.D., Ph.D, Attorney, Reed Smith, Washington, DC. Email: wpomeranz [at] reedsmith.com

pp.215-217

The case of imprisoned oil magnate Mikhail Khodorkovsky has refocused attention on Russia’s development as a rule of law state. Not only has the newly-updated Russian criminal code come under assault as a result of this prosecution, so too has the legal profession (the advokatura). In several instances, the Russian state has demanded that individual lawyers associated with Khodorkovsky’s defense be sanctioned for what it perceives as violations of professional ethics. Such attempts, however, have been summarily rejected by the profession’s disciplinary bodies in a display of independence inconceivable during Soviet times.

The Russian advokatura’s attempt to carve out – and defend – its professional autonomy in post-Soviet Russia is one of the important themes explored by Pamela Jordan’s DEFENDING RIGHTS IN RUSSIA: LAWYERS, THE STATE, AND LEGAL REFORM IN THE POST-SOVIET ERA. The advokatura represents a relatively small number of legal practitioners in Russia, namely those assigned to provide legal representation in court. It does not include judges, prosecutors, law professors, and in-house counsel, nor does it incorporate many jurists who simply handle commercial matters at law firms. Nevertheless, as Jordan’s research demonstrates, the advokatura’s professional evolution – both on an institutional level and through its daily legal activities – serves as an important barometer of political change and Russia’s development of civil society.

In her introductory chapter, Jordan provides a comprehensive historical overview of the Russian advokatura from the time of its creation in 1864 through the Brezhnev period. Succeeding autocratic and authoritarian regimes attempted, with varying degrees of success, to limit the profession’s corporate autonomy and independence. Jordan then focuses on the advokatura’s delicate relationship with the Russian state from 1985 to the present. She discovers that there was no grand plan to reform the legal profession under Gorbachev. Although the Soviet state was willing to grant greater corporate autonomy to the regional college of advocates – the governing body of the Soviet advokatura – it nevertheless wanted to retain overall control over admissions, discipline, and professional standards. In the early 1990s, however, advocates began to open new colleges and other forms of association that directly challenged the more established colleges of advocates. The Ministry of Justice permitted these alternative colleges for several reasons: to increase the number of advocates in the regions, raise additional tax revenue, and prevent [*216] the advokatura from becoming a powerful, unified interest group.

Jordan is particularly strong at describing the differences between these competing parallel colleges and the tension that they produced within the advokatura. The new colleges were more entrepreneurial than their established Soviet counterparts and took advantage of the business opportunities presented by perestroika. A college affiliation was still necessary, however, primarily to retain certain tax benefits. In contrast, the old colleges relied on criminal defense and continued to practice law through more traditional methods, such as working at consultation bureaus. Jordan skillfully recreates the “Soviet” atmosphere of these bureaus. They were, as she recounts, more akin to barbershops, where people would just drop in for routine legal services, rather than a western law office.

No sooner had the Russian state granted the advokatura greater autonomy than it reversed itself and attempted to reassert state supervision. Jordan provides a penetrating analysis of the critical negotiations in the late 1990s between the Russian state and the advokatura – and between the competing internal structures within the profession itself – to reform the advokatura. What ultimately emerged was a 2002 law that created a Federal Chamber of Advocates to represent the advokatura’s national interests. The 2002 law also abolished the multiple colleges of advocates and instead established a regional chamber of advocates for each of Russia’s 89 regions.

Jordan describes the interesting compromises that went into drafting this legislation and its ultimate impact on the advokatura’s professional status. For example, Jordan points out that advocates agreed to limit their work to legal assistance, as opposed to for-profit legal services, in return for assurances from the Russian state that their workplaces would not be taxed at higher rates and other perks. Alternatively, while the Russian state gained increased control over the group’s internal structures, this control was not absolute. For example, while the new law allows for the appointment of state representatives to the advokatura’s qualification commission – the body that oversees professional discipline – the advokatura retain a majority on that commission. Jordan views the 2002 law as evidence that, while retaining its overall independence, the advokatura remains internally weak and plays only a limited public role in Russia today.

Jordan’s book also focuses on the criminal and civil practices of advocates and how their daily activities influence Russia’s legal development. She finds that while some advocates embraced Yeltsin’s economic reforms, there was no mass exodus into commercial practice. This reflected the political orientation of advocates (many, after all, had been Communist Party members) as well as their conservative professional instincts. Advocates often preferred the traditional practice of working at a legal consultation bureau and conducting appointed criminal defenses rather than the uncertainty (and potential greater rewards) of independent practice. That said, some of those lawyers were [*217] prepared to take risks and acquire new tax, finance, corporate, and other legal expertise demanded by a market economy. These new opportunities, however, have not been as extensive as the advokatura might have anticipated. Jordan specifically points to failure to extend its professional monopoly to civil representation, with important consequences for the long-term economic status of its members.

Jordan also provides a thorough discussion of the advokatura’s role in criminal defense, especially in light of the procedural reforms brought by the 2001 Criminal Procedure Code. She pays particular attention to the participation of advocates in jury trials and their willingness to take an adversarial position vis-à-vis the state. Jordan further describes how the Russian advokatura has followed its pre-revolutionary ancestor and actively participated in the major political trials of the post-Soviet period (Mirzaianov, Nikitin, Khodorkovsky, and so on). In this sense, she captures the unique political role that the advocate group currently plays in Russia. Through their professional activities, individual Russian advocates serve as some of the most prominent defenders of individual and human rights in Russia today. Yet, despite this important public forum, Jordan remains pessimistic about the advokatura’s overall ability to change legal attitudes in Russia.

Jordan’s book represents a major contribution to the study of Russian legal institutions, as well as post-Soviet Russian politics. As such, the book should be of interest to Russian specialists as well as a broader audience interested in comparative law and the development of civil society. Her exemplary scholarship includes thorough consideration of available literature as well as numerous interviews with leading Russian advocates and jurists. She squarely places Russia in the civil law tradition, which should be particularly helpful to readers who are more familiar with the common law system. Her study also gets beyond Moscow and St. Petersburg and looks at how advocates outside the major legal centers have adapted to their new conditions and practice law. As Jordan herself implies, however, in light of the advokatura’s failure to establish a professional monopoly over civil representation, any future study of Russian lawyers will need to move beyond the advokatura and examine how other private jurists influence Russia’s legal practices. Nevertheless, Jordan’s comprehensive discussion of legal history and current practices will serve as mandatory reading for scholars interested in Russian politics and understanding Russia’s uneven attempts – both past and present – at legal reform.

© Copyright 2006 by the author, William E. Pomeranz.

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PROTECTING LIBERTY IN AN AGE OF TERROR

by Philip B. Heymann and Juliette N. Kayyem. Cambridge, MA: The MIT Press, 2005. 160pp. Cloth. $40.00/£25.95. ISBN: 0-262-08343-4. Paper. $20.00/£12.95. ISBN: 0-262-58257-0.

Reviewed by Torin Monahan, School of Justice and Social Inquiry, Arizona State University. Email: torin.monahan [at] asu.edu

pp.211-214

The policy concerns of our “age of terror” should shock the ethical sensibilities of most US citizens – if not the consciences of all progressively minded people. These concerns include the messy particulars of sordid exceptions: What kinds of torture techniques are permissible, when, where, and applied to whom? Under what circumstances can we assassinate enemies, even if they are not in combat zones? Under what conditions can we detain individuals, perhaps indefinitely, without due process? These are the questions engaged in this book. Many social scientists and philosophers might be intrigued by the social, political, and economic contexts that give rise to policy questions of this sort. Such questions beg a set of meta-questions in response: What does it mean that these are seen as the questions of today? What do they say about our values, the state of democracy, our system of governance, or the Enlightenment project? What do they indicate about how we perceive and valuate others? How do they serve to rationalize the US historical and ongoing complicity in terrorist practices?

Rather than take up these meta-questions, the primary goal of PROTECTING LIBERTY IN AN AGE OF TERROR is to establish clear guidelines for executive powers and their oversight. To this end, Philip B. Heymann and Juliette N. Kayyem persuasively advocate for various methods of accountability, transparency, and “accurate reassessments,” by which they mean that sunset provisions and periodic evaluations should be instituted because “[b]road new executive powers should not be allowed to survive any longer than the extraordinary danger that justifies them” (p.7). Most of the recommendations of the report seem to be reasonable, serious, and well thought out. Examples include: “Without exception, the United States shall abide by its statutory and treaty obligations that prohibit torture;” “Any U.S. person and any person within the United States who is seized or arrested outside a zone of active combat shall be detained only on criminal charges;” “Any requirement that a nonjudicial demand, such as a National Security Letter, be kept secret shall be valid for only sixty days;” and so on.

On the surface, such recommendations appear to prioritize the protection of civil liberties over the predilections of the executive branch (or the military and intelligence apparatuses). Curiously, however, the recommendations are quickly qualified in their explanatory text, providing for all kinds of exceptions. The most often utilized mechanism for qualification is to change the terms of the practices being discussed. For instance, while there should not be any exceptions to the [*212] proscription of “torture,” “highly coercive interrogation” (HCI) techniques may be completely justifiable and legal. HCI techniques could include things like “putting on smelly hoods or goggles, wall standing for long periods of time, subjection to noise, deprivation of sleep, deprivation of food and drink, deprivation of medical treatment” (pp.175-176), and so on. Because these techniques, even in combination, do not necessarily “shock the conscience” or inflict direct physical wounds, according to Heymann and Kayyem, they do not technically count as “torture.”

Similarly, the terms used within other recommendations are open to interpretation and exception. What counts as a “zone of active combat” or an “unlawful combatant?” In most cases, the answer is that the President shall decide (with some additional mechanisms of oversight to assess the legality or necessity of the decisions). These are not simply matters of semantics, however, when indefinite detention, cruel or degrading punishment, suspension of due process, or death may be the outcomes of their subjective interpretation. In my estimation, the “war on terror” is more ontological than geographical; its extralegal operations occur upon bodies within “states of exception” (Agamben 2005), which are quickly becoming the rule. So, while the devil is in the details, the details of this book will probably not challenge most existing state practices or power structures.

The non-threatening tone of the book is intentional, of course. Heymann and Kayyem explicitly call their work “nonpartisan” (p.3) and claim that “[p]olitics is irrelevant” (p.10) to determinations about the effectiveness of security policies. Certainly these statements are inaccurate. Nonetheless, through such overtures of neutrality, readers come to understand that the authors are self-consciously trying to make their recommendations palatable to policymakers in the current political climate. This climate, as I see it, is marked by jingoistic militarism, executive imperialism, and uncritical patriotism. As such, it poses severe constraints upon the kinds of recommendations that the authors can make if they want them to be seriously considered by present-day policymakers. This may be a necessary compromise given the long-term goals of the book, which are to guide security and surveillance policies for decades to come but starting today.

In some respects, the scope of this book is constrained, not only by its politics of “no politics,” but also by its format. This is a detailed policy report that has been expanded in Procrustean fashion to book length. Thus, the body of the book is under 100 pages long. Added to this are two appendix chapters written by different authors (Tom Parker and Thomas Lue, respectively) and a “summary of recommendations,” the details of which are repeated in the main body of the book. The content for this policy report was cultivated through “closed-door” conversations with notable advisors under the aegis of Harvard University’s “Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terror.” The forum giving rise to the [*213] report included seventeen US advisors, such as Robert McNamara, Michael Chertoff, and Rand Beers, along with half-a-dozen “observers” from the United Kingdom.

Heymann’s and Kayyem’s underlying argument is that abuses occur because policymakers and state agents lack clear, unambiguous guidelines:

Rules proscribing the use of torture and other cruel and inhuman treatment by the United States provide little guidance as to the legitimacy of specific interrogation techniques and when they can be used. . . In this context of uncertainty, the use of particular coercive techniques remains and has been subject to serious abuse. On the other hand, the controversy surrounding interrogation tactics in Iraq and elsewhere, and the resulting criminal charges against military personnel, has resulted in a dramatic swing of the pendulum that may discourage legitimate interrogation tactics. (p.31)


In other words, not only is abuse catalyzed by ambiguous policies, but the public and legal backlash that occurs when abuses come to light causes an overcorrection that may detrimentally impinge upon the effectiveness of state agents. Within this explanatory framework, the authors’ recommendations aim to curb abuses and simultaneously enhance the effectiveness of counterterrorism activities.

Unfortunately this logic is undermined by the fact that in the “war on terror,” clear policies and laws are violated right and left, often with impunity. As Thomas Lue writes in Appendix B, “One glaring exception [to US interrogation methods not qualifying as ‘torture’] may be the treatment of prisoners at the Abu Ghraib prison in Baghdad, where the beating and sodomizing of detainees, the unleashing of dogs, and the pouring of phosphoric liquid almost certainly qualify as acts of torture” (pp.162-163). And, although coming to public attention after this book went to press, President Bush’s authorization of National Security Agency (NSA) surveillance of US citizens is in clear violation of the Foreign Intelligence Surveillance Act (FISA). Unambiguous guidelines may be essential, but they alone cannot prevent abuses of power.

Because Heymann and Kayyem accommodate – rather than challenge – the dominant construction of terrorist threats and obligatory responses, they may not provide the critical lens that many scholars of security, surveillance, and terrorism value. That said, this is an important book. It delves into the violent and disturbing particulars of the “war on terror” and tries to provide some rational order. It recognizes that current practices of counterterrorism and interrogation are ad-hoc, particularistic, and wide open to abuse. One may feel, for instance, that any highly coercive interrogation techniques are misguided and morally wrong, but that does not change the fact that so long as they are being employed, interrogators require clear rules and effective oversight. One might also question the potential of guidelines to militate against abuse when those in the highest level of government are unapologetically breaking laws without suffering legal consequence. Still, it is much better to have laws and [*214] policies on the books, so at least there are benchmarks for judging the legality and propriety of state actors and others. PROTECTING LIBERTY IN AN AGE OF TERROR takes political discourse a big step in that direction.

REFERENCES:
Agamben, Giorgio. 2005. STATE OF EXCEPTION. Chicago: University of Chicago Press.

© Copyright 2006 by the author, Torin Monahan.

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INTERNATIONAL ENVIRONMENTAL TREATIES AND STATE BEHAVIOR: FACTORS INFLUENCING COOPERATION

by Denise K. DeGarmo. Routledge, 2005. 192pp. Hardback. $70.00.

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

pp.207-210

Judged by the admittedly unscientific method of eyeballing mass media stories, environmental issues have joined those of war and peace, human rights and international commerce in engaging the time and talents of diplomats and transnational politicians. “Global warming,” “Kyoto protocol,” “climate change” and the “deicing” of the Arctic and Antarctic now generate front page stories in mainstream newspapers and magazines. Until quite recently, many academics toiled in obscurity trying to decipher the hieroglyphics of the environment. Besides the natural scientists who worry about its bio- and geo-physical elements, social scientists and lawyers who seek to connect policies and politics with the environment have come to dominate the field. But perhaps perversely, as the issues in a hitherto highly technical area of life are rendered intelligible, and opened-up for debate by the literate mainstream, academics find new methodologies for their rarification. “Empiricism,” constructed through statistical analysis has in recent years become the darling of the social sciences in this undertaking. Through “rigorous” statistical analysis, correlations and causal relationships that might otherwise go unnoticed are established. And since this is all supposedly part of the scientific method, their policy implications are conveyed as if they were the products of the Laws of Nature.

Denise K. DeGarmo, in INTERNATIONAL ENVIRONMENTAL TREATIES AND STATE BEHAVIOR, joins the quest to establish through statistical analysis the factors that determine state accession to international environmental treaties. Focusing on the period 1972-2000, she identifies 38 relevant treaties. Using these as her raw material, she tests nine discrete hypotheses including the following:

• A state is more likely to be party to a “resource management” agreement than it is to a “pollution control” environmental treaty.
• A state is less likely to be party to an environmental treaty if the treaty imposes constraints on its military behavior.
• A state is more likely to subscribe to an international environmental treaty if a “great power” spearheads the negotiation of the treaty.
• A state is more likely to subscribe to an environmental treaty whose costs are equitably distributed.
• A state is less likely to join a treaty if it is required to transfer technology under the terms of the treaty.
• States are more likely to subscribe to environmental treaties that require the monitoring of state behavior.
• States with high income are more likely to be parties to International [*208] Environmental treaties than those with low income.
• States with free institutions are more likely than those without to be parties to international environmental treaties.
• The likelihood of a state being party to an International Environmental treaty increases with its vulnerability to the particular threat regulated under the treaty.

The statistical evidence, DeGarmo claims, confirms all but one of these hypotheses. The exception is that which posits that the likelihood of state accession depends on the constraint on military behavior imposed by the treaty. To flesh out what might account for this errant proposition, she undertakes a contextual evaluation of the five treaties that formed the universe for testing the hypothesis. One of the treaties prohibits the development or stockpiling of bacteriological, biological and toxins as weapons; another treaty prohibits the military or other hostile use of environmental modification techniques; while the other three treaties are related to issues of nuclear technology. One such treaty regulates the “physical protection” of nuclear material; a second the notification of “nuclear accidents,” and the third, “assistance in the case of a nuclear accident.” On the basis of her contextual reading of these five treaties, she adduces five grounds that explain the disjuncture between her hypothesis and the statistical evidence.

First, the treaties are only incidentally about the environment. Thus, for example, the 1972 London Convention on the stockpiling of bacteriological weapons primarily deals with military rather than environmental concerns. “In other words, this is not an international environmental treaty that requires modification of military behavior, but rather an international military treaty that has environmental implications”(p.100).
Ditto, for the three treaties on the handling of nuclear material and nuclear accidents.

Secondly, the political environment within which the treaty was negotiated may have skewed the predictive quality of the statistical evidence. Thus, that the London Bacteriological treaty was negotiated in the climate of nascent East-West détente is offered as an explanation for the negative correlation between prediction and evidence.

Thirdly, the absence from the treaties of compliance monitoring mechanisms permits dishonest behavior. Parties can sign treaties (presumably reaping whatever rewards flow from membership) without having to pay the dues of membership. Thus, DeGarmo contends that, despite being parties to the 1972 London Bacteriological Convention, China, Cuba, Ethiopia, Italy, Pakistan, and Vietnam “remain suspected of engaging in the very behavior (developing, producing, and stockpiling) prohibited by the treaty” (p.101). She goes farther (and for reasons that I take up later in this review, it is worth quoting her in some detail):

So in reality, the treaty has no real impact on the military behavior of its parties. . . . Even though Iran and Iraq (both known biological weapons states) are parties to this treaty, they used these weapons against each other during the [*209] Iran-Iraq War of the 1980s. Furthermore, Iraq used biological weapons against its own people—the Kurds—at the end of the 1980s, and the possession of these weapons by Iraq during the Gulf War (1991) created the risk of them being used during the conflict. So even though known possessors of biological weapons and technology are parties to this treaty, the treaty does not preclude the use of such weapons and technology by parties to the treaty. (p.101).


Fourth, the treaty obligations often were worded vaguely and were based on the lowest common denominator so that in reality, they imposed minimal sacrifices on their signatories. The reputational value of being a signatory may thus have outweighed any minimal changes in military behavior that compliance would have necessitated.

Finally, the emergence of a crisis often drove the negotiation and adoption of these treaties, and may have outweighed concerns over the consequences for military behavior of these purportedly “environmental” treaties.

To standard contextualists – i.e. those who subscribe to and practice empiricism by looking for supporting evidence in history, structures and anecdotal evidence – these observations would seem virtually self-evident. If they were confirmed by statistical evidence, one would welcome them. But recall that, for DeGarmo, context is a fall-back undertaking for probing the disparity between hypothesis and statistical evidence. One might thus validly ask, what factors explain the positive congruence that she finds in the remaining eight of her hypotheses? The answers might make for a rich and interesting study, but that is not what this book is about.

Treaties are at the core of international relations. In a non-hierarchical political environment, treaties remain the one assured tool by which legal claims are formalized. Because treaties frame legal rights, and because legal rights often are invoked as trumps over politics and non-legalized norms, there is a good deal of interest in understanding how states get to decide those norms, standards and/or practices that ought to be legitimated through treaty. Given the increasing importance of the environment in international relations and politics, understanding factors that shape how and why states choose to embed the adoption of some environmental norms, but not others, is clearly a project of immense importance for academics and practitioners alike. To the extent that statistical evidence meaningfully can shed light on the project, it is a tool that should be exploited. Doing so, however, requires care and nuance. These features are lacking in DeGarmo’s INTERNATIONAL ENVIRONMENTAL TREATIES AND STATE BEHAVIOR.

Take, as an illustration, the use of 38 treaties entered into over a period of 28 years by varying combinations of more than 150 states on subjects as diverse as the prevention of desertification, the exploitation of ocean resources, and the notification of nuclear accidents, as raw material for testing nine discrete hypotheses that posit correlations between a state’s willingness to enter into treaties on a broad range of factors, [*210] such as the subject matter of the treaty, the internal institutions of the state, and the significance of state vulnerability to an environmental threat. Even under surefooted hands, questions will arise as to methodology and the accuracy of the results. Skepticism however likely will be moderated if the reader is given clear and cogent explanations regarding choice of variables. Such explanations are the exception in this text. How were the nine hypotheses derived, and what others were considered and rejected? One searches in vain for reflections on such issues of methodology. The closest consists of amorphous references to various schools of international relations thought. The hypotheses are somehow derived from critiques of “realism,” “neorealism,” “institutionalism,” and “social constructivism,” but how these schools of thought generate and frame the boundaries of the hypotheses are not clearly articulated. Moreover, DeGarmo does not address the rich literature in the legal field on why states sign treaties, nor does any of her hypothesis seem to take into account the significance, if any, of legal culture to state behavior.

Looseness in conveying ideas is not confined to methodological issues. Elementary information – discursive and descriptive -- is casually misrepresented. To take an example already hinted at, in discussing Iraq’s compliance with the London treaty on Biological Weapons, DeGarmo apparently confuses “biological” with “chemical” weapons. Similarly, while discussing the United States position on technology transfers in the environmental field, she writes: “The U.S. argued that biotechnology research and patents on gene stocks involved intellectual property rights which were owned by private companies and controlled by other international regimes, most notably the GATT” (p.102). It is difficult to imagine the United States arguing that intellectual property rights are “controlled” by the GATT. To be sure, the U.S. might have argue that the GATT/WTO regime has primary (or even exclusive) jurisdiction over issues raised with regard to regulation of international intellectual property rights, but asserting the existence of jurisdiction hardly is tantamount to conceding control. Attention to such distinctions frequently is missing elsewhere in the book, especially in those chapters (2 and 3) that present and evaluate schools of intellectual thought.

In short, scholars interested in a rigorous study – statistical or otherwise – of factors that influence the accession by states to international treaties, or their compliance to such treaties, will find in this book less than they rightfully should expect.

© Copyright 2006 by the author, Maxwell O. Chibundu.

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IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW

by Antony Anghie. Cambridge: Cambridge University Press, 2004. 378pp. Cloth. £60.00/$110.00. ISBN: 0-521-82892-9.

Reviewed by Denise DeGarmo, Department of Political Science, Southern Illinois University. Email: ddegarm [at] siue.edu

pp.204-206

Approaches to international law have traditionally been framed in terms of the European experience and rooted in a Westphalian understanding of sovereignty. Thus international law is viewed as the basis of order in a system of sovereign equals. According to Antony Anghie, the chief problem with this perspective is that it marginalizes the experiences of the non-European world and excludes “others” from full membership in the global community of states. Anghie’s book, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW, attempts to redress the absence of the “other” in the literature by providing an alternative lens that examines international law in light of the colonial experience.

Anghie begins his examination by focusing on problems associated with the traditional Western understanding of sovereignty and international law. He argues that, while the Westphalian definition of sovereignty may provide for equality among Western states, it does not extend the same status to the non-Western world. Sovereignty in this context acts as a reinforcing agent of inequality between the developed and developing world. Inequality, in turn, provides a justification for the interference, exploitation or conquest of the “other” by the West in order to fulfill a multitude of missions—e.g., exploitation of resources for industrialization or civilizing the uncivilized. Instead of viewing international law as providing order among sovereign equals, the non-Western world perceives it to be a tool used by the West to embed structural inequality into the international system. If this assertion is true, then the creation of sovereignty and international law may very well be heavily influenced by the colonial period as Anghie asserts.

Two broad areas of inquiry inform Anghie’s work. First, he explores the connection between development of international law and codification of structural inequality. Specifically, he is interested in how inequality, perpetuated through international law, has led to systematic exploitation of the “other” through a violent “civilizing mission” while embedding notions of racial discrimination and cultural subjugation into international practice. Anghie believes that even today, international law not only promotes interference by the West, but also continues to exclude the non-West from full partnership in the international community. The other area of inquiry involves the impact of traditional interpretations of sovereignty and international law on the understanding of sovereignty in the non-Western world.

Anghie traces the creation and development of international law [*205] from16th century Vitorian jurisprudence to the current “War on Terror.” These historical cases allow Anghie to test his assertion that imperialism is the foundation upon which traditional notions of sovereignty and international law rest. Francisco de Vitoria’s jurisprudence provides the launching point for the analyses. With law shifting from divine ordinance to the natural law of man, one might believe equality would encompass all beings inhabiting the global landscape. According to Anghie, this was not the case. Since natural law is informed by the norms and values of Europe, it is inapplicable to peoples whose norms and values differ. Natural law by definition thus creates a framework which prefers the West to the exclusion of all others. Therefore, the West and non-West are not treated as equals, nor is the “other” afforded the legal protection of sovereignty. The absence of “sovereign equality” creates space for the justification of colonization and conquest of the “other.” This is one example of many that Anghie uses to illustrate his belief that imperial underpinnings of the West influenced the character of international law.

Anghie’s discussion of the West’s “civilizing mission” is particularly insightful. As Europeans moved away from Vitoria’s jurisprudence and began creating law in their own image, additional attributes were proscribed for the non-Western world, further differentiating the two groups. In addition to inequality, characterizations of “uncivilized” and/or racially different were used to create barriers to sovereign equality. It is these last two characteristics that provide the foundation for the West’s “civilizing mission” or as Anghie asserts, justification for colonial domination. According to Anghie, the need to engage in the “civilizing” of the “other” promotes the idea that non-European sovereignty is insufficient. Only through Westernization can the “other” achieve full partnership with the international community.

The “civilizing mission” did not end with decolonization according to Anghie. Instead, new characterizations of the “other” emerged to maintain the status quo of the international system. In addition to being unequal, uncivilized and racially different, the decolonized world was deemed “underdeveloped” as a result of existing political, economic and social structures that refuted Western values and norms of behavior. The West viewed newly decolonized states as in desperate need of guidance in creating new economies and governments. Democratization and liberalism triumphed over competing visions of human rights, economic and political reforms, leaving the “other” as victims of continued structural inequality. For Anghie, sovereignty takes on two meanings. There is one form of sovereignty for the western world in which sovereign equals interact on the international stage. There is another form of sovereignty applicable to the non-Western world, a world characterized as uncivilized, different and in need of Westernizing.

Anghie’s final case study involves the “War on Terror.” He argues that, although the war on terror invokes new language and military postures, it is [*206] really nothing more than an attempt by the West, specifically the United States, to maintain the status quo and further differentiate the West from the rest. The US global vision, according to Anghie, is quasi-imperial and embraces the old Western mindset of domination of the “other.” Through the reintroduction of language and symbols used in previous incarnations of international law, the US can maintain control over sovereign states through military imperialism. Anghie’s fear is that military domination will be institutionalized in international law, impeding progress toward creating a more equitable international system.

Anghie makes an important contribution to the field of international law. First, he offers a comprehensive look at the history of international legal developments from their inception through the current war on terror. The historical case studies provide more than merely evidence to support Anghie’s assertion. They present a detailed and comprehensive history of international law more generally. Anghie also offers a competing interpretation of those factors influencing the historical direction of international law, including the “other” in these developments. Finally, in an unexpected twist, Anghie incorporates “power” into his discussion of international law. Whereas most scholars treat international law and power as mutually exclusive, Anghie positions power at the center of his consideration. Exercising power through international law established and embedded practices favorable to those who have dominated the system, which, in turn, has produced structures that have prevented acquisition of sovereignty equality by non-Western entities.

© Copyright 2006 by the author, Denise DeGarmo.

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HUMAN RIGHTS LAW IN PERSPECTIVE: HUMAN RIGHTS, CULTURE AND THE RULE OF LAW

by Jessica Almqvist. Oxford and Portland, Oregon: Hart Publishing, 2005. 256pp. Hardcover. £40.00/$80.00. ISBN: 1-84113-506-2.

Reviewed by Kasturi Moodaliyar, School of Law, University of Witwatersrand. Moodaliyark [at] law.wits.ac.za

pp.202-203

HUMAN RIGHTS, CULTURE AND THE RULE OF LAW, an adaptation of a doctoral thesis by Jessica Almqvist, is welcomingly refreshing as it is not often that we come across a book that integrates the rights of culture and human rights.

The structural layout in the first few chapters is difficult to read, almost as though Almqvist is trying to impress her examiners. However, as one reads further, it does become an easier read and the chapters flow more gently. The book takes on the assumption that “culture is closely linked to ideas about community,” and it reveals that individuals possess culture that influences the ability “to enjoy the rights and freedoms recognised in international human rights law.”

Chapter 2 considers the notion that there is some recognition of culture in international human rights law. Almqvist provides legislative examples of this but criticizes the fact that international human rights institutions that impact the culture on human rights remain largely unexplored.

Chapter 3 speaks of the inadequacy of human rights in providing a framework that addresses issues relating to culture. Almqvist suggests that this is in all likelihood a mechanism of avoidance of advancing the understanding of the complexities and significance of culture from the human rights perspective.

Chapter 4 looks at the framework that is placed on the cultural dimension, like skills, norms and ideological outlook, and the ability to enjoy individual freedom at the heart of human rights research. Chapter 5 spends more time viewing the individual’s cultural equipment – skills, tools and know-how – and how they affect enjoyment of human rights.

Chapter 6 addresses the concept of adiaphora to explain how cultural norms, such as dress, diet, or prayer, affect the moralities of law. Chapter 7 deals with the conflicts on how to approach matters of adiaphora. Almqvist suggests that in order to resolve these conflicts, attention should be directed to the need for authority and democratic participation. Chapter 8 discusses ways legislative authorities may respond to problems of culture. Chapters 9 and 10 call for the international human rights authorities to place culture issues on their agenda. Almqvist emphasises the seriousness of the right to cultural enjoyment and makes a number of recommendations as to how this issue can be addressed.

Almqvist offers an interesting analysis of the integration of human rights and culture. However, she fails to explore the concept of the “rule of law,” which [*203] appears in the title of her book, as completely as she does with the other two concepts. Overall, the research methodologies are appropriate, and the examples used to explain concepts serve the book well. It is very clear from the inception that this book is purely an academic text.

This is an important book for our present times, where many people are trying to encourage human rights authorities to recognise the basic need to enjoy cultural rights and freedoms.

© Copyright 2006 by the author, Kasturi Moodaliyar.

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THURMAN ARNOLD: A BIOGRAPHY

by Spencer Weber Waller. New York: New York University Press. 2005. 288pp. Cloth. $40.00. ISBN: 0-8147-9392-4.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile [at] mtsu.edu.

pp.198-201

Thurman Arnold (1891-1969) was one of 100 lawyers that I included in a recent book entitled GREAT AMERICAN LAWYERS, so Arnold is hardly unknown, but his is no longer a household name. Accordingly, this biography by Spencer Weber Waller, a Professor of Law at Loyola University Chicago, is a welcome one that builds on Arnold’s own fairly voluminous writings, on previous secondary works, and on personal interviews that Waller conducted with Arnold’s former associates. Although Arnold spent most of his life in the East, Waller believes that Arnold’s connection to Laramie, Wyoming, where he was born, raised, and spent part of his early carrier, and where his wife retired after his death, strongly influenced him.

After a brief stint at Wabash College in Indiana, Arnold attended Princeton and then went to Harvard Law School. Partly because of his western background, he was an outsider in both institutions. Rather than returning home to Wyoming to join his father’s firm, Arnold began practicing law in Chicago. He was mobilized for artillery service in France in World War I, and then returned to Laramie. Laramie elected him mayor, and he helped found the College of Law at the University of Wyoming. His family has continued to maintain a close association with the university, which now houses his papers. Recommended by a former classmate at Harvard, the West Virginia University College of Law appointed him as dean in 1927, during which time he met Charles Clark, soon to be Dean of the Yale Law School, who later lured him there.

Arnold worked for a time on empirical studies of the law but found the results to be fairly meager and eventually gravitated to the legal realism for which Yale was then known. He published numerous articles and reviews but became best known for two iconoclastic books, THE SYMBOLS OF GOVERNMENT and THE FOLKLORE OF CAPITALISM. The former primarily relied on insights from amateur psychology and semiotics, while the latter embraced a pragmatic role for government in the economy. Arnold disdained theory, including hallowed concepts like democracy and property rights. Arnold and a colleague applied the same irreverent attitude to a casebook on trials and appeals.

Even while at Yale, Arnold accepted a number of positions within the Roosevelt Administration, but Yale eventually announced his “resignation” when he accepted a full-time position as head of the Antitrust Division of the Department of Justice in 1938. Ironically, Arnold had previously ridiculed anti-trust enforcement as a way of substituting appearances for realities. Moreover, the Administration was divided into those who thought the key [*199] to conquering the Great Depression was industrial management and planning, like that which the New Deal had incorporated into the codes of competition that industries had drawn up under the National Industrial Recovery Act, and those who thought that trusts were the problem, creating what Arnold believed to be major “bottlenecks” within the economy.

During Arnold’s tenure, the Department grew exponentially both in number of employees and budget, and it engaged in its most extensive litigation. His division pursued trusts in the automobile, dairy, oil, and aluminum industries, the medical profession, the railroads, and even the New York wooden ice-cream stick industry; Arnold often personally argued the cases before the U.S. Supreme Court. More controversial, especially among fellow New Dealers, was his belief that anti-trust should also apply to union activities. Arnold achieved a high public profile, giving frequent speeches, and even delivering a nationwide address over the Mutual Broadcasting Network when he left his post.

Although press releases portrayed Arnold’s appointment to the U.S. Circuit Court of Appeals for the District of Columbia as a “promotion,” many within the administration were glad to see him go. Thurman’s tenure on the D.C. Circuit, which was not, as Waller points out, as prestigious a post as it is today, was relatively short-lived. Arnold did not write any anti-trust decisions, but did establish a few landmarks, including ESQUIRE v. WALKER (1945), overturning an attempt by the post office to impede the circulation of ESQUIRE magazine. A man of action, Arnold eventually found himself bored with his work on the court, and he returned to private practice.

He first established a brief partnership with Arne Wiprud that dissolved after a failed attempt to obtain the Pullman Corporation for a group of investors. He then teamed with Abe Fortas, whom he had first met at Yale, and Paul Porter, with whom he had worked for a time in government, in a firm that still bears the Arnold and Porter names. Each partner had different personalities and complimentary strengths. Waller portrays Arnold’s forte as that of seeing the big picture. Acknowledged throughout his life as a “genius,” Arnold often advanced ideas that initially looked ridiculous but that eventually provided the solution to complicated legal issues.

With the possible exception of his work in anti-trust, Arnold’s most important and heralded work was that which he and his firm performed, mostly pro bono, on behalf on individuals accused under the loyalty program that the Truman Administration initiated during the Cold War. Although political scientists might exercise their own skepticism about the formula for “billable hours” that it used to make the computation, the firm estimated that it gave more than $2.5 million of services to defending Owen Lattimore, an Asian expert at Johns Hopkins University. The firm somewhat limited its work by refusing to accept cases of known communists. Although this enhanced its success and left more difficult cases to others, its primary motive appears to [*200] have been a desire not to lose control of such cases to the Communist Party.

Arnold brought to his firm a hefty retainer from Coca Cola, one of the few large companies that he thought competed fairly. In part because of the other partners, in time, the firm accepted business from many corporations that Arnold had previously prosecuted. Arnold himself became one of the top advocates before the U.S. Supreme Court. Waller says that Arnold excelled in his ability to write a “simple declarative sentence” (p.159). A personal friend and former associate of a number of the justices, Arnold approached his arguments more as conversation than as a declamation and with less reverence for external forms than most of his colleagues. Those without such personal connections would undoubtedly find it difficult to replicate such techniques.

One of Arnold’s most famous victories was his success in springing the poet Ezra Pound, who had collaborated with the fascists in Germany, from a mental hospital. Arnold recognized that government attorneys, with no apparent intention of initiating a prosecution against a man they believed to be insane, were unwilling to dismiss the charge of treason against Pound unless specifically asked them to do so.

Waller provides some insight into Arnold’s personal life. In addition to highlighting Arnold’s humor, Waller describes his ties to the West, recounts his drunken escapades with William O. Douglas when both were on the Yale faculty, describes his relationship with his wife, the former Frances Longam, to whom he was married for more than a half-century, recounts the family’s associations with socialites, Cissy Patterson and Evalyn Walsh McLean, and says that Arnold took a more active role as a grandparent than as a parent. The book has eight pages of black and white photos that picture Arnold and his family, but includes no pictures of the family’s Summerhill home in Arlington or the Lafayette House in Alexandria, Virginia, where they later moved.

Arnold had difficulty writing his autobiography, which he ultimately published under the title FAIR FIGHTS AND FOUL. President Lyndon Johnson, who, as vice-president, had helped celebrate Arnold’s seventieth birthday at the White House, called Fortas, who had long been a personal friend, from the firm to the U.S. Supreme Court in 1965. Although Arnold worked to get him back after Fortas resigned in partial disgrace from the Court, Arnold’s power at the firm had by then so weakened that he did not succeed in this endeavor. In his latter years, Porter resigned from the American Civil Liberties Union, on whose board he had long served, because he thought it was promoting civil disobedience, and he supported the War in Vietnam at a time when most of his liberal associates had abandoned the cause as largely hopeless. Arnold suffered a number of heart attacks in his later years before dying in his sleep in 1969.

Arnold’s firm remains a powerhouse in Washington, D.C. Waller observes that, like Arnold, it embodies the [*201] contradictions among “a commitment to liberal values, pro bono work, and the representation of both the underdog and the business elite” (201).

One strength of Waller’s biography is his ability to convey Thurman’s irreverent humor through letters that he wrote, pranks that he played, and comments by associates. Waller presents Arnold as a brilliant but somewhat disorganized and disheveled professor. This reviewer would have liked to learn more about Arnold, the litigator. One passage in the book does a good job of conveying what made him such a good advocate before the U.S. Supreme Court, and Waller tells a bit about Arnold’s work defending individuals before congressional committees, but he does not say much about his techniques before other courts.

The broad range of Arnold’s activities testifies to his genius. In addition to colleagues, he influenced or mentored such legal luminaries as Edward Levi, Patricia Wald, Nicholas Katzenbach, Charles Reich, Gerald Stern, and others. Waller has succeeded in capturing the essence of a lawyer, often described as a blend of Voltaire and a cowboy, who made such important contributions to twentieth century jurisprudence.

REFERENCES:
Arnold, Thurman. 1965. FAIR FIGHTS AND FOUL. New York: Harcourt, Brace and World.

Arnold, Thurman. 1937. THE FOLKLORE OF CAPITALISM. New Haven: Yale University Press.

Arnold, Thurman. 1935. THE SYMBOLS OF GOVERNMENT. New Haven: Yale University Press.

Vile, John R. (ed). 2001. GREAT AMERICAN LAWYERS: AN ENCYCLOPEDIA, 2 vols. Santa Barbara: ABC-CLIO.

CASE REFERENCE:
ESQUIRE, INC. v. WALKER, 80 U.S. App. D.C. 145 (1945).

© Copyright 2006 by the author, John Vile.

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THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT

by Yoram Dinstein. Cambridge, UK: Cambridge University Press, 2004. 296pp. Hardback. £55.00/$95.00. ISBN: 0521834368. Paperback. £24.99/$42.99. ISBN 9780521542272

Reviewed by Mathieu Deflem, Department of Sociology, University of South Carolina.
Email: deflem [at] sc.edu

pp.195-197

This book by Yoran Dinstein is a companion volume to the author’s textbook, WAR, AGGRESSION AND SELF-DEFENCE (2005), which is now in its fourth edition. The latter book provides a guide on legal issues related to warfare from an historical and contemporary perspective, reviewing the conditions of international law under which warfare between states can be legal, which exceptions might apply, and how the notions of self-defense and collective security can be invoked to justify war. The present volume deals with the laws that govern various aspects of international armed conflict, as a branch of international law. As with all international law, the laws of armed conflict are based on treaties and customary international law. These laws are designed to regulate armed conflicts between states in an attempt to reconcile the need for humanitarian considerations, on the one hand, and military necessities, on the other.

With this scope in mind, Dinstein’s book reviews a number of important aspects of war from the viewpoint of international law. The reader ought to be aware of what this book seeks to do and what it cannot do. There is no discussion of a social-scientific nature, nor are there normative arguments for or against any aspect of war. Dinstein’s goals are strictly to present the international legal framework regulating international armed conflict. The book, in this sense, has a primarily technical quality.

The themes that Dinstein discusses are of great importance to the legality of warfare, especially in the light of the 20th-century history of world warfare and the post-9/11 global turbulence surrounding the war-like fight against international terrorism and the military interventions in Afghanistan and Iraq. In a first substantive chapter, Dinstein considers the difference between lawful and unlawful combatants and, relatedly, entitlements to prisoner of war status. These matters are of obvious contemporary relevance given the difficulties surrounding the status of combatants in Afghanistan and Iraq, members of terrorist groups, and related forms of armed struggle, such as in the Palestinian-Israeli case. Dinstein next discusses the weapons that are legally prohibited in war, such as those that cannot differentiate between civilian and military targets. Other prohibitions pertain to weapons that involve unnecessary suffering and restrictions on the use of certain arms, such as biological weapons and weapons of mass destruction.

Also discussed is the legal status of the identification of military objectives, and regulations aimed to protect civilians [*196] and civilian objects from military attack. The now rather infamous notion of ‘collateral damage’ fits into this discussion. Other civilian objects enjoy special status from the viewpoint of international law, such as cultural properties, places of worship, and medical facilities. Environmental concerns are also part of the laws on international armed conflict, the relevance of which was shown, for instance, when oil wells were set on fire during the Gulf War. The final sections of Dinstein’s book deal with important matters of war crimes, command responsibilities, and defense strategies.

Though the aims of Dinstein’s book are largely technical within the legal context of warfare, the legal codex that that he presents is far from trivial, not only in the light of the inherent tragedy of war, but specifically in the contemporary context of the proliferation of the means, strategies and discussions on various aspects of war, such as the distinction between lawful and unlawful combatants, the use of civilians as human shields, the often invoked notion of collateral damage, and the likewise ubiquitous “weapons of mass destruction.”

This book is designed by the author primarily for international lawyers and military officers. It will also be useful, more broadly, for teachers and students specialized in war and its legality, especially in conjunction with WAR, AGGRESSION AND SELF-DEFENCE or a similar book. In the teaching of a social-scientific analysis of law and legal phenomena, however, this book will be of limited value as no analyses are provided besides a broad legal overview. Knowledge of such regulations, of course, is necessary to the social-science scholar on war, but it would be far from sufficient to rely on this book to analyze the relevant societal contexts of war and international law.

On a final note I wish to point out that the technical nature of this book may make it appear as somewhat legalistic and, consequently, amoral, yet that would not do justice to Dinstein’s ambitions and the scope of his intellectual activities. Presently Professor Emeritus of International Law at Tel Aviv University, Dinstein formerly held the position of Professor of Human Rights at Tel Aviv and also occupied professorships in international law at New York University, the University of Toronto, the Max Planck Institute in Heidelberg, Germany, and the U.S. Naval War College in Newport, Rhode Island. THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT was in fact conceived by the author during two semesters of teaching at the Naval War College in 1999 and 2002. Very well established in the field of international law, Dinstein remarkably crosses the worlds of academic law, human rights policy, and military training. Traversing into the world of politics, moreover, Dinstein began his career in Israel’s Foreign Service and also served as Consul of Israel in New York. The founding editor of the ISRAEL YEARBOOK ON HUMAN RIGHTS, Dinstein also chaired the Israeli branch of Amnesty International. In the light of such a varied and multi-dimensional career, it [*197] becomes more understandable that a technical book on the legalities of international warfare can be useful, not in order to replace, but instead to supplement analyses of war from the viewpoint of social science and our moral commitments to the human condition.

REFERENCE:
Dinstein, Yoran. 2005. WAR, AGGRESSION AND SELF-DEFENCE. Cambridge: Cambridge University Press.

© Copyright 2006 by the author, Mathieu Deflem.

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WHAT ROE v. WADE SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S MOST CONTROVERSIAL DECISION

by Jack M. Balkin (ed). New York: NYU Press, 2005. 304pp. CLOTH. $29.95. ISBN: 0-8147-9918-3.

By Matthew E. Wetstein, Political Science, Delta College. Email: mwetstein [at] deltacollege.edu.

pp.189-194

Reading Jack Balkin’s (Knight Professor of Constitutional Law at Yale Law School) edited book, WHAT ROE v. WADE SHOULD HAVE SAID, conjures up thoughts in the reader, like “darn, I wish I had thought of that.” The basic thrust of the book is to pose the following question to some top law school experts: given a chance to write the opinion in ROE v. WADE on the basis of 30 years of experience, but only relying on what was at hand for the Supreme Court justices at that time, how would you have written an opinion in the case? The answers come in the form of eleven separate opinions (Balkin has stacked his hypothetical court in ways that Franklin Roosevelt could not). The result is a fascinating collection of “opinions” authored by some first-rate scholars, and a 7-4 vote that tracks well with the actual holding in ROE (p.xi). The result also features a set of self-revelatory essays at the end of the book, highlighting the continuing political dilemma that abortion presents, even for the best legal minds.

My review is focused on three themes: 1) the opinions delivered by the participants, 2) the tone and quality of the arguments, and 3) the epistemological question that highlights the book’s attractiveness to many but its weakness to some. As an academic exercise in imaginative constitutional jurisprudence, the book succeeds, and it might be useful for those interested in teaching competing theories of constitutional interpretation or a unique kind of moot court experience. In general, the tone and quality of argumentation is solid, although I have some reservations about one opinion in particular. It is the third element of the exercise that raises fundamental questions about the entire enterprise undertaken here. Let me put the question bluntly: can a collection of law school professors really engage in the construction of an opinion that does a better job than Justice Blackmun’s, especially in light of the fact that it is physically impossible to replicate the judicial and political context?

The range of mock opinions presented in this book take several different tacks. The majority and several concurring opinions attempt to do a better job of explicitly arguing the constitutional grounds for abortion, either through the liberty interest found in the 14th Amendment’s Due Process Clause, or via the Equal Protection Clause. The majority opinion advanced by “Chief Justice” Balkin maintains that the Texas and Georgia abortion laws in question violate a woman’s liberty and equality interests. Surprisingly, however, the liberty interest is not grounded in the Court’s prior precedents dealing with [*190] marriage, procreation, and contraception. As Balkin (40-41) puts it: “If a woman becomes pregnant and the state prevents her from obtaining an abortion, it forces her, against her will, to become the parent of a child, an event that will have consequences not only during the course of her pregnancy but for the rest of her life.” In terms of equality, Balkin maintains that the paternalistic nature of abortion laws perpetuates the subordination of women as a class of people, abrogating the spirit of equal protection found in the Constitution (pp.44-45). The beauty of “Chief Justice” Balkin’s majority opinion comes in its decision to reject the temptation to draw a bright line between when the state’s compelling interest in protecting the fetus becomes operative and when it infringes the liberty and equality interests of the woman. Thus, Balkin refuses to do what Justice Blackmun did in presenting the trimester framework. Instead, he writes what he thinks ROE should have said:

A line must be drawn at some point to enable the state to express its sincere and legitimate interest in the human potential of the fetus. But the line must not be drawn so early as to effectively extinguish the constitutional right to choose. There is no magical formula for demarcating such a line with mathematical precision. The balance between the competing factors is essentially legislative, and must be drawn by legislatures themselves (p.53).


According to Balkin, what ROE should have done is to identify a constitutional right to abortion grounded more clearly in liberty and equality interests, but allow legislatures to set a statutory time limit beyond which abortion could be prohibited. According to Balkin, this time period should be long enough for a woman to contemplate the “difficult moral issues” presented by abortion, consult with friends, family, and medical practitioners, and should allow enough time for travel to an abortion provider (pp.53-54). Some would say this is an improvement on Blackmun’s trimester approach, yet envelopes much of what Blackmun was trying to do in ROE. It is forceful in stating the right to an abortion, yet turns the issue back very clearly to legislatures with guidance. It also squares with (now) Justice Ginsburg’s (1992) criticism that ROE prematurely halted the political reforms that were taking place in state legislatures.

Balkin’s opinion is followed by seven concurring and three dissenting opinions. My review will not do justice to these varied opinions, but a quick overview of the arguments highlights the diversity of approaches. For instance, Reva Siegel takes a feminist view and pushes the equality argument to the fore, contending that abortion laws grounded on stereotypically unequal notions of women use the criminal law power to “coerce and intimidate women into performing the work of motherhood” (p.80). Jeb Rubenfeld makes a similar point, maintaining that abortion prohibitions are unconstitutional deprivations of liberty because they essentially force women to choose between practicing abstinence/contraception or the unwanted labor of motherhood (pp.111-112). Mark Tushnet offers a concurring opinion built on the framework of [*191] Justice Douglass’ ROE concurrence. His vision of the abortion right flows from the notion of liberty inherent in the Fourteenth Amendment. Thus, there are fundamental privacy rights in play when one consults a physician and makes a decision on the basis of medical advice (p.90). Anita Allen writes to establish her concern about the Balkin opinion’s effort to establish a time frame for when abortion can be regulated and prohibited by the state. Her opinion places heavy emphasis on the “fundamental nature of the right to terminate a pregnancy” and suggests that access to medically safe abortions “cannot be cut off absolutely after a legislated ‘reasonable time’” (p.93). Intentionally foreshadowing later judicial rulings, Allen suggests that a “judicial by-pass” should be available to women after any state-imposed timeline for abortions (p.107).

Several authors pen opinions that view the Court’s role as limited in offering a constitutional remedy. The tone of these opinions emphasizes the “over-reach” of the majority. Consider Robin West’s concurrence, which suggests that Congress should use its Fourteenth Amendment powers (Section 5) to “respond to states that engage in practices or laws that are unconstitutional under Section 1” (p.121). For her, addressing the inequality of women as citizens requires “substantial congressional, not judicial activity” (p.144). West’s position squares with the “minimalist” stance taken by Cass Sunstein. He rejects the “overbroad” opinion established by the Balkin Court, instead calling for a narrow holding that declares the state abortion laws unconstitutional because of their overbreadth and their inability to pass the narrowly tailored tests he would employ (p.149). His opinion would have allowed for more legislative consideration of laws that might be narrowly tailored to advance the interests of protecting future life.

Three opinions remain to be considered. Akhil Amar’s split opinion (concurring in part/dissenting in part) presents one of the more imaginative, and in my view, unsatisfying theses. In brief, he would strike down the 1850s Texas abortion law because it was passed before women obtained the right to have equal say in politics, because it continues to impose “serious and gender-specific burdens on women,” and because it fosters a situation that limits their ability to participate as full political equals in society (p.166). What is unappealing about his analysis is the simple fact that the effect of the law is what matters, not necessarily how or by whom it was created. Thus, all of his effort to analyze when and how the law came into effect, and similarly, when and how the Fourteenth Amendment came into effect, rings hollow in view of his ultimate conclusion regarding the Texas abortion law. According to Amar, the Georgia abortion statute, enacted in 1968, is quite a different matter, and he would have simply vacated the lower court ruling and allowed the case to percolate in the lower state courts. This is not a bad decision in terms of judicial restraint, but it evades the merits of the case.

The true dissenting opinions in this book come from Jeffrey Rosen, Teresa Stanton Collett, and Michael Stokes Paulsen. The Rosen and Paulsen [*192] position is one that aligns with John Hart Ely’s (1973) attack on ROE. The position is a familiar one for those attuned to abortion debates: ROE was wrongly decided because the right to privacy exists nowhere in the text of the constitution, and because the traditions of the country and precedents of the Court do not allow for the announcement of a sweeping right to privacy that encompasses the right to terminate a pregnancy (p.171). For these justices, textual reading of the constitution matters, as does the pattern of law-making by the states, and Rosen rightly notes that the weight of the abortion law in the 50 states sided with Texas and Georgia, not against them (see p.175). Collett writes to refute the argument that somehow a woman’s liberty interest depends upon the right to an abortion. Her reading of the significant pre-ROE precedents emphasizes the “communal understanding” of the rights to procreation, motherhood, marriage, and family, not the individualistic notions championed by the more liberal justices noted above (p.190). But Paulsen’s opinion unleashes fireworks near the close of the collected opinions. Paulsen, quite simply, is the Antonin Scalia of this court. Paulsen criticizes the opinions of the majority as representing “the worst of American constitutional legal thinking . . . [consisting] of poor sophistries, masking raw assertions of power” (p.197), and as “the most awful human atrocity inflicted by this Court to date” (p.213). To join the Balkin Court majority is to “commit an act of great evil” reminiscent of the Holocaust (see pp.212-213). The strident criticism does not stop there, for Paulsen writes in his dissent (p.213):

Jack Balkin is a man of violence.
Anita Allen is a woman of violence.
Jed Rubenfeld is a man of violence . . .
Akhil Amar is a coward and a collaborator.


You get the picture. The tone here is not one of collegiality but rather moral indignation to the point of burned bridges, reminiscent of 21st century political television, not one of the typical judicial chambers. Given the otherwise reasoned tenor of many of the contributions to this collection, Paulsen’s opinion comes off as unappealingly hypercritical and distasteful in its polemic (but the religious right will revel in it).

Given the theme of this work, it is not unexpected that Justice Blackmun’s trimester framework faces some tough body blows. At different turns the opinion is referred to as a “running joke among legal academics” (Paulsen, p.241); a “famously artless opinion” (Rosen, p.241); a decision that went too far too fast (Sunstein, p.248); and “too cursory” in its efforts to defend the abortion right and too complicated to foster widespread public support and understanding (Balkin, pp.22-23). And yet, my own opinion falls somewhere closer to the more positive one put forward by Mark Tushnet (pp.250-254). In light of the materials presented to the Court at that time, the existing precedents, the arguments pitched to the justices, and Justice Blackmun’s background in medical law, I find Justice Blackmun’s compromise opinion a satisfactory one (let me confess to being a fan of Justice Blackmun’s Midwestern temperament, sense of [*193] humor, and political acumen). To reformulate Tushnet’s position, one would have to place herself in the context and milieu of that early 1970s Court to understand that what seems “questionable today seemed quite natural to them” (p.254). In other words, if you take the “constitutional concerns as the justices saw them, the structure of the opinions was either entirely sensible or even inevitable” (p.254). Moreover, it is important to recognize that Blackmun’s reference to the trimester framework was introduced in light of “present medical knowledge” (ROE v. WADE). One might conclude that ROE v. WADE said what it said because of the times and the nature of the Court and the justice assigned to author the opinion. And, we must acknowledge it as the political and constitutional compromise it represented, warts and all to some of its detractors.

This defense of Justice Blackmun brings me to my main concerns about the entire enterprise of re-writing ROE v. WADE after its 30th anniversary. The book starts from the proposition that legal experts can do a different (some might say better) job at writing an opinion in ROE, based on the knowledge and materials the justices had at their disposal, and also based on the accumulated experience of 30 years. There is a central epistemological problem here that concerns just what precisely each one of the book’s “justices” knows about the abortion issue from their own experiences, and whether they can transport themselves back into the past and truly understand what it was like to be Justice Blackmun (or Douglass for that matter). The problem can be put this way: relative to the justices of the ROE Court, the authors have the epistemological advantage of 30 years of accumulated wisdom and experience, but they suffer from the epistemological deficit of not knowing what was really happening within the Court.

Mark Tushnet raises this question in his closing essay (pp.250-254), perhaps because he was a law clerk at the Court when ROE was argued in 1973, and in a way, so does Robin West. The central problem here is that it is difficult for modern legal scholars, so exposed to the post-hoc arguments pro and con, not to bring their own baggage to the case, even if they were to try to limit themselves to the material available to the justices at the time (Robin West makes a similar point on pp.257-258). Moreover, there is the practical problem of equating an academic, legal exercise that produces “new” and “better” opinions in a forum quite different from the institutional setting of the Supreme Court. We know that the Court of that time was a collegial body with constant interaction, give and take, and occasional bargaining around opinion language. Certainly that was the case with ROE and its now (in)famous trimester framework. Moreover, we know that Justice Blackmun struggled mightily with the ROE opinion, both as a constitutional ruling, and as a political exercise in building a meaningful consensus. The point here is that the members of the Balkin Court did not have to endure such considerations, so the true dynamics of being a justice are left to the sidelines, and the opinions [*194] presented in the book must be read in light of that epistemological handicap.

Some will find this book attractive for what it attempts to accomplish. As a repository for high quality argumentation about what a pivotal abortion ruling could have looked like, the book succeeds. Yet others will find it to be no more than an artful legal academic exercise, at turns imaginative and rewarding, but at other turns depressing in its tone and artificial nature. I choose to see it as a combination of both. And despite the aim of the book, I also choose to maintain my respect for Justice Blackmun as a political and constitutional statesman of the highest order. In worse hands, the state of abortion politics could have been much worse off.

REFERENCES:
John Hart Ely. 1973. “The Wages of Crying Wolf: A Comment on ROE v. WADE.” 82 YALE LAW JOURNAL 920-949.

Ruth Bader Ginsburg. 1992. “Speaking in a Judicial Voice.” 67 NEW YORK UNIVERSITY LAW REVIEW 1185-1209.

CASE REFERENCE:
ROE v. WADE 410 U.S. 113

© Copyright 2006 by the author, Matthew E. Wetstein.

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