LEARNED IN THE LAW AND POLITICS: THE OFFICE OF THE SOLICITOR GENERAL

by Peter N. Ubertaccio, III. New York: LFB Scholarly Publishing, 2005. 224pp. Cloth $65.00. ISBN: 1-59332-071-X.

Reviewed by Rebecca Mae Salokar, Department of Political Science, Florida International University. Salokar [at] fiu.edu

pp.299-302

LEARNED IN THE LAW AND POLITICS is a recent contribution to the existing scholarship on the Office of the Solicitor General (OSG), the legal office that represents the executive branch before the Supreme Court. As his centerpiece, author Peter Ubertaccio adopts the “law and/or politics” theme that has coursed this literature since Robert Scigliano’s explication of the multi-faceted relationship between the Supreme Court and the presidency (1971). Ubertaccio’s direction is different in that he presents an historical overview of both the office’s development and the personal politics of the men who have been appointed to serve as solicitors general. He relies largely on past scholarship and some archival research. Ubertaccio’s conclusions, however, reflect the general consensus of the scholarly community that the OSG is both unique and powerful in its position astride two branches of government.

Ubertaccio posits several themes in his opening pages. One is that the OSG “is the preeminent institutional link between presidents and law”(p.x); few of us in the field would disagree. Second, he suggests that the office “has emerged as a primary tool of executive prerogative” (p.2). Boldly, Ubertaccio also states that the work of the OSG is “the most effective means for presidents to link their reform aspirations and the activities of the federal government to enduring constitutional and political values” in the modern era (p.6). To support his argument, he examines the institutional development and work of the OSG over four eras—from its inception in 1870 to the end of the nineteenth century, the progressive and New Deal eras, and the Reagan administration.

Chapter One provides an overview of the text and a cursory description of the legislative history and contemporary work of the OSG. Apparent in this chapter is Ubertaccio’s keen interest in the politics of presidential power and leadership, the root of his research inquiry. One of his discussion threads examines the literature on presidential power and political change, pointing out the limits of reconstruction and realignment theory while suggesting that the OSG’s importance is at the “cross-section of politics and law and the ability of presidents to exercise prerogative regarding the law” (p.6). The chapter concludes with an argument that while the classical liberal thinkers and the Founders envisioned an executive that was “somewhat above the law” (p.12), modern executive power in the United States has become constrained by the rule of law and the contemporary notion that no one is above the law.

The next two chapters examine the early history of the Office of the Attorney [*300] General, and the need for a Department of Justice (DOJ) and for a litigator in the form of the solicitor general, and the development of that office from 1870 into the 1920s. Chapter Two is primarily devoted to the tenures of the first two solicitors, Benjamin Bristow and Samuel Phillips, and is replete with engaging historical anecdotes designed to point out the administrative difficulties of the early years, the standard of appointing distinguished lawyers who also had close ties to their political parties, and their early advocacy roles. In Chapter Three, Ubertaccio describes the impact of progressive era reforms on the organization and professionalization of the DOJ under Presidents Theodore Roosevelt and William H. Taft. The tenure of Solicitor General John Davis during the Wilson administration rounds out the chapter.

Chapters Four and Five focus on the New Deal era and its impact on the OSG into the 1950s. Tracing the New Deal cases that went before the Justices and weaving in stories of the five solicitors who served during the Roosevelt administration, Ubertaccio notes the development of a closer relationship between the OSG and the President, the organizational “learning” that occurs during this time, and a public advocacy role for the solicitor general that extended beyond the confines of the courtroom. The author also argues that New Deal liberalism and the concomitant rise in legal professionalism and judicial activism meant that the executive branch lost some of its ability “to interpret the law and Constitution” and saw an increase in its duty to “enforce the law and severely affected the ability of future presidents to articulate a (sic) lead political regime change in the United States” (p.161).

The final historical chapter highlights the Reagan administration and begins with a rehash of an old issue, the debate over whether the OSG is (or ought to be) political or apolitical in its legal work. Ubertaccio then goes on to describe the background politics of the BAKKE and BOB JONES cases, two instances in which the Carter and Reagan administrations attempted to manage directly the arguments made by the OSG. The thrust of the chapter suggests that the Reagan solicitors were not more political than their predecessors. Rather, due to external criticism and a more constrained view of the president’s ability to interpret the law, Rex Lee and Charles Fried were less successful in defending “presidential prerogative regarding the law and Constitution” than their New Deal counterparts (p.191). The concluding chapter returns to the theme of the OSG as a primary tool of executive prerogative and summarizes the previous chapters.

LEARNED IN THE LAW AND POLITICS is an ambitious effort that ultimately falls short in persuading the reader that the OSG is the linchpin for executive-led regime change. While the OSG has been effective in seeking policy preferences and protecting or expanding executive power, to suggest that it is “the most effective” ignores the success of legislative strategies in a time of unified government, reforms in periods of crisis management, or the impact of membership changes on the U.S. Supreme Court. Ubertaccio’s [*301] discussion of OSG activities’ during the New Deal era certainly portrays an office that was fully engaged in efforts to transform the law, but this narrow view ignores other avenues of policy work (like legislative initiatives that went unchallenged) designed to implement New Deal reforms. But by his own admission, the experiences of the Reagan administration point out the constraints that current solicitors general face.

Given the wealth of scholarly research on the OSG since journalist Lincoln Caplan published his critique of the Reagan administration in 1987, it would seem that the debate over whether the solicitor general is or ought to be a political actor should have been put to rest. Regardless of party, administrations use this politically appointed lawyer to advance or protect preferred policy positions and executive power. Yet, Ubertaccio attempts to revive the law or politics debate here and does so by selectively focusing on particular administrations while glossing over others. Opening the book with a critique of the Reagan administration by John Dean (of the Nixon administration) does little to support the merits of a debate that is now rooted largely in the rhetoric of partisans and former office-holders.

The value of LEARNED IN THE LAW AND POLITICS is found in the rich historical anecdotes that the author has gathered and the primary sources he uses to tell his story. Ubertaccio also brings the broad scholarly literature on the Department of Justice into his narrative and ties it into the administrative development of the OSG. The chapters on the early OSG are a special contribution to existing research on the office and the bibliography provides a good resource for researchers.

Regrettably, I must note the poor editorial quality of this work. First, the book suffers from the dilemma of being organized temporally, a style that is difficult for even the most experienced writer. On the editorial side, it would have benefited from a serious culling of material to sharpen the thematic focus. Most frustrating are the number of grammatical and typographical errors that appear throughout and prove to be significant distractions to the reader. Whether this was the result of a rush to publication or of accepting a dissertation with minimal editorial review, the lack of careful presentation detracts from the author’s efforts. In addition, the index is thin, and I detected errors even where there were entries to the topic or name I sought.

REFERENCES:
Caplan, Lincoln. 1987. THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW. New York: Alfred A. Knopf.

Scigliano, Robert. 1971. THE SUPREME COURT AND THE PRESIDENCY. Cambridge: Harvard University Press.

CASE REFERENCES:
BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983). [*302]

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

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© Copyright 2006 by the author, Rebecca Mae Salokar

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LAWYERS AND REGULATION: THE POLITICS OF THE ADMINISTRATIVE PROCESS

by Patrick Schmidt. New York, NY: Cambridge University Press, 2005. 316pp. Hardback. £50.00/$90.00. ISBN: 0-521-84465-7.

Reviewed by James C. Foster, Oregon State University—Cascades. Email: James.foster [at] osucascades.edu

pp.294-298

Patrick Schmidt’s book arrives at a time when congressional politics stands darkly in the shadow of Jack Abramoff, the DeLay-Santorum-Norquist K Street Project, and a slew of criminal indictments and pleas. Once again, lobbying and lobbyists appear less to be practicing free speech than peddling influence. In this environment, Schmidt proposes to analyze lawyers’ role in “the contemporary regulatory soup,” acknowledging at the outset “a pattern of concern regarding the influence and power of private interests” over administrative governance (pp.2, 3). His book is part of a lineage of policy analysis including Pressman’s and Wildavsky’s IMPLEMENTATION and Mazmanian’s IMPLEMENTATION AND PUBLIC POLICY. By addressing more fundamental questions pertaining to private power and democracy (albeit procedural democracy), Schmidt’s intellectual pedigree includes David E. Lilienthal, Emmette S. Redford, Grant McConnell, Theodore J. Lowi, and Marc Galanter.

Schmidt focuses on what lawyers who practice administrative law do. He sets out to explain what happens “in the gap between the text of a statute and the behavior of an individual regulated entity, [where] every step of the regulatory process can become a site for interpretation and contestation of what the law means” (p.3). He employs a case-study methodology, scrutinizing separate stages of the US Occupational Safety and Health Administration (OSHA) regulatory process as “arenas for legal representation” transforming “general principles into specific commands” (p.28). To this point, the reader might assume that the book under review is yet another garden variety treatment of the well-worn truism that, when it comes to the workings of the administrative state, discretion reigns. It is that—with a twist. The twist is that Schmidt proposes to shed light on the ways that lawyers’ “strategies of representation” (p.28) shape administrative discretion and what such strategies entail.

He begins by assaying “hypotheses about the role of lawyers” as they “reinterpret, redefine, recreate, and reconstitute the meaning of [regulatory] law in its particulars” (p.8). The brief section, “Lawyers in The Machinery of Law,” in his introductory chapter, provides useful reading. In the compass of ten pages (pp.7-17), Schmidt offers a mini-graduate refresher course on scholarly perspectives toward roles lawyers play in the regulatory process. Taking Stewart Macaulay’s influential 1993 analysis of business approaches to the regulatory state as his point of departure, Schmidt criticizes “the dichotomous assumptions present in research on lawyers” (p.13)—[*295] assumptions, it should be noted, that are rooted in a deep-seated American ambivalence about lawyers generally (compare, for instance, the films “Young Mr. Lincoln” and “Devil’s Advocate”). Schmidt characterizes the two poles of this dichotomy as being informed by the cliché about whether the glass is half empty or half full: “If regulations are born of the aspiration to the public good, then lawyers are a dangerous political force. If regulatory policy and law is fraught with risks, then lawyers help shepherd the law to efficient outcomes” (p.8).

While acknowledging that what he terms the “lawyers as friction/lawyers as grease” dichotomy partially captures social truths, Schmidt seeks to build a more complex “model of legal practice” (p.14) within the “public/private networks” (p.15) that constitute the administrative state. He frames his model on a foundation indebted to the work of John Heinz, Edward Laumann, Robert Nelson, and Robert Salisbury. Along the way, he nods in the direction of the path-breaking trilogy on trial court workgroups by James Eisenstein in collaboration with various combinations of Herbert Jacob, Roy B. Flemming, or Peter F. Nardulli. His goal is to explain “the microdynamics of lawyering in its distinctive legal setting . . . what do the many thousands of Washington lawyers operating in policy subspecialities do” (p.16)?

In the end, Schmidt finds that what regulatory lawyers do is function as “interest representatives” (pp.211-217). Now there is a nugget of original insight(!). If Schmidt’s finding regarding what lawyers do is not very novel, his analysis of how lawyers represent interests is informative. (As is often the case with competent mainstream social science, Schmidt’s contribution amounts to sophisticated understanding of prevailing common sense.) Reduced to its essentials, Schmidt argues that lawyers represent interests law-fully: “attorneys make clear to us how the dynamic and fluid world of contemporary regulatory politics has some forms of stability at its core . . . [helping] clients find order in law and law-like norms (pp.217-218). His account of the microdynamics of regulatory lawyering situates the law-full character of regulatory practice in the context of three sets of factors that shape particular roles lawyers interacting with OSHA play at any given time. He offers a “partial typology of influences in OSHA regulatory interactions” (Table 7.1, p.213), explaining briefly these three categories of influences—individual, situational, environmental. Acting together and discretely, these influences create a “highly situational and tangled web of factors in regulatory encounters . . . produc[ing] a wide range of roles that can be filled by intermediaries” (p.214).

While suggesting that a dozen consequent roles might be identified, Schmidt specifies five: Advocate, Shepherd, Educator, Diplomat, and Power-broker. At OSHA:
“[t]he administrative process for governing occupational safety and health . . . unquestionably puts particular emphasis on adversarial, quasi-judicial proceedings; nevertheless, a range of roles assists the process of translating [*296] interests into the logic of the system” (p. 217).

“Translating interests into the logic of the system”—this phrase nicely captures both the contribution of, and the limit to, Schmidt’s study.

Schmidt’s case study advances our knowledge of the ways that attorneys interacting with regulatory agencies, as he puts it, are “making politics, making law.” He sheds light on the sorts of behavior that occur in the so-called “shadow of the law” (p.219; see Coase, Mnookin, Cooter, Rossi, and Stevenson, but cf. Ellickson), revealing and explaining the strategies lawyers employ in shaping regulatory practice. Regulatory attorneys, one might say following Schmidt, are partisan repeat players. Operating out of particularistic motivational sets, and seeking to advance specific policy goals, regulatory lawyers also are committed to the process itself. Again, one might say that regulatory lawyers simultaneously value winning and keeping the game going; seeking at the same time to close legal options and keep law open-textured: “In repeated regulatory encounters, as iterations of a political game, each result affects in some way the calculations of parties who will meet again . . . [r]egulation through law produces a politics that is directed at multiple time-frames” (p.220). The term Schmidt uses to convey the seemingly paradoxical character of regulatory lawyering is “reflexivity” (p.220). He invokes a metaphor, shards of a shattered stained glass window, to describe the multifarious possibilities infused throughout the administrative process by self-referential strategies employed by regulatory attorneys—“shards of a shattered stained glass window [in which] it may be difficult to find order . . . but . . . may still impress” (p. 222). He explains:

Law is an enactment of existing relationships and structures, which can evolve or endure in its setting. . . .[L]aw structures and engenders attitudes; law embodies cultural and technological assumptions undergirding decisionmaking; law creates perceptions by actors about who possess legitimate authority, thus helping to structure informal relationships; and further, the absence of formal law in some contexts can create space for the emergence of its replacements (pp.221-222).

For Schmidt, at base then, lawyering shapes the logic of the system.

This vantage point is all well and good—as far as it goes. But Schmidt’s analysis bleaches the substantive coloration out of the politics of the administrative process. Making regulatory politics may well amount to making law. Still, regulatory policies, understood in terms of concrete behavioral outcomes by specific actors, advance or retard material interests. It is both sort of curious and sort of ironic that Schmidt marginalizes the outcomes of conflict in administrative politics. It is curious because, from the outset of his study, Schmidt clearly understands that regulatory lawyers “are . . . representatives of private interests” (p.2) and that “[a] regulatory bar is built by the needs of corporate clients” (p.52). It is ironic because Schmidt chose OSHA as the focus of his case study, and: [*297]

[g]iven its origins and underpinnings, OSHA’s early history was marked by an unbroken chain of conflicts between the highly partisan advocates of labor unions and business interests. The legislative history of the OSH Act evinces firm resistance by business to a safety and health agency, while the labor union coalition pressing for its adoption acquiesced in a number of important compromises to secure the Act’s passage. . . . OSHA policy persevere[s] . . . through a stasis of “conflict as usual” (p.22).

Schmidt’s “apolitical” take on regulatory politics is only “sort of” curious and “sort of” ironic because he focuses on process. By formulating his study in terms of how lawyers read their procedural interests into the system’s logic, he short-changes analysis of which material interests shape regulatory logic.

Thus, Schmidt’s work has fairly constrained horizons. (It reads like it is a revised dissertation, with its narrow gauge and its limited scope.) This is disappointing because early on, it promises to be more. On the third page of his book Schmidt clearly points the reader toward a central tension (perhaps the central tension) of American government: the relationship between the public realm and the privately-ordered economy: “Individuals who represent public and private interests are positioned to shape the distribution of wealth and welfare, and through their actions, to give rise to wider structures of political advantage” (p.3). He speaks of how “a fundamental tension” accompanies administrative politics “every step of the way . . . between choices of interest and values, on the one hand, and the desire for process on the other” (p.3). In LAWYERS AND REGULATION Schmidt concentrates on the latter pole of this tension. Perhaps in a complementary sequel he will turn his attention to the former.

REFERENCES:
Coase Ronald H. 1960. “The Problem of Social Cost.” 3 JOURNAL OF LAW AND ECONOMICS 1-44.

Cooter, Robert, Stephen Marks and Robert Mnookin. 1982. “Bargaining in the Shadow
of the Law: A Testable Model of Strategic Behavior.” 11 JOURNAL OF LEGAL STUDIES 225-251.

Eisensten, James, and Herbert Jacob. 1977. FELONY JUSTICE: AN ORGANIZATIOAL ANALYSIS OF CRIMINAL COURTS. Boston, MA: Little, Brown and Co.

Eisensten, James, Roy B. Flemming, and Peter F. Nardulli. 1988. THE CONTOURS OF JUSTICE: COMMUNITIES AND THEIR COURTS. Boston, MA: Little, Brown and Co.

Ellickson, Robert. 2005. ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES. Cambridge, MA: Harvard University Press.

Flemming, Roy B., Peter F. Nardulli and Eisensten, James. 1992. THE CRAFT OF JUSTICE: POLITICS AND WORK IN CRIMINAL COURT COMMUNITIES. Philadelphia, PA: University of Pennsylvania Press. [*298]

Ford, John. 1939. “Young Mr. Lincoln.” The Criterion Collection.

Hackford, Taylor. 1997. “Devil’s Advocate.” Warner Home Video.

Heinz, John P., Edward O. Laumann, Robert L. Nelson, and Robert H. Salisbury. 1993. THE HOLLOW CORE: PRIVATE INTERESTS IN NATIONAL POLICY MAKING. Cambridge, MA: Harvard University Press.

Macaulay, Stewart. 1993. “Business Adaptation to Regulation: What Do We Know and What Do We Need to Know?” 15 LAW AND POLICY 259-270.

Mazmanian, Daniel A., and Paul A. Sabatiere. 1989. IMPLEMENTATION AND PUBLIC POLICY. Lanham, MD: University Press of America.

Mnookin, Robert N. and Lewsis Kornhauser. 1979. “Bargaining in the Shadow of the Law: The Case of Divorce.” 88 YALE LAW JOURNAL 950-977.

Nelson, Robert L., and John P. Heinz, with Edward O. Laumann and Robert H. Salisbury. 1988. “Lawyers and the Structure of Influence in Washington.” 22 LAW AND SOCIETY REVIEW 237-300.

Pressman, Jeffery L. and Aaron Wildavsky. 1984. IMPLEMENTATION (3rd expd. Ed.). Berkeley, CA: University of California Press.

Rossi, Jim. 2001. “Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement.” 51 DUKE LAW JOURNAL 1015-1058.

Stevenson, Betsey and Justin Wolfers. 2003. “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress.” Stanford Law and Economics Olin Working Paper No. 273; Stanford Law School, Public Law Working Paper No. 73.

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© Copyright 2006 by the author, James C. Foster.

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ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION

by Ralph A. Rossum. Lawrence: University Press of Kansas, 2006. 312 pp. Cloth $34.95. ISBN: 0-7006-1447-8.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: Richard.Brisbin [at] mail.wvu.edu

pp.289-293

Often a touchstone of criticism, Justice Antonin Scalia of the Supreme Court emerges largely unscathed from criticism in Ralph Rossum’s admittedly sympathetic study. Organized around the exposition of the theme of “text and tradition” articulated in Scalia’s opinions and off-the-bench commentary, Rossum’s paean presents Scalia as perhaps the most significant of contemporary justices. According to Rossum, Scalia has engaged the Court and the broader legal community in the formulation of responses to his textualism and distrust of judicial discretion.

After a brief introduction to Scalia’s career that offers nary a whiff of his sarcasm or his complicated and often testy relations with the other justices, Rossum quickly moves to outline the core of the justice’s jurisprudence. As defined in Chapter Two of the book, the central thesis of this jurisprudence is an approach that Rossum, following language in Scalia’s writings, calls “text and tradition.” Constitutional scholars familiar with Scalia’s opinions, his off-the-bench articles and speeches, and the voluminous commentary about him will readily recognize the textualist crux of this interpretive methodology. Rooted in the legal process scholarship of the 1950s, the justice’s textualism commands the judge to read the Constitution and law as narrowly and specifically as possible. The judge is not to treat language as “aspirational” or as the basis for broad declarations of rights or legislative purposes. Thus, as Rossum notes, Scalia rejects the use of information that might shed light on the objectives of a text, such as legislative history, and scorns the use of resources extraneous to American constitutionalism, such as foreign and international law.

Much of the remainder of the book is an explication of Scalia’s textualism. Chapter Three examines the justice’s separation of powers opinions. His effort to draw rigid lines to demarcate the powers of the branches is recounted. Although Rossum thoroughly exposes Scalia’s opposition to a commingling of powers, little is said about how the justice’s reading tends to diminish judicial and legislative powers and advantage the executive. Chapter Four addresses federalism, including the important negative commerce clause and state sovereign immunity opinions of the justice. In one of his few criticisms of the justice, Rossum notes that Scalia departs from textualism in the state sovereign immunity cases. Yet, he then points out that the slippage from textual practice might be a consequence of Scalia’s effort to place boundaries on Congress’s powers (pp. 125-36). [*290]

Chapter Five contains a rapid-fire review of Scalia’s textual approach to “substantive rights” protections of the First Amendment, Takings Clause, and Equal Protection Clause cases. Rossum outlines what he calls Scalia’s “no privileges, no penalties” approach to the Free Exercise Clause by an examination that focuses on the justice’s opinions in EMPLOYMENT DIVISION v. SMITH (1990) and LOCKE v. DAVEY (2004). In brief, his argument is that the Court should neither preference a religious act that violates the criminal law or imposes penalties on religious education. Turning to free speech and press and focusing the discussion on a relatively small number of opinions, Rossum notes that Scalia finds the text of the First Amendment usually restricts these rights to oral and written speech, not expressive conduct, and especially would protect only political speech through the use of a compelling interest test. In the brief treatment of Scalia’s Takings Clause cases (just over three pages), Rossum asserts that Scalia is convinced the Clause applies to regulatory as well as physical takings of space. There is little exploration of why and how Scalia has arrived at this reading of text. Finally, Rossum’s discussion of Scalia’s reading of the text of the Equal Protection Clause is also very brief. Most of the discussion is an explication of Scalia’s textual interpretations that would overturn publicly imposed affirmative action programs, require the admission of women to all-male public colleges (UNITED STATES v. VIRGINIA, 1996), and require strict scrutiny of claims of discrimination by gays and lesbians (LAWRENCE v. KANSAS, 2003). Interestingly, Rossum’s treatment of these cases tends to diminish the significance of Scalia’s quite hostile language and scorn for some of the groups claiming rights in these cases. He especially neglects to comment on Scalia’s hyperbolic dicta that imply the LAWRENCE decision might lead to nefarious results such as same-sex marriage.

The textualism of Scalia’s interpretation of procedural rights is the subject of Chapter Six. The chapter opens with a summary of the justice’s insistence that due process includes only the rights present at the adoption of the Fifth and Fourteenth Amendments (pp.166-72). Rossum argues this standard causes Scalia to reject all sorts of substantive rights, including rights to abortion, to homosexual sexual activity, to abortion, and to proportionate remedies in civil cases. Readers interested in these issues will find that Rossum does little to elaborate the arguments or comment on the dicta in Scalia’s opinions in these cases, however. Indeed, the book as a whole is quite brief in recounting Scalia’s almost visceral disgust with substantive rights in general and abortion in particular. The remainder of the chapter recounts Scalia’s textual interpretation of the rights found in Amendments Four, Five, Six, and Eight. As Rossum indicates, these opinions find Scalia siding both for and against criminal defendants – even though his overall voting pattern is generally pro-prosecution and pro-death penalty.

Quite correctly Rossum emphasizes the importance of textualist interpretive methodology by Scalia. Yet, Scalia [*291] supplements “text” with “tradition.” As Rossum notes, tradition is a kind of jurisprudential backstop when the text is ambiguous (p.27). But, what is “tradition”? Very much as in Scalia’s opinions and writings, Rossum’s definition of tradition is elusive. It might be, as he quotes Scalia, “the most fundamental, deeply felt beliefs of our society” (p.28), or just simply “accepted political norms” (Rossum quoting Scalia, p.29). But he also reads Scalia as saying it is the combined rights of the majority to rule and the protection of some rights of the minority (p.28) and the “legal traditions flowing from [the Constitution’s] text” (p.29). Despite the elusiveness of “tradition,” statements such as these give Scalia’s mode of interpreting constitutional ambiguity a Burkean flavor. In this respect, it is not surprising that Scalia rejects the more literalist and historicist varieties of original interpretation. As Rossum relates Scalia’s originalism, the justice uses original materials, such as THE FEDERALIST, less to address modern issues than to define a “traditional” constitutional structure that limits judicial power (p.47). Unfortunately, Rossum does not further explore how Scalia’s mix of tradition and structuralism clearly distinguishes him from the version of originalism offered by Clarence Thomas and the structuralism of William Brennan.

As Rossum’s chapters reveal, the application of tradition by Scalia is uncommon. However, in discussing cases in which tradition serves as a basis for Scalia’s opinions, Rossum is both uncritical about how Scalia defines a tradition and blind to the discretion that any reading of tradition implies. As Rogers Smith’s (1997) study of American citizenship reveals, it is wrong to state a single social or political tradition has existed in the United States. Likewise, the very contentiousness of American politics and constitutional interpretation over two centuries raises questions about any tradition of political or constitutional interpretation. As discussed by James Madison, the problem of majority faction raises the question of whether a majority tradition always is a truthful statement of a constitutional tradition. However, Scalia never doubts that a deep-seated moral, religious, and political consensus comprises the American social and constitutional tradition. Consequently, he finds a tradition of publicly supported religious ceremonies provides social and political evidence of a long-recognized meaning of the No Establishment Clause (pp.133-35). He does not recognize that this tradition is rooted in the inegalitarian efforts of various factional interests to enforce their religion through law, such as requiring students to read the Anglican King James translation of the Bible and the Protestant text of the Lord’s Prayer in classrooms, Catholic efforts to save financially strapped parochial schools, and evangelicals’ efforts to make America into a Biblical Promised Land. Scalia also finds a legal tradition to support a textualist reading of the Equal Protection Clause that blithely ignores the complicated historical debate about the meaning of the Clause. Neglecting such criticism of the justice, Rossum is content to argue that such constructions of tradition and Scalia’s restricted original meaning jurisprudence generally are “devoted to [*292] checking judicial discretion” (p.207). However, it can be argued that Scalia’s efforts to find and state a tradition ironically make the devotee of text and legal precision into an apostle of a discretionary choice based on unfounded generalities and law-office history. Further criticisms such as these can be lodged about how Rossum presents the value of Scalia’s jurisprudence. They obviously can lead his academic critics and supporters into unending debates about the nature and meaning of American constitutionalism. However, by reading this book, less sophisticated readers might fail to appreciate the controversies surrounding Scalia’s politics and constitution.

Two other aspects of Rossum’s book merit attention. The first is Rossum’s muting of the linkage between Scalia’s political norms and his jurisprudential practice of text and tradition. Rossum endeavors to display Scalia as “principled” or guided by interpretative norms when he makes choices. True, the instrumental choices that Scalia makes in specific cases evidence “legal” modes of interpretation. But, Rossum neglects how the justice’s instrumental choices are situated in a mindset constituted by contemporary conservative values. Scalia’s decision to read texts narrowly and often without context, the very use of tradition, and the sarcasm occasionally directed at people who do not see the world his way serves as an instrument to achieve a particular kind of America. He might claim this vision best fits a democratic society, but it also is his special version of the New Right’s constitution of American politics. By neglecting to situate the basis of Scalia’s version of American constitutionalism with New Right principles, he obscures how Scalia is both engaged in the New Right’s effort to reorient America away from the New Deal’s political vision and blind to other threats to free government. He thus undervalues Scalia’s political importance.

However, Rossum at least does recognize that Scalia’s constitution develops from the right of the people to govern themselves rather than be overruled by unelected judges (pp. 207-8) – a standard theme in anti-New Deal, anti-CAROLENE PRODUCTS footnote 4 jurisprudence. Indeed, Scalia and Rossum apparently both regard that the primary threat to democracy is unelected judges creating rights for minorities that trample on the rights of a democratic majority (p.37). Although Scalia can be faulted for inconsistency – as an unelected judge, he himself is defining that right of self-governance when he rejects legislative efforts to establish affirmative action programs, ban hate speech, or protect the environment – what is politically interesting is not just that New Right notions help constitute Scalia’s constitution, but that the object of his constitutionalism is a “problem” that is increasingly unimportant. Not only is the idea that unelected judges are a serious threat to popular democracy a little naive (as the judicial impact literature and data on public opinion and the Court suggests), perhaps the problem facing American democracy today is quite different. Perhaps the problem is not Scalia’s and Rossum’s unelected judges or the Warren Court’s concern with the oppression of minorities. [*293] Rather, it might be the overweening, extra-governmental power of global corporations, such as the big five firms that control electronic communications and the context of much political debate, that is the greatest threat to democracy. Regardless, Rossum might have better served his readers by not just situating Scalia’s text and tradition methodology in the context of the constitutional politics of the twentieth century but thinking more about how Scalia’s text and tradition jurisprudence might more broadly shape or reshape free government in response to the political threats of a new century.

Second, Rossum argues that Scalia has had a great impact on constitutional law. Although he rightly points out that Scalia has joined the other conservative justices’ effort to limit federal power and the expansion of constitutional liberties, he notes that Scalia has not formed a stable “text and tradition” majority on the Court. Rather, he has induced some of his colleagues to utilize textual interpretations and employ them on occasion. Also, Rossum claims that the inclusion of Scalia’s opinions in casebooks signifies his significance to “command the attention and engagement of the broader legal community (p.205). But, the publication of opinions in textbooks might be less a measure of influence than a reflection of the habit of instructors to offer talking points for class discussion or perhaps even to have the opportunity to dismiss Scalia. At any rate, whether attention to Scalia is a mark of respect or part of an effort to marginalize his views, it is a topic worthy of further and more extensive inquiry.

As these concerns suggest, Rossum’s effort to evaluate Antonin Scalia’s jurisprudence is open to counter-arguments on several fronts. Indeed, such argumentation is part and parcel of the practice of constitutional government and the construction of a just polity. Certainly Rossum’s capable defense of Justice Scalia encourages such argumentation, and I think that at the very least his book admirably serves a place in the American engagement in self-government.

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

CASE REFERENCES:
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 494 U.S. 872 (1990).

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

LOCKE v. DAVEY, 540 U.S. 712 (2004).

UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).

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© Copyright 2006 by the author, Richard A. Brisbin, Jr.

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LAW AND REVOLUTION II. THE IMPACT OF THE PROTESTANT REFORMATIONS ON THE WESTERN LEGAL TRADITION

by Harold J. Berman. Cambridge, MA: Harvard University Press, 2004. 544pp. Hardcover. $52.50 / £33.95 / €48.40. ISBN: 0-674-01195-3.

Reviewed by Javier A. Couso, Universidad Diego Portales, Chile. Email: javier.couso [at] udp.cl

pp.285-288

Two decades after the publication of his well known LAW AND REVOLUTION. THE FORMATION OF THE WESTERN LEGAL TRADITION (1983), Harold J. Berman has issued a second volume, aimed at expanding his analysis of the role played by what he takes to be a series of key “revolutionary moments” in the configuration of the Western legal tradition. While in the first volume Berman concentrated on the “Papal Revolution” (1075-1122), which in his view led to the emergence of “the first modern legal system,” in this second installment he addresses the “German and English Protestant Revolutions” of the sixteenth and seventeenth centuries.

As the above suggests, the book under review should be regarded as an integral part of a larger work aimed at tracing the emergence, development, and eventual crisis of the Western legal tradition, a rather formidable task. This is explicitly stated by Berman at the outset of LAW AND REVOLUTION II: “The principal purpose of this introduction is to recapitulate . . . the main themes of the entire work, in order to place the sixteenth—and seventeenth—century transformations of German and English law, respectively, in the context of the Western Legal tradition as a whole, from its origins in the late eleventh century, through its successive major transformations, to its precarious situation in the twentieth and early twenty first centuries” (p.2).

Given the continuity between Berman’s two books dealing with the Western legal tradition, it is important to briefly state the main contours of what he considers the whole work. As Berman himself has acknowledged, his approach to legal history is tributary of the “millennial” historiography of Eugen Rosenstock-Huessy, a rather forgotten scholar who (back in 1938), advanced the thesis that the history of “Western civilization” is best understood as a series of crucial “revolutions” which shaped “its spirit” (Rosenstock-Huessy 1993).

Following Rosenstock-Huessy’s thesis, Berman identifies six key “revolutionary moments” shaping the legal tradition of the West. These critical junctures were, in historical order: a) the “Papal Revolution” of the eleventh and twelfth centuries; b) the First Protestant Revolution inspired by Martin Luther in Germany, in the sixteenth century; c) the Second Protestant Revolution of Calvinist England, in the seventeenth century; d) the American and French Revolutions of the late eighteenth century; and finally, e) the Russian Revolution of the early twentieth century. [*286]

What is peculiar about Berman’s approach to legal history is the emphasis he places on the impact that changes in the “belief system” of different eras have had in the evolution of legal institutions and legal thought. In his own words: “Now that leading economic historians, taking a millennial view, have recognized that changes in legal institutions have played a key role in the economic development of the West, it remains for legal historians to show that changes in the belief system have played a key role in the development of those legal institutions” (p.23).

As this passage suggests, Berman takes belief systems to play a crucial role in the formation and development of law—a domain which he believes with Douglas North and other to be key in the evolution of economics. More specifically, Berman believes that religion (i.e., theology) has been the most important “belief system” contributing to the Western understanding of law. In taking this “spiritual” understanding of what influences legal evolution and revolution, Berman is consciously against materialistic accounts of a Marxist or Weberian nature.

After identifying the revolutionary moments that have presumably shaped the Western legal tradition, Berman justifies the relevance of his enterprise, arguing that being aware of this history is critically important, given the crisis facing the Western legal tradition at the dawn of the new millennium: “In the early twentieth century, the Western legal tradition is no longer alive and well” (p.382). This crisis can only by addressed with full knowledge of the “spirit” and trajectory of legal tradition over the last millennium. “Because we are at the end of an era,” he assets, “we are able to discern its entire course; and it is because we are at the beginning of a new era of transnational and transcultural interaction that we must search our past in order to find what from its beginning gave its vitality, and what can help us meet the challenges of the future” (p.21).

The theoretical framework just described permeates the two volumes of Berman’s LAW AND REVOLUTION. In fact, although the second volume emerges after almost two decades since publication of the original volume – that is, after the author was aware of the mixed reception given to his first book – the general theoretical framework remains untouched.

The structure of the book under review follows a clear format. After a brief introduction restating the general framework, two long sections analyze each of the Protestant Revolutions. Finally, a short conclusion is provided. The first long section addresses the German Revolution (1517-1555), where Berman describes the impact that the Lutheran Reformation had on the political and constitutional landscape of what is now Germany, as well as the way in which ‘Lutheran legal Philosophy’ transformed German legal science and substantive areas of criminal, civil, economic and social law. The second section is dedicated to a similar analysis of the English Revolution (1640-1689). [*287]

Even though it is hard to do justice to what amounts to an impressive synthesis of massive legal-historical data, one can summarize Berman’s account of the impact of the German Lutheran Revolution on the Western legal tradition as follows: the breakdown of the unity of Christianity – due to Luther’s call for reform and eventual break from the Catholic Church – led to the transfer of the ecclesiastical jurisdiction previously under control of the Catholic Church to the secular authorities of Germany, which then started to regulate matters previously left to Canon law (such as laws governing ecclesiastical liturgy, marriage, oral offences, education and poor relief). According to Berman, this revolutionary process had an enormous impact on the Western understanding of constitutional law and theory, in particular, the gradual establishment of a religiously plural society.

At this point, it must be said that Berman’s efforts to try to make a direct link between the theological thought of Luther and the way German constitutional, criminal, civil, economic, and social law evolved after the Protestant Reformation, are not entirely successful. It is not clear that the evolution of the German legal system of the sixteenth century can be explained by changes in Christian theology of the time, or instead by the sheer political impact of Luther’s call for Reformation and ultimate break with the Catholic Church.

Something similar happens with Berman’s account of the second ‘legal revolution’ analyzed in this volume, that of seventeenth-century England (which he labels the ‘English Calvinist Revolution’). In this case too, the author argues that the revolutionary change experienced by the English legal system in the period 1640-1689 is a consequence of ‘Puritan’ ideas. Thus, in a same way in which the Lutheran theology explains change in the German legal system of the sixteenth century, evolution in the religious domain during the English Calvinist revolution of the seventeenth century are thought by Berman to be the crucial factor explaining the emergence of, say, the doctrine of precedent or the rise of relatively independent courts in England. The problem, of course, is that correlation is not the same as causation, so even if it is true that England experienced a fundamental change in its belief system at the time, it is not at all clear that it explains the rather revolutionary changes experienced in the legal domain.

It is hard to provide a summary that does justice to a work containing an enormous amount of detailed legal-historical material, skillfully gathered by an author who has devoted almost two decades to this task. Therefore, one should celebrate the enormous erudition and work done by Harold Berman in conveying extremely complex historical processes and legal doctrines in a rather clear and coherent way. Just for doing that, this book represents a highly valuable contribution, particularly with regard to the material dealing with the German legal history of the sixteenth century (of which there is so little available in English). Having said this, one cannot but express frustration over the [*288] fact that the ultimate thesis of the book does not seem to work, because the author fails to establish an explicit link between the “spiritual” changes in the religious domain and those occurring in law. At any rate, and even if the ultimate thesis did not persuade this reader, it is a valuable and fascinating contribution to the literature on fundamental aspects of the Western legal tradition.

REFERENCES:
Berman, Harold J. 1983. LAW AND REVOLUTION. THE FORMATION OF THE WESTERN LEGAL TRADITION. Cambridge, MA: Harvard University Press.

Rosenstock-Huessy, Eugen. 1993. OUT OF REVOLUTION: AUTOBIOGRAPHY OF WESTERN MAN. Oxford: Berg Publishers.

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© Copyright 2006 by the author, Javier A. Couso.

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CO-ACTORSHIP IN THE DEVELOPMENT OF EUROPEAN LAW: THE QUALITY OF EUROPEAN LEGISLATION AND ITS IMPLEMENTATION & APPLICATION IN THE NATIONAL LEGAL ORDER

by Ernst M.H. Hirsch Ballin and Linda A.J. Senden. T.M.C. Asser Press, distributed by Cambridge University Press, 2005. 184pp. Hardcover. $55.00/£33.00 (includes CD-ROM of survey instrument and data). ISBN: 90-6704-184-X.

Reviewed by Gordon Silverstein, Assistant Professor of Political Science, the University of California, Berkeley. Gsilver [at] berkeley.edu

pp.282-284

The European Union and its Court of Justice tantalizes students of public law and international relations alike. From the Treaty of Rome through Maastricht, from the Court’s announcement of judicial review to its assertion of supremacy and the direct effect of European rules and directives, the Court has been the engine that not only has propelled the Union into an ‘ever-closer’ relationship, but kept it on track for that goal. But the natural progression from Rome to Maastricht to Amsterdam and Nice, jumped the tracks last year when first France and then the Netherlands rejected the treaty in popular referenda.

The European Union is, of course, still very much with us. And most of the questions addressed in this book – which is actually a formal, General Report of the Association of the Councils of State and the Supreme Administrative Jurisdictions of the European Union – are still very much worth considering. Perhaps, even more in light of the failure (or at least significant delay) in the ratification of the European Constitution.

The key dilemma is how to govern a system of sovereign states that is far more than an international organization and yet, a good deal less than a single unified state. The trick, as Herman Tjeenk Willink (Vice President of the Dutch Council of State) notes, is “how to maintain the delicate balance between unity and diversity,” when accomplishing anything in the Union actually requires independent and yet interdependent efforts by the organs of the Union as well as by national legislatures – and when the implementation and interpretation of these efforts is developed by Member State courts as well as the central, European Court of Justice (p.v).

As Ernst Ballin notes in his reflections, which constitute a rather intriguing first part of this book, Holy Roman Emperor Henry VII tried and failed to assert “general legislative powers as ‘ruler of the world’” in 1313. But enforcement was the problem then, as it remains today. A Prince’s jurisdiction, Pope Clement V recognized in 1314, extends “no further than his power to enforce it” (p.11). And that simple observation still plagues the ever-closer European Union.

The European Union has developed a number of techniques to combat this problem. One of them was the fairly neat trick pulled off by the European Court of Justice which built upon treaty provisions authorizing Member State courts to seek rulings from the central [*283] court in the course of their own interpretation and enforcement of laws and rules. Rather than forcing Member State courts to bow to their supreme rule, the system turned the tables, and offered some real incentives for Member State Courts to use the central court to enhance their own power and authority, a point that was early noted by Joseph Weiler (1991) and has been well developed and explored by Karen Alter (2001).

This relationship, this co-authorship, is one of the elements at the core of the project behind this report. What makes for better and worse legislation in the context of a complex system of sovereign states in an ever-closer union? The authors suggest that in Europe, unlike traditional nation states, the test of the quality of legislation is not the substance of that legislation necessarily, but rather its capacity to coordinate a large number of national political systems while simultaneously allowing those systems to maintain and enhance their diversity.

The report suggests that we think about this as something of a five-step process. European Legislation, it is suggested, is drafted with the participation of Member State experts and officials; it is sanctioned and put into force by the Council, which represents directly the Member States’ chief executives; it is implemented through separate Member State legislation in many cases, and then interpreted by Member State Courts, who apply EU law (which is shaped and determined by the European Court) within their own national legal systems; and these experiences then ultimately feed back into the next round of legislation (p.20).

The diversity, Ballin and Linda A.J. Senden seem to suggest, comes largely in the implementing legislation, the coordination and reconciliation of which is largely a product of the judicial system. This allows Europe to maintain diversity and its commitment to subsidiarity (decision making at the most local-level possible given the objectives and demands on that legislation) and yet still maintain coherence and consistency across the ever-larger Union of independent nations.

Ballin’s part of this report is, as the title indicates, a set of “reflections on co-actorship.” Senden writes the actual report here, and develops a more formal consideration of the problems, working to pull together extensive data from a survey and questionnaire that she developed, and to which each country has responded. These questionnaires and the reports and responses to them are included in full form on a CD-ROM included with the book – a source of very valuable data for anyone with an interest in this field. These 17 responses include reactions from the Court of First Instance and the European Court of Justice, as well as from the Member States. For those linguistically challenged, however, only four of the country questionnaire responses are in English (England, Finland, Austria and Denmark); the rest are in French – as are the responses from the two courts.

Senden summarizes these responses, analyses the data and generates some general conclusions and prescriptions in [*284] her report. Her compilation of the data dealing with the nature and causes of the interpretation-of-legislation problem and the means that have been used to overcome these challenges, are of continuing interest despite the rejection of the European Constitution.

To illuminate the interpretive problem, Senden asked respondents to consider three case studies to help illuminate the nature and causes of interpretation difficulties. One deals with a 1977 directive on the harmonization of tax laws; another is from 1979 on the conservation of wild birds, and a third from 1992 on the conservation of national habitats and other environmental rules.

Senden’s conclusions focus less on the subjective quality of European legislation and far more on the techniques needed to encourage Member States to be genuine participants rather than mere consumers of European legislation. To do this, the report focuses on increasing transparency in the European legal process; techniques to minimize the implementation and interpretation problems stemming from institutional, linguistic and other barriers; a call to develop a better system for Member States to compare and share best practices and ways to help national courts use preliminary references to participate in developing and improving legislation.

This then opens up what may be of greatest interest to public law scholars – an extended discussion of how these preliminary reference systems should work, how they might be streamlined, and the consequences of formally introducing break-mechanisms, or greater screening of references to the ECJ, either by the national courts themselves, or through forms of docket-control for the ECJ, some of which might require treaty revision and others that might be developed more informally.

These are intriguing observations, and the report (along with the CD-ROM) provides useful reference material. While it would not likely find a place in very many courses, it should find a place in good research libraries.

REFERENCES:
Alter, Karen. 2001. ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE. Oxford: Oxford University Press.

Weiler, Joseph W.W. 1991. “The Transformation of Europe.” 100 YALE LAW JOURNAL 2403-2483.

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© Copyright 2006 by the author, Gordon Silverstein.

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MONEY AND FREE SPEECH: CAMPAIGN FINANCE REFORM AND THE COURTS

by Melvin I. Urofsky. Lawrence, KS: University Press of Kansas, 2005. 336pp. Hardcover. $29.95. ISBN: 0-7006-1403-6.

Reviewed by David S. Mann, Professor of Political Science, College of Charleston. Mannd [at] cofc.edu

pp.277-281

In recent years, the University Press of Kansas has made a serious commitment to publish books about Supreme Court cases and patterns in American politics. Melvin I. Urofsky’s recent endeavor to explain campaign finance reform is a wonderful work that takes the reader from the earliest attempts at controlling campaign finance through MCCONNELL v. FEC (2003). I have revised my freshman course presentation of this subject as a consequence of reading this book.

The volume is in three parts. Part One discusses the history of campaign finance reform. Part Two shows how the courts have addressed the First Amendment in this issue space. Part Three, always anticipated in a Urofsky book, is the Appendix of documents, which include the Federal Election Campaign Act (FECA), three sets of amendments, and the Bipartisan Campaign Finance Reform Act (aka McCain-Feingold and BCRA).

A foremost and careful legal historian, Urofsky from the beginning informs the reader that he has a point of view. “[T]he reader should know that I started on one side, but in the course of my research and writing gradually moved to the other. . . [N]ot only is money essential to the political system, it is in fact a form of speech, and although the authors of the McCain-Feingold law had idealistic and praiseworthy goals, they failed to take into account realities other than abuses—the realities of how U.S. politics is financed, how it has operated for many years, and above all, how many factors go into each person’s decision on how to vote” (p.xi). This admission was surprising, especially when the concept of paying for free speech seems like such a contradiction to the freshman student who sees data that show how much money is invested in political campaigns.

Urofsky begins with a mercifully short history of early campaign finance, from Washington, Hamilton, and Jefferson through J.Q. Adams, Jackson, and James Buchanan in about seven pages, three early 20th century statutes that I had never heard of before (The Tillman Act and two statutes called Federal Corrupt Practices Acts), the more familiar Hatch Act and several other statutes that take us to the early 1970s in 27 pages. He summarizes all this by writing that the effects of these statutes “could be described as negligible at best” (p.27). Most chapters begin with a preface quote, and this chapter’s is telling. He quotes Mark Hanna as saying “There are two things that are important in politics. The first is money, and I can’t remember what the second is” (p.4, citation omitted). [*278]

Chapter Two is a discussion of the Federal Election Campaign Act and BUCKLEY v. VALEO (1976). We see a pattern emerge, where Congress, not the most speedy policy-making body in the world, responds to campaign finance abuses “only to see much of its work undone by the Supreme Court” (p.28). Television changed everything. Urofsky shows us data from Jacobson’s MONEY IN CONGRESSIONAL ELECTIONS to demonstrate that the House seat that cost a million dollars to finance in 1958 cost $3.6 million in 1970, that the Senate seat in the same time frame went from 1.3 to 6.7 million, and that the cost of all federal campaigns jumped threefold from1952-72, to 425 million dollars. Those jumps in expenditures seem huge; the dollar amounts would fund many a small college, but even those amounts are dwarfed thirty years hence. In the early 1970s, add Watergate to the equation, the growth in cynicism and distrust of government, the emergence of Common Cause “and other groups dedicated to electoral and government reform” (pp.44-45), and public opinion polls that showed an interest in tax support for federal campaigns, and we see more fully the background for the 1971 statute.

The 1971 Federal Election Campaign Act (FECA), however, had no contribution limits unless the candidate was wealthy. We are familiar with some provisions of FECA, especially the expenditure limits and the creation of the Federal Election Commission. We are more familiar with the 1974 version of FECA, and Urofsky bullets several critiques of the statute on pages 51 and 52, but the most surprising criticism on which he would rely for his own position is from Justice Brandeis’ concurrence in WHITNEY v. CALIFORNIA (1927): “Rather than stifle ‘bad’ or unpopular speech, Brandeis declared, the remedy is more speech, and the result will be an informed citizenry and a vibrant democratic society” (p.53). So the famous lawsuit initiated not only by James Buckley, but also joined by Eugene McCarthy, Stewart Mott, the ACLU, and others – as odd a coalition would emerge in 2002 – began. Urofsky provides the reader with much more detail than is shown in the typical freshman government text or than might even be known by the typical freshman government instructor, including yours truly.

I confess that the BUCKLEY majority reasoning always has been confusing to me. It was a pleasant surprise to learn that Urofsky finds the reasoning confusing as well. “Rich candidates, in other words, had unlimited expression rights, but not rich donors” (p.57). Untouched by BUCKLEY: FECA permits PACs, party committees had to register with the Federal Election Commission (FEC), state party committees and national party committees had different rules and contribution limits, national party committees could transfer money to Senate candidates’ committees, expenditures on behalf of candidates varied by office and state population. There was no distinction between “hard” and “soft” money.

In the 20-year span beginning in 1980, both parties encouraged large gifts by creating special designations. For [*279] instance, the RNC made a list of those who contributed $100,000 to the party. Urofsky is blunt. He writes: “A half billion dollars buys an awful lot of campaign buttons, bumper stickers, and yard signs, so clearly the party definitions of grassroots activities, voter registration and get-out-the-vote expanded from what had been the relatively limited definition intended by Congress” (p.66). Soft money would eventually be funneled into federal campaigns, overhead costs, and generic advertising. FEC did nothing to control soft money.

Leaders of both political parties became very imaginative in their fundraising techniques. We all know of the Clinton/Lincoln bedroom fundraising. The GOP was no less involved, where those who gave $250,000 would be able to have private meetings with party leaders. “[T]hey both acted in gross disregard of the law” (p.98). Urofsky reminds us of the Keating Five and Congressional attempts from Reagan through Bush the Elder to generate new campaign finance regulations. The author goes into great detail describing proposed legislation of the 1990s in Chapter Four, which he entitles “The Road to McCain-Feingold.” By the end of this chapter, the reader knows the pattern: campaign finance abuses eventually lead to legislation, where the combination of loopholes and case law largely eviscerates the statute, and the cycle repeats itself.

Part Two begins with Chapter Five, where Urofsky walks the reader through some familiar and sometimes forgotten cases, such as GROVEY v. TOWNSEND (1935), SMITH v. ALLWRIGHT (1944), SOUTH CAROLINA v. KATZENBACH (1965), and others. This chapter spends five pages summarizing BUCKLEY, which the author had briefly and necessarily discussed earlier. My only serious criticism of the book is with his less than one page treatment of FEC v. NCPAC (1985), which, to my mind, was a vital case in legitimating PAC expenditures on behalf of candidates. I would like to have read a longer discussion. Nonetheless, by the end of this chapter Urofsky reminds us that the Supreme Court has spent considerable time subsequently trying to figure out what BUCKLEY meant.

The rest of Part Two, four chapters and about 100 pages, is a rendition of the litigation concerning BCRA and the case of MCCONNELL v. FEC (2003). Here, if not before, the reader must become impressed with Urofsky’s scholarship. Here, if not before, the reader whose specialty is the federal judiciary and civil liberties will have some fun. The author begins at the District Court level. The author provides summaries of the briefs for both sides. As with BUCKLEY, the plaintiffs ran the ideological gamut from Senator McConnell to the ACLU to the NRA, and Urofsky pays special attention to the arguments made by all. The ACLU brief looked at the big picture, asserting that BCRA would have a harmful impact on all advocacy groups. The NRA, on the other hand, had “but one purpose: to elect candidates supportive of their Second Amendment views and to defeat those who disagree. Yet both claim – legitimately – that their speech is political and therefore [*280] protected” (p.159). I did not know that the Pew Charitable Trusts provided research that supported the defendants. Pew funded Norman Ornstein to write a column for the “PewWire,” and funded research by the Center for Public Integrity, the Center for Responsible Politics, BYU, the Alliance for Better Campaigns, and Colby College (p.167). “In all parts of their briefs, the government and especially the intervenor-defendants kept hammering on the alleged corruption of the system, piling up one horrible example after another, in the hope that the court would agree and would acknowledge the compelling interest necessary to justify restricting speech” (p.173). In all, the briefs amounted to 1,676 pages, 41 boxes of evidence, and 13 binders of depositions from over 200 expert witnesses (p.178)—an awesome volume of data for any court to digest, let alone a three judge District Court panel.

In Chapter 7, aptly titled “Confusion in the District Court,” Urofsky provides some biographical information about the three judge panel and then in essence trashes its opinion. He discusses the apparent tension between the three judges, including snippets of quotes from the opinion that illustrate the bottom line: the panel’s opinion would do little to assist the Supreme Court.

Chapter 8 covers the oral argument and Supreme Court decision in MCCONNELL. There is at times some mind-boggling detail about BCRA and the justices’ views of various sections of the statute. After about 35 pages, Urofsky clears the air with a succinct summary. “In the end, five justices deferred to congressional findings and agreed with the defenders of the law that sufficient evidence existed to warrant the restrictions placed on campaign finance and on political speech. . . . Four did not see it that way, and their opinions upheld what had been the Court’s devotion to the basic principle that under the First Amendment, political speech in any form is a core value that should not be restricted” (p.228).

Finally, Urofsky discusses reaction to the decision and an epilogue. He concludes reflecting once again the words of Justice Brandeis that “the cure for allegedly bad speech is not regulation, but more speech” (p.250).

Personally, I struggle with this topic. Money may be the mother’s milk of politics, and the history that Urofsky provides surely illustrates that point. It just seems like a contradiction that free speech can be bought. Those who have more can buy more, the rich candidates can spend as much of their own money on their campaigns as they wish, but the less wealthy have to pursue other avenues of fundraising to compete. Weeks ago, when this review was originally due, Jack Abramoff and the lobbyist scandal was headline news. There were clamors for more reform, which even now are virtually off the radar. So the pattern continues where this book leaves off: corruption, legislation or attempted legislation, case law. As with most issues in civil liberties and the First Amendment, all we can really do as teachers/scholars is to raise questions, try to get students to think about these significant issues, and stay tuned. [*281]

REFERENCE:
Jacobson, Gary C. 1980. MONEY AND CONGRESSIONAL ELECTIONS. New Haven: Yale University Press.

CASE REFERENCES:
BUCKLEY v. VALEO, 424 US 1 (1976).

FEC v. NCPAC, 470 US 480 (1985).

GROVEY v. TOWNSEND, 295 US 45 (1935).

MCCONNELL v. FEC, 124 S.CT. 619 (2003).

SMITH v. ALLWRIGHT, 321 US 649 (1944).

SOUTH CAROLINA v. KATZENBACH, 383 US 301 (1966).

WHITNEY v. CALIFORNIA, 274 US 357 (1927).

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© Copyright 2006 by the author, David S. Mann.

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INTERPRETATION AND LEGAL THEORY (rev. 2d ed)

by Andrei Marmor. Oxford and Portland, Oregon: Hart Publishing, 2005. 185pp. Paper. £30.00/$60.00. ISBN: 1-84113-424-4.

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

pp.271-276

Many students of law seem to regard jurisprudence and adjudication as techniques that enable a lawyer or a judge to establish the definite content of legal provisions applicable in a certain case. If an unambiguous conclusion cannot be reached, lawyers reckon that they have overlooked something or have to improve their legal skills. Quite often, they are disappointed that they cannot find objective and uncontestable answers in the law. Andrei Marmor would not argue for such a trivial view of the law and legal skills. Yet, his arguments propound a picture of law in theory and practice that does come close to the student’s perspective: Marmor is a defender of legal positivism, and according to him, interpretation – and thus a central feature of the contested character of practical reasoning – is the exception. In his book INTERPRETATION AND LEGAL THEORY he argues that it must be possible for us to grasp the meaning of a legal rule in a way which does not require recourse to interpretation. Though this view is founded in a certain reading of Ludwig Wittgenstein’s philosophy of language, Marmor sustains it by repeated reference to legal praxis as some way of following rules and conventions.

Legal positivists hold that it is the task of legal scholars to distinguish between the questions ‘what is the law?’ and ‘how should judges decide cases?’ The legal positivist does not deny that there may be a number of different solutions to a certain legal problem, but her approach is primarily explicative and not applicative viz. constructive. In turn, this attitude emphasizes the discretionary power and the ‘technical’ skills of the judge. Such a view is, for example, expounded in Hans Kelsen’s seminal book on legal positivism (1960/67). Kelsen devoted only seven pages of his book of more than 400 pages to the problem of interpretation. He argued for a clear distinction between interpretation as a task of the judge who is bound to decide in a case even on a rather vague basis (as every utterance of words is vague) and interpretation as a task of a legal scholar which shall be the pure cognitive ascertainment of the meaning of a legal provision.

These sketchy remarks are not intended to devalue the contribution that Kelsen and other positivists have made to legal theory. However, developments in the philosophy of language, the emergence of new modes of literary theory, and the migration of some of their concerns into philosophy of law led to a new interest in the role of interpretation in legal reasoning. The context was set by civil rights movements and the further development of the welfare and the regulatory state which brought forth a whole new set of questions in legal [*272] theory and practice. Thus, a number of theorists started to explore the parallels and divergences between law and philosophy of language, as well as interpretation in law and interpretation in literature. Ronald Dworkin’s ‘LAW’S EMPIRE’ (1986) is widely regarded as the most elaborate account of law as an interpretive concept that calls into question the main tenets of its positivist rival.

Andrei Marmor is one of those thinkers who presented a re-examination of legal positivism in the light of Dworkin’s challenge in 1992. Since then he has developed a theory of social conventions to provide new foundations for legal positivism (Marmor 2001) and has become one of the foremost representatives of his field. He has now revised and partly rewritten his first book INTERPRETATION AND LEGAL THEORY. Indeed, and as Marmor accentuates in the Preface, this second edition is more of a restatement to clarify the arguments and to add a discussion of interpretation in the constitutional domain (which has probably made the most considerable impact on the recent discussion on legal theory and interpretation). However, it is not a reply to his critics. While this may afford a more coherent book, it does leave the reader quite puzzled at times. After all, some of Marmor’s theses are disputed and so are some of the epistemic and philosophical foundations of his arguments.

INTERPRETATION AND LEGAL THEORY provides a powerful critical assessment of Dworkin’s methodological turn, away from analytical jurisprudence towards a general theory of interpretation. It disputes the first premise of Dworkin’s arguments, namely, that every conclusion about what the law is necessarily depends on interpretation. In turn, Marmor argues that interpretation is “part and parcel of the legal practice” (p. 45). Thus, jurisprudence should comprise a theory to account for this. But this should be a theory, which is not itself an interpretation of the law, but a philosophical account of what it is to interpret the law (p.45). The philosophical foundations that Marmor promotes for such an enterprise are mainly based on a specific reading of Ludwig Wittgenstein’s famous though disputed account of following a rule (Wittgenstein 1958, §§143-242; cf. Dickson 2005).

Marmor’s understanding of the concept of interpretation is explained in the context of a dense introduction to contemporary philosophy of language (ch. 2). Marmor asks what makes interpretation unique and different from any other forms of understanding or explanation. A discussion of semantics as an analysis of meaning, Donald Davidson’s theory of ‘radical interpretation’ and pragmatics leads to the conclusion that “interpretation consists in the imposition of meaning on an object, whereas the appropriate notion of meaning is given in terms of communication intentions.” Marmor argues that “interpretation is an exception to, and parasitic on, the prior knowledge of literal meanings, as it normally concerns those aspects of communication which are under-determined [*273] by rules or conventions” (p.25).

Marmor’s critique focuses on Dworkin’s “Constructive Model of Interpretation,” which holds that interpretation strives to present its object in the best possible light, that interpretation is essentially genre-dependent and that there are certain constraints that determine the limits of possible interpretations of a given object. By now, Marmor has become well-known as an ardent critic of Dworkin’s argument of “in the best possible light.” He confronts Dworkin’s thesis with a discussion of author’s intentions, the genre-dependency of any text and the notion of incommensurability of values. This lets him conclude that we should not seek an answer to the question why we should strive for an “interpretation in the best possible light” in Dworkin’s general theory of interpretation but in his jurisprudence. Therefore, he assesses Dworkin’s critique of analytical jurisprudence and the relation between theoretical and practical argumentation. However, from the standpoint of legal theory he has to refute these arguments. This is because he holds the view that analytical jurisprudence strives to understand what the law is and not why we should obey the law (p.43).

This line of critique becomes clearer when Marmor explicates the epistemic foundations of Dworkin’s theory, especially the author’s understanding of coherence. Remember that Dworkin has repeatedly argued that a legal system comprises not only the conventionally identifiable law, but also those norms which can be shown to fit or cohere better with the best theory of the settled law. Marmor is skeptical about the scope and possibility of any coherence theory of knowledge and he underpins his point by an analysis of coherence theories, notably John Rawls’ “reflective equilibrium.” Dworkin has interpreted Rawls’ approach and adapted it for his own argument for a moral theory which endorses coherence as one of its basic values. This thought is explicated in a discussion of the concepts of ‘identity’ and ‘fit’ and a review of the ‘Fish-Dworkin-Debate.’ Marmor attempts to understand this debate as a discussion about the constraints of interpretation. In his view, the assumptions and the difficulties of Dworkin’s and Fish’s arguments can but lead to the conclusion, that “if legal texts have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood” (p.64) – and this is exactly what Marmor propounds in his theory.

Marmor’s defence of legal positivism in light of Dworkin’s challenge and his theory on what it means to interpret the law builds on Joseph Raz’s “doctrine of authority” (Raz 1985), H.L.A. Hart’s distinction between the core and penumbra of concept-words at the basis of judicial reasoning (Hart 1958) and Wittgenstein’s remarks on following a rule (Wittgenstein 1958). Marmor argues that constructive identification in law – a core concept of Dworkin – is rendered impossible due to conceptual reasons which can be derived from Raz’s analysis of the concept of authority (p.87). This analysis entails that the law claims to possess legitimate authority [*274] and that it must be possible to identify the authority’s directive independently of the reasons on the basis of which the authority found its decision. Then, he confronts Dworkin’s disapproval of the distinction between ‘easy cases,’ where the law can be simply understood and applied straightforwardly, and ‘hard cases,’ where the issue is not determined by existing legal standards (p.95). Marmor argues that this distinction builds on one of the main insights of legal positivism, namely its insistence on the conceptual separation between law as it is and law as it ought to be.

This all leads to the assumption that “judges can identify the law and apply it without references to considerations about what the law ought to be in the circumstances” (p.95). While critics may associate this with a “philosophical scarecrow called judicial formalism” (p. 97), Marmor thinks that these conceptual tenets stand on a firm basis and should be upheld. Reminding the reader of Hart’s distinction between the core and penumbra of concept-words, he argues that this distinction is entrenched in a “highly sophisticated conception of meaning and language, namely, that of Wittgenstein” (p.96). An elaborate analysis of the ‘Hart-Fuller-debate’ is intended to clarify Hart’s arguments and to illustrate his shortcomings. In order to refute Fuller’s allegation against Hart and to restate the latter’s arguments it is necessary to discuss Wittgenstein’s thoughts on what it means to follow a rule in more detail. Again, Marmor asks “whether it makes sense to maintain that any application of a rule must be mediated by an interpretation of the rule in question” (p.112). He explains that Wittgenstein’s concern with what following a rule consists derives from his conception of meaning. And this is, in turn, not an inner state of mind, but rather an (array) of abilities to use the expression in accordance with the rules of the language. Following Gordon Baker’s and Peter Hacker’s (1985) understanding of Wittgenstein (cf. the critique of Dickson 2005), Marmor argues “that the rules constituting a language-game should be clearly distinguished from the background state of affairs in which there is a point in having such rules and against which they are intelligible” (p.113). He sustains his argument by explaining Wittgenstein’s line of thought and discusses counter examples and misunderstandings – e.g., the problem of vagueness. In sum, Marmor proposes a theory of what it means to interpret the law on the basis of Wittgenstein’s arguments that complies with the main tenets of legal positivism.

What follows is a discussion of the role of the legislator’s intentions and their role in the interpretation of statutes and an attempt to elucidate the conditions under which it would be reasonable for judges to defer to the legislature’s intentions in statutory interpretation (ch.8). However, the real test for Marmor’s approach is the interpretation of constitutions and thus, the determination of issues of profound moral and political importance “on the basis of very limited textual guidance” (p.141). He is concerned with the moral legitimacy of the institution itself and the ways in which it ought to be practiced. This chapter is essentially – and in contrast to the rest of the book – a discussion about the legitimacy and [*275] power of the US Supreme Court and a critique of some recent debates about it. Marmor raises the question of what is the legal authority of the Court to rely on moral arguments in constitutional interpretations. He considers the controversies about whether judges should rely on conventional conceptions of morality, the question of ‘enumerated rights,’ and the question of whether there is a distinction between conserving and innovative interpretations. He concludes that constitutional cases are almost always ‘hard cases’ and that there is hardly any alternative to sound moral deliberation. Still, Marmor asks whether constitutional courts should not practice self-restraint and whether constitutions should be made less rigid and allow for easier amendment procedures. That is quite similar to the answer Kelsen gave in his famous 1929 lecture on the genesis of the Austrian model of Constitutional Review which is in fact grounded in legal positivism and the separation of law and morals (cf. Öhlinger 2003). However, Marmor did not take up this argument which could in fact have supplemented his re-statement of legal positivism.

To conclude: INTERPRETATION AND LEGAL THEORY is a challenging contribution to an on-going, arguably perennial debate. Especially the discussion of major works and disputes in relation to insights of the philosophy of language is of importance as it points to shortcomings and weaknesses of the prevalent adaptations of legal and literary theory.

REFERENCES:
Baker, Gordon and Hacker, Peter. 1985. WITTGENSTEIN, RULES, GRAMMAR AND NECESSITY. Oxford: Blackwell.

Dickson, Julie. 2005. “Interpretation and Coherence in Legal Reasoning.” THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Fall 2005 Edition), Edward N. Zalta (ed.). URL = http://plato.stanford.edu/archives/fall2005/entries/legal-reas-interpret .

Dworkin, Ronald. 1986. LAW’S EMPIRE. London: Fontana Press.

Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” 71 HARVARD LAW REVIEW 593.

Kelsen, Hans. 1929. “Wesen und Entwicklung der Staatsgerichtsbarkeit.” VERÖFFENTLICHUNGEN DER VEREINIGUNG DEUTSCHER STAATSRECHTSLEHRER. Tübingen: Mohr.

Kelsen, Hans. 1960. REINE RECHTSLEHRE. Wien: Franz Deuticke (Knight trans. 1967. PURE THEORY OF LAW. Berkeley: University of California Press).

Marmor, Andrei. 1991. INTERPRETATION AND LEGAL THEORY. Oxford: Oxford University Press.

Marmor, Andrei. 2001. OBJECTIVE LAW AND POSITIVE VALUES. Oxford: Oxford University Press. [*276]

Öhlinger, Theo. 2003. “The Genesis of the Austrian Model of Constitutional Review of Legislation.” 16 RATIO JURIS 206-222.

Raz, Joseph. 1985. “Authority, Law and Morality.” 68 MONIST 295-324.

Wittgenstein, Ludwig. 1958. PHILOSOPHICAL INVESTIGATIONS, Eng. trans. by G.E.M. Anscombe, 2nd ed. Oxford: Blackwell.

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© Copyright 2006 by the author, Christoph Konrath.

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COPYRIGHT EXCEPTIONS: THE DIGITAL IMPACT

by Robert Burrell and Allison Coleman. Cambridge: Cambridge University Press, 2005. 458pp. Hardback. £65.00/$120.00. ISBN: 0521847265.

Reviewed by Irini Stamatoudi, LL.M, Ph.D, Athens, Greece. Email: stamatoudi [at] syrigos.gr.

pp.268-270

One of the aspects of the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, which has been most criticized, was the exceptions it introduced to copyright. Some claimed that this Directive played a rather deharmonising role, instead of a harmonizing one concerning copyright, since it bundled together all possible exceptions to copyright. Another part of the literature welcomed this regime of ‘harmonisation,’ finding it flexible as well as a tool on which users’ rights could find a basis to flourish further. COPYRIGHT EXCEPTIONS rather belongs to this latter category of literature.

Robert Burrell and Allison Coleman discuss the issue of the exceptions to copyright from a British law background (it is essentially the UK Copyright, Designs and Patents Act 1988 which is examined in conjunction with the relevant EC Directive and both authors are or used to be academics with a UK University) but not necessarily from a British law perspective. And that is because the authors do not find themselves stuck in the rigid principles of the British entrepreneur-friendly common law tradition.

This book is divided into three parts. The first part examines in detail some of the most important exceptions found in the UK Copyright Act, such as fair dealing for the purposes of criticism, review and news reporting and some related exceptions, the public interest defence, exceptions applying to education, research and private study, exceptions for libraries and so on, and the rationale behind them. The general conflict between copyright and freedom of expression is also explored. The examination of these provisions aims, amongst other things, to demonstrate that the UK exceptions present serious defects as well as practical difficulties and do not provide the certainty they claim because of their extensive detail. On the contrary, they prove to be inflexible, especially when they have to deal with new technology situations or current market practices. From that point of view reform is needed.

The second part of the book explores the various reasons, which led to the adoption of the current general copyright regime, part of which includes the current exceptions. Issues such as political factors and lobbying, institutional, constitutional and accidental factors, as the authors call them, including the divisions within the government, the mandate to the European Commission, poor drafting, a general line followed by the courts and so on, are discussed. Burrell and Coleman claim that all the above reasons, coupled with domestic, [*269] European and other supranational legislative and political processes, have led us where we are. In other words a legal and political path has been followed. The law’s incentives have not been fully explored, and when explored, a pro-owner tradition surfaces, which, apart from the political reasons, it is also the outcome of an entrepreneur-friendly common law copyright tradition, which claims that copyright is a property right and exceptions to it should be narrowly interpreted. That leaves users little space to react and turns copyright into a rigid absolute right lacking the necessary flexibility to adapt to realities as it is transformed by new developments and practices in the market arena. According to the authors this alienation of copyright is also due to the fact that the problems it sets are increasingly dealt with at a European level rather than a domestic one, without denying European involvement in the area as a whole.

Part Three forms the political part of the book. Burrell and Coleman present various models for reform (the previous chapters conclude that reform is needed), and at the same time present their vision—a user-friendly vision. They first explore whether a wise move would be towards the adoption of a US-style fair use defense which would allow for adequate flexibility in order to deal with evolving and changing situations. However, the authors do not consider this as an appropriate solution, since, according to their view, the problem is not solved with legislative changes but with a change in judicial attitudes. A solution which would combine the two (the introduction of fair use defence and a change in judicial attitudes) is not found to be either realistic or practical. They therefore argue that the best way forward is to exploit the opportunities set by the exceptions introduced by the EC Directive, supplemented by the introduction of a public interest defence. In the last chapter, Burrell and Coleman set out the four principles on which their model is based. The new system needs to be a) more flexible, b) workable, c) styled as a system of users’ rights and d) allow for more public participation. These characteristics are explored and described further into the final chapter.

The basic characteristic of the system which is proposed is that reform can take place at a domestic level without contradicting the aims of the European Community, and it can be done without fundamental or radical legislative changes. The ammunition offered by the EC Directive can be used to this end. This model of reform looks practical compared to supranational legislative changes where it is much more difficult to achieve the aimed balances, taking into account the relevant political and lobbying obstacles. However, it is a model of ‘inner reform’ which requires a change in attitudes, especially judicial attitudes, and requires a change of the approach which has been followed up to now by the various common law systems, particularly the British one. In other words it is claimed that, instead of changing the provision, one should change the way one looks at it. The truth, however, is that this is something which may take years to happen, if it ever happens. It is more likely to change a provision than an attitude, because provisions can form the subject of a particular legislative action whilst [*270] mentalities cannot form the subject of any action. They can only derive from a combined set of actions which have to be thoroughly considered and which again require changes in the mindset of people who deal with this area of law.

This book is very well written. It follows its argument cleverly from the start to the end and offers the reader frequent summaries of what was preceded. Burrell and Coleman select the most important issues and deal with them in depth. They explore most aspects of the problem – legal, social, political, and so on. The book is indeed a complete (even though not comprehensive since this exercise would require many more hundreds of pages) treatise in the area. It is also obvious that the authors have done a lot of research in the area. Another interesting point of this book is that it offers a fresh and unexpected approach to the subject. I cannot think of many who would approach the relevant EC Directive as a solution to the problem, especially after all the criticism it incurred in the area of exceptions. From this point of view, this book offers an optimistic approach to all who are active in the area of copyright law. COPYRIGHT EXCEPTIONS is one of those books in Europe (since outside Europe the discussion is more vivid on users’ rights) which present a voice in favour of users’ rights, a voice which is little heard in the lobbying arena.

One last minor point about the book is that the authors could have also discussed whether MAGILL and MAGILL-like cases could offer some help in relation to those copyright works whose use could be considered to form an essential facility for third parties in particular situations.

CASE REFERENCE:
RADIO TELEFIS EIREANN (RTE) AND INDEPENDENT TELEVISION PUBLICATIONS LTD. (ITP) v. COMMISSION OF THE EUROPEAN COMMUNITIES (MAGILL decision), European Court of Justice, C-241/91 P and C-242/91 P (1995).

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© Copyright 2006 by the author, Irini Stamatoudi.

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