THE REHNQUIST LEGACY

by Craig Bradley (ed). Cambridge and New York: Cambridge University Press. 2006. 414pp. Cloth $80.00/£45.00. ISBN: 0521859190. Paper $35.99/£19.99. ISBN: 0521683661.

Reviewed by Steven Puro, Department of Political Science, St. Louis University. Email: puro [at] slu.edu.

pp.520-523

Craig Bradley has edited a “legal biography” of Justice William Rehnquist. He served as a law clerk when Rehnquist was an Associate Justice of the US Supreme Court, worked as an attorney at the U.S. Department of Justice, and he is currently a Professor of Law at Indiana University Law School. The collection went to press in September, 2005, near the time of Rehnquist’s death. THE REHNQUIST LEGACY assesses the Justice’s constitutional legacy through uncovering his dominant doctrinal dimensions in several different areas of constitutional law. The essays emphasize Justice Rehnquist’s main Supreme Court majority and dissenting opinions in four major sections: The First Amendment, Criminal Procedure, The Structure of Government, and The Scope of Fourteenth Amendment Rights. The eighteen essays show his jurisprudence to be complex and multifaceted, and the findings support established scholarly ideas of Rehnquist’s legal approaches. Among those established ideas is his narrow interpretation of the Bill of Rights, his inclination to limit the national government’s power to impose constitutional demands via the Fourteenth Amendment, and to grant greater leeway for states’ authority in federalism relations.

Justice Rehnquist began his service on the U.S. Supreme Court in 1972 and assumed the position as Chief in 1986, with the nineteen years marking one of the longest periods for a Chief Justice in the Court’s history. In this edited volume, central questions include: are there shifts in Rehnquist’s legal approach and goals concerning major constitutional issues?; is there a clear Rehnquist legacy?; and what implications occur if his doctrinal paths are taken to their logical conclusions?

Bradley relies upon leading legal scholars, overwhelmingly professors of law who provide well organized and clearly written approaches. The contributors present a variety of ideological perspectives concerning legal and constitutional policies. The essays are extensively documented, drawing especially from Rehnquist’s opinions and law review articles. This approach is consistent with the design of the edited volume, and readers should not expect analysis of attitudinal, rational choice, or strategic models of an individual Justice or the Court. Many essays will be useful for teaching law and constitutional issues. In judicial decision making instruction and scholarship, legal doctrinal analysis concerns cycles of continuity and change. Scholars could use a combination of these essays to examine the evolution of Rehnquist’s legal doctrine in areas such as originalism, [*521] judicial restraint, or principled constitutional interpretation.

Most essays are informative with well-developed perspectives not usually found in standard legal or constitutional law texts. The authors emphasize Rehnquist’s strong consistency in his constitutional views. For example, throughout his tenure, he maintained a new approach to federalism issues by giving states’ broader latitude in disputes with the national government. Fresh perspectives on these matters are presented in Mark Tushnet’s chapter on Rehnquist’s development of federalism doctrine. Tushnet characterizes Rehnquist’s ideas as following three main paths: Congress cannot regulate states’ traditional government activities; Congress cannot command state legislatures or executives to implement national policies; and national power may not enter certain areas which are left for state regulation. In cases concerning state authority other than federalism matters, Rehnquist granted a broad role to states in policymaking and a diminishing role to courts in interfering with the judgment of state or national legislative decisions. In commerce clause cases, his regular position was to moderate Congress’ legislative authority and to expand state sovereignty. Several essays demonstrate how Rehnquist’s views developed from minority to majority opinions, as with the federalism issues noted above. There are also instances where he was unable to achieve a majority view, such as his reading of the Sixth Amendment and MIRANDA warnings.

In general, essays find that Rehnquist did not fundamentally alter his established constitutional principles – e.g., opposition to ROE v. WADE (1973)) in the area of reproductive liberty. Another key part of Rehnquist’s legal thinking was his view of judicial supremacy in constitutional interpretation based upon a doctrine of limited government when addressing expansion of congressional power. Dawn Johnsen argues that Rehnquist’s opposition to ROE “was less about abortion per se than about his views on federalism, individual rights, and the appropriate institutional role of the courts, his legacy depends on a more general assessment of how the Court protects individual liberty from government interference under the doctrine of substantive due process” (p.323). He gave limited judicial protection to individual rights not enumerated with great specificity in the Constitution. Further, Rehnquist was a strong advocate of limiting Congressional power under the fifth section of the Fourteenth Amendment to enforce constitutional rights.

Rehnquist’s legal legacy is characterized through his preferred policy outcomes based upon the dominant direction of his opinions. For example, Richard Garnett suggests how Rehnquist drew free speech lines in RUST v. SULLIVAN (1991) “between the government as regulator, as subsidizer, and as speaker” (p.33). The essays rarely address interesting questions concerning whether Rehnquist was constrained by precedent, stare decisis, when addressing legal issues where he held strong opinions. The book could have given further [*522] attention to how other Court members affected evolution of Rehnquist’s legal doctrine. The edited volume leaves us with anaysis of Rehnquist’s doctrines in specific areas of the law but rarely shows connections across legal areas. A summary categorization of his legal thinking is needed and could have been achieved in a concluding chapter.

Relationships between conservative politics, conservative political thought and judicial restraint have been an important part of legal discussion during the Rehnquist Court years (1986-2005). Rehnquist’s general view of relations between the judiciary and other national government departments is that appointed federal judges should not impose rules of conduct upon popularly elected branches. In this argument, there seems to be no consistent link between his philosophy of judicial deference and a justice’s maintenance of consistent judicial attitudes. Earl Maltz, in a chapter considering commercial speech, argues that, if a judge regularly defers to the decisions of other governmental branches, it is difficult to see how that judge can maintain his/her own judicial approach. To be consistent, Rehnquist and other conservative Court members often engaged in a form of judicial activism by taking the initiative to invalidate decisions by Congress and state governments.

This book advances scholarly understanding of distinct dimensions of Justice Rehnquist’s decisions, with each essay focusing mainly on a single doctrinal area. For example, in exploring his legal approach, Daniel Conkle shows that the Justice Rehnquist crafted “Establishment Clause doctrine that makes indirect funding programs almost invulnerable to constitutional challenge” (p.77). Bradley, in a separate essay concerning the Fourth Amendment, demonstrates that the Chief Justice consistently called for limiting the rights of individuals vis a’ vis the state, especially in areas allowing criminal defendants to use the Fourth Amendment to challenge use of evidence against them. Rehnquist was not able to move the Supreme Court to develop a body of Fourth and Sixth Amendment rules to overturn, respectively MAPP v. OHIO (1961) or MIRANDA v. ARIZONA (1966). In Fourth Amendment jurisprudence he regularly joined majority and minority opinions that limited its scope, and with regard to the Sixth Amendment, he conceded the importance of MIRANDA when he wrote for the majority in DICKERSON v. U.S. (2000). For those looking for a broader examination of interactions among Justices during the Rehnquist era, one might want to read Mark Tushnet’s recent book (2005).

THE REHNQUIST LEGACY provides a good review of Rehnquist’s doctrinal analysis and changes that have occurred during his thirty-three year tenure on the Supreme Court. The various essays emphasize the Justice’s constitutional tests, his interpretations of core constitutional ideas, and how he modified those tests over time in a range of legal areas, including those associated with the Fourth Amendment, Establishment Clause, and federalism questions. Law faculty and social scientists, law students and advanced undergraduate constitutional law [*523] students will learn about Rehnquist’s broad decisional patterns and complex variations. The collected essays could provide next steps or additional areas of research concerning Rehnquist’s decisions and their doctrinal dimensions.

REFERENCES:
Tushnet, Mark. 2005. A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW. New York: W.W. Norton.

CASE REFERENCES:
DICKERSON v. U.S., 530 U.S. 428 (2000).

MAPP v. OHIO, 367 U.S. 643 (1961).

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

ROE v. WADE, 410 U.S. 113 (1973).

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

© Copyright 2006 by the author, Steven Puro.

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FREE SPEECH AND DEMOCRACY IN ANCIENT ATHENS

by Arlene W. Saxonhouse. New York: Cambridge University Press, 2006. 246pp. Hardback. $70.00/£40.00. ISBN: 0521819857. eBook. $56.00. ISBN: 0511137915.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.

pp.517-519

Arlene Saxonhouse, a University of Michigan professor of Political Science and Women’s Studies, continues her research in ancient political thought and democracy in FREE SPEECH AND DEMOCRACY IN ANCIENT ATHENS. Her goal is to explore the democratic framework of government as a device for permitting free speech. Saxonhouse utilizes a variety of original documents to contrast the modern adaptation of free speech with that practiced in the self rule period of ancient Athens.

The text is divided into four parts, bordered by a Prologue and Conclusion. Part I includes the first two chapters. In Chapter 1, the works of Niccolo Machiavelli, John Milton, and John Locke on free speech are examined. The progression of the free speech clause in the American Bill of Rights is probed. Saxonhouse finds that the free speech designation was not a major issue in the debate for the amendment containing it. Further, the “separation of the people and its government, so much a part of our language today and so ingrained in our understanding of the freedoms affirmed in the Bill of Rights, has no place in the political culture of ancient Athens. The regime was the self rule of a democracy; it was not the liberal playing field of the individual protected by constitutional fences ensuring assorted rights claims against a potentially oppressive government” (p. 24). Chapter 2 presents the concept of democratic amnesia, or the replacement of a past-looking approach with a future-inspired framework. In doing this, the Athenian democratic regime removed the restraints of reverence, hierarchy, and aidos, shame, and replaced it with parrhesia, free speech.

Part II contains only Chapter 3. The intent here is to relate how shame inhibited unbridled speech and to differentiate shame from the concept of guilt. Part III encompasses two chapters. In Chapter 4, the practice of free speech in democratic Athens is highlighted. It should be noted that there were several exceptions to parrhesia in the Assembly. For example, noncitizens, debtors, those committing certain criminal acts, and those whose views were contrary to the well being of the city, were prohibited from speaking in the public forum. Chapter 5 details the trial of Socrates, the Greek philosopher who was executed for stating beliefs to his followers which were deemed threatening to the welfare of Athens.

Part IV covers the last three chapters. In Chapter 6, Saxonhouse discusses the limits on free speech in Athens imposed upon women and foreigners. Chapter 7 utilizes the writings of Thucydides, whose recordings of speeches in three democratic assemblies are presented. In [*518] each case, whether it be the Athenians’ debates over punishing the rebellious island of Mytilene or deciding to attack Sicily, or the Syracusans’ deliberation over whether they should prepare for an attack by the Athenians, the civic ideal of parrhesia falls short “when applied in the settings of democratic decision making”
(p.178). Chapter 8 transfers free speech from the political to the philosophical setting by examining the dialogues of Socrates and Protagoras, as told through the works of Plato. The juxtaposition of aidos with a questioning of the past still leads to a type of speech with boundaries on who could speak, when, and on the topics that could be discussed.

The Conclusion offers four paradoxes, partly as a parallel to the four stories found in the Prologue. The first paradox, between ancients and moderns, identifies the balance between free speech and order as a perpetual challenge for societies. The second paradox, between democracy and free speech, states that we need to heed the experience of the ancients so as not to practice speech without some limits. The third paradox, of Socratic philosophy and the democratic regime, declares that the location where speech is practiced can condition its use and effectiveness. Finally, the fourth paradox, that of shame and amnesia, reminds us that we can never escape speech possessing elements of both openness and reverence, even though eliminating the latter is the objective of a democratic regime.

Although the depth of examination of how free speech was practiced in an ancient community is unique to Saxonhouse’s study, other recent books have traced the history of free speech and probed its place in a democratic setting. Robert Hargreaves (2003) adopts a long-term perspective for investigating the subject. Juhani Rudanko (2003) employs fallacy theory to analyze American congressional debates over the Bill of Rights and the Sedition Act. Karla Gower (2002) scrutinizes the twentieth century development of free speech in the United States and Canada. Alternately, Cass Sunstein (1995) dissects disputes over free speech within a contemporary democratic framework. All except the Rudanko book devote more pages to the issues than the Saxonhouse text.

Saxonhouse offers much of interest to free speech scholars, but the book is not without some shortcomings. The organization of chapters is uneven. Further, the analysis of free speech in the American setting is brief, as only three Supreme Court cases are identified. While a complete coverage of cases is not expected, a more comprehensive overview of judicial decisions on free speech would have would have helped to elucidate understanding of its parameters. Finally, including the rules for speech by members of the U.S. Congress in their official capacity may have provided a fuller context with which to compare to the Athenian Assembly. Nonetheless, these areas of concern do not adversely affect the quality of Saxonhouse’s study. The material is meticulously researched and well presented. [*519]

The most obvious lesson we learn is that, regardless of the period in which it is practiced, free speech in a democracy is neither absolute nor arbitrarily inhibited. Instead, it is based on the combination of previous experience, present circumstances, and the characteristics of the polity.

REFERENCES:
Gower, Karla K. 2002. LIBERTY AND AUTHORITY IN FREE EXPRESSION LAW: THE UNITED STATES AND CANADA. New York: LFB Scholarly Publishing.

Hargreaves, Robert. 2003. THE FIRST FREEDOM: A HISTORY OF FREE SPEECH. Herndon, VA: Sutton Publishing.

Rudanko, Juhani. 2003. THE FORGING OF FREEDOM OF SPEECH. Lanham, MD: University Press of America.

Sunstein, Cass R. 1995. DEMOCRACY AND THE PROBLEM OF FREE SPEECH. New York: The Free Press.

© Copyright 2006 by the author, Samuel B. Hoff.

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LAW WITHOUT JUSTICE: WHY CRIMINAL LAW DOESN’T GIVE PEOPLE WHAT THEY DESERVE

by Paul H. Robinson and Michael T. Cahill. New York: Oxford University Press, 2006. 336pp. Hardback $35.00/£19.99. ISBN: 0-19-516015-0.

Reviewed by Samuel T. Morison, Office of the Pardon Attorney, U.S. Department of Justice. E-mail: stm5 [at] georgetown.edu.

pp.510-516

The debate concerning the moral justification for imposition of criminal liability and punishment seems to be perennially mired in the philosophical standoff between the deontological and consequentialist camps, with partisans on each side pointing out the relative theoretical shortcomings of the other. Those with a deontological sensibility are thus inclined to argue (quite rightly it seems to me) that a purely utilitarian conception of crime and punishment might easily be used to rationalize infliction of punishment, either too much or too little, without a due regard for moral fault of the offender, however difficult that metric is to determine as a practical matter. The consequentialists, in their turn, counter (also correctly I think) that the quixotic attempt to preserve of a kind of cosmic balance between desert and culpability, by itself, is hardly a sufficient reason to tolerate the substantial social costs incurred by infliction of state-sponsored punishment, even on those who arguably deserve to be punished in some fashion. As Michael Corrado (2001) remarks, borrowing a metaphor from Wittgenstein, the debate has come to resemble the proverbial “fly trapped in the fly-bottle. We have found our way in, and cannot find our way out.”

If I have read them correctly, Paul Robinson and Michael Cahill’s new book, LAW WITHOUT JUSTICE, constitutes the latest attempt to break out of this particular conceptual muddle, though not, I suspect, in a way that will ultimately prove satisfactory to anyone with an intellectual stake in the debate. For the authors’ ambition is nothing less than to reconcile the deontological and consequentialist viewpoints, or at least to render the disagreement between them irrelevant, by advancing the empirical claim that the criminal justice system can most effectively facilitate the goal of inducing voluntary compliance with law, the purported objective of utilitarian-based theories, only to the extent that both doctrine and practice accurately reflect popularly held intuitions about the scope and limits of deserved punishment. By adopting this strategy, they hope to “obviate, as a practical matter, the deeper philosophical debate about whether these other commitments should trump desert. . . . Where it is possible to achieve the competing goal without deviating from desert . . . the unfortunate tradeoff can be avoided altogether” (p.18).

Given the intractable nature of the debate, this is a tall order, to put it mildly. In an effort to make good on the argument, the authors begin, perhaps inevitably in discussions of this sort, with the assumption that the legal system generally, and the machinery of the criminal justice system in particular, is driven by a single overarching goal or [*511] purpose, namely to see to it so far as humanly possible that “people get what they deserve,” no more and no less, in response to their actions. The pursuit of a backward-looking conception of justice in which desert is given pride of place in the assignment of liability and punishment, they contend, is “a fundamental reason (and perhaps the reason) that we have a legal system at all” (p.3), rather than any fear of the untoward social consequences that might ensue if we failed to consistently enforce established legal conventions.

This is certainly not meant to suggest that the standard utilitarian justifications of punishment — minimizing the incidence of criminal behavior through deterrence, incapacitation and rehabilitation — are not also worthy social goals. But the authors insist that such considerations, by themselves, do not constitute “freestanding justifications for having a criminal-justice system in the first place” (p.16). This proposition is put forward, moreover, as an empirical observation about the existing state of the law, rather than an inherently contestable normative assertion about the shape it ought to take. “[T]he overall contours of criminal-law doctrine,” they write, “make clear that the commonly shared intuition [about desert] is essentially accurate as a descriptive matter. That is, criminal law does typically try to do ‘justice,’ just as people want it to do” (pp.16-17).

Robinson and Cahill further contend that it is this unique feature of criminal law, namely “its ability to bring moral condemnation to bear” by stigmatizing the conduct of blameworthy offenders, that chiefly serves to distinguish the criminal justice enterprise from the imposition of “tort liability (or some other civil or private-law mechanism) to redress wrongful behavior” (pp.113, 16). From this perspective, doctrinal departures from an individualized conception of the desert principle — such as the imposition of strict liability for statutory rape despite the actual reasonableness of a particular defendant’s mistaken belief that the victim was above the age of majority — are problematic in terms of securing voluntary compliance, because they undermine “the very moral credibility that gives [criminal law] the normative force to influence people’s values and behavior” (p.113).

Hence, they argue that preserving “the criminal law’s moral credibility” by minimizing such deviations is “essential to effective crime control,” because the system relies crucially on the public’s perception that the law accurately reflects widely shared views of “appropriate prudential and moral behavior” (p.16). Conversely, the “greater the criminal-justice system’s deviation from [this conception of] desert, the more it undermines its own moral credibility with the community it governs and the less influence it will have in shaping community norms and in gaining cooperation and acquiescence in it operations” (p.128).

As the authors are keenly aware, of course, the criminal law is also rife with doctrines imposing relatively bright-line rules that deliberately depart in one way or another from a purely desert-based approach. The bulk of the book is thus [*512] devoted to a wide-ranging survey of such “deviation rules,” and explores the extent to which they should be revised to more closely track deep-seated beliefs about deserved punishment. Given the asserted normative priority of the desert principle, they contend that the “central questions that should drive the debate . . . are empirical and not normative,” namely the extent to which the “system would come closer to maximizing deserved punishment” with or without the rules in question (p.84). And, as one might expect from a couple of law professors, the abstract discussion is effectively punctuated with the examination of actual cases that usefully illustrate how the deviation rules operate in practice.

The deviation rules fall into two broad categories. Chapters 2-4 examine various substantive and procedural rules that accept, in principle, the normative priority of desert, but that “depart from the abstract demands of justice” for pragmatic reasons having to do with the real world implementation of the system (p.8). This category includes “the limitation or rejection of various exculpatory defenses or mitigation rules,” such as a reasonable mistake of fact or law, which is motivated by a concern that guilty defendants might otherwise manipulate the system to achieve unjust acquittals; the use of statutes of limitation and strict liability, which respond to concerns about human error and the inherent unreliability of evidence; and practices such as plea bargaining and witness immunity, “which are predicated on the claim that, given constraints on available time, resources, and fact-seeking capacities, the system can maximize justice overall by making compromises in individual cases” (p.26).

By contrast, Chapters 5-8 examine various rules that deliberately generate departures from the pursuit of desert and thus “reflect a decision, whether conscious or inadvertent, to sacrifice the interests of justice to advance some other goal” (p.8). This category includes the criminal law’s insistence on “clear, fixed, ex ante rules defining the conduct it prohibits,” which may be both over and under-inclusive, imposing underserved liability when “a blameless offender is punished” in order to vindicate “the clarity of the prohibition,” but precluding liability for certain immoral acts that “do not fall within any clearly established . . . prohibition;” the use of sentencing rules that increase penalties for repeat offenders, which may inflict “more liability than is deserved;” procedural devices, such as the exclusionary rule, that seek to preserve the fairness of the system “by imposing restraints on police and prosecutors to curb government misconduct,” thereby frustrating the imposition of deserved punishment; and the use of certain rules that “promote interests completely external to the criminal-justice system,” such as diplomatic immunity and the criminalization of regulatory violations (p.88).

Finally, Chapters 9-10 reiterate the authors’ agenda for reform, which aims “to eliminate, or at least reduce, the current system’s deviations from the desert principle.” The reforms likewise fall into two categories. The first set of [*513] reforms would involve changes internal to the criminal justice system, such as relaxing the artificiality of bright-line deviation rules by “shifting the burden of persuasion to the defendant” to prove facts that mitigate moral fault, and a more nuanced verdict system, “which could effectively condemn a defendant’s conduct while exculpating” him in appropriate circumstances, thereby preserving the law’s moral integrity without imposing undeserved punishment (p.9).

The second set of reforms would involve changes external to the criminal justice system, such as the use of civil remedies as a “means of dealing with official violations of rights [rather] than the current method of excluding reliable evidence in criminal proceedings,” the creation of “a distinct civil system . . . to impose liability for minor administrative violations and corporate wrongdoing,” and openly embracing a “system of post-criminal term civil commitment” for dangerous offenders (p.9).

Though many of these proposed reforms strike me as both sensible and humane, particularly if they can be implemented without a concomitant loss in deterrence, the theoretical basis of the argument remains unconvincing for several reasons. To begin with, Robinson and Cahill readily acknowledge that “various rights and protections . . . enshrined in the Constitution” are specifically designed “to prevent abusive or improper law enforcement or prosecution,” even though they also plainly frustrate the goal of giving the guilty the punishment they arguably deserve, which, they say, sets up a “tradeoff between individual liberty and substantively accurate results” (p.138).

But surely the constitutional concern for individual liberty is not merely a competing interest, on a par with, much less subordinate to, the desert principle. To the contrary, I would argue that the centrality to our political culture of such constitutional norms completely undermines the notion that the desert principle enjoys normative priority in governing the exercise of state power, punishment being the paradigmatic manifestation thereof. According to this view, the practice of punishment is rationally justified, if at all, as a mechanism for securing the rule of law, which is to say, a cooperative social venture in which each citizen’s right to act freely for his or her own purposes is protected from illegitimate interference, consistent with the comparable freedom of everyone else. In order to be morally justified, of course, the state’s treatment of an offender must meet several additional constraints, including satisfying the requirements of proportionality and equality. However, the purpose in virtue for which we establish criminal laws in the first place is certainly not to ensure that offenders get exactly what they deserve, whatever that is, but to instantiate (however imperfectly) the ideal of individual liberty within the rule of law. If this is a correct characterization of the American constitutional tradition, the infliction of punishment is a means, not an end, and the imperative concern to maximize the desert principle thus seems misplaced.

Furthermore, as we have seen, Robinson’s and Cahill’s program for [*514] penal reform is heavily dependent upon on a positive psychological claim, namely that popular intuitions about desert have, at a minimum, a fairly determinate and readily accessible content, which, in turn, is the ground of the law’s legitimacy and thus ought to inform legislative code drafters. Hence, the authors maintain, apparently on the basis of opinion surveys, focus group research and the like, that “laypersons generally . . . assume that criminal liability and punishment should depend upon a person’s moral blameworthiness” (p.4, n.6), and, more strikingly, that “nearly all of the time, nearly all of us would be in rough agreement about what it means to give a particular defendant what she deserves” (p.15). More specifically, they assert, inter alia, that “shared intuitions” support a relaxation of the insanity defense where the defendant could not reasonably control his behavior (p.41), that “most people share the view” that the provocation defense should be based on a subjective evaluation of what was reasonable to expect from the defendant under the circumstances (p.48), and that it “clearly conflicts with lay perceptions of justice” to punish attempts as harshly as completed crimes (p.134).

These claims are difficult to adjudicate, since the validity of this type of research depends upon a host of issues that are not specified in the text. As always, the devil is in the details. In any event, while Robinson and Cahill suggest that their approach has a certain democratic pedigree (p.21), this completely elides the fact that, constitutional rights aside, all of the substantive doctrines to which they object have been almost uniformly adopted in the large majority of American jurisdictions, and there is no good reason to believe that legislators are systematically mistaken about public sentiments concerning these issues. Indeed, the primary cause of the democratic tendency toward over-criminalization, which Philip Pettit (2002) has aptly termed the “outrage dynamic,” is precisely that legislators are arguably too responsive to public demands regarding penal policy, which need not necessarily “serve any instrumental purpose, so long as it effectively decries the deed and denounces the doer.”

For these reasons, it is difficult to credit the suggestion that such legislative judgments somehow fail to reflect accurately the average layman’s view, however partial or exaggerated, about the demands of retributive justice. Robinson and Cahill assert, for example, that recidivist statutes and sentencing guidelines that provide increased penalties for repeat offenders constitute “a system of cloaked preventative detention” that makes no pretense of “imposing just punishment for specified crimes” (pp.11, 4), but this is simply not true. In fact, I am not aware of any contemporary sentencing statute that stipulates a single, comprehensive rationale to justify its provisions. The Federal Sentencing Guidelines, which are typical in this regard, provide that, in addition to serving the goals of deterrence and rehabilitation, “[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” Likewise, the California three strikes law, which the authors [*515] admit enjoys widespread public support (p.4), provides that “[i]t is the intent of the Legislature in enacting [the statute] to ensure longer prison sentences and greater punishment” for repeat felony offenders, thereby incorporating both utilitarian and retributive justifications.

The debate would thus seem to turn, as the authors evidently concede (p.135), on the specific range of punishment to which repeat offenders are exposed. That is also a legitimate policy debate, to be sure, and while I am sympathetic to the claim that strict mandatory sentences often generate counterproductive and unjust results, that is quite different from saying that popular notions of desert fail to sanction the use of sharply increased penalties for repeat offenders, even for a series of relatively minor, non-violent property or drug crimes.

Finally, as Kyron Huigens (2000) has acutely observed (in reference to an earlier version of the same thesis co-authored by Robinson), the argumentative strategy is defective in any event, because it “implies that the criminal law operates under a pretense that its claims about fault are meaningful, with a wink and a nod to consequentialist theorists and a legal elite who know better. We do not impose criminal liability up to the logical limits of the consequentialist rationale because to do so would risk a popular backlash, but the criminal law, properly speaking, is agnostic about the moral intuitions that would drive this popular backlash.” This objection suggests that the integrity of the law is not dependent upon whether it happens to coincide with widespread intuitions about desert, as Robinson and Cahill would have it, but rather on the extent to which it is consistent with principled moral reasoning about the legitimate scope and limits of liability and punishment. Although it is perhaps a truism that some degree of public acquiescence is a necessary condition for the stability of any legal system, if popular attitudes conflict with our considered moral judgments and political ideals, the pedagogical responsibility of scholars and reform advocates is to attempt to persuade people to change their minds.

In this regard, moreover, an opinion poll is hardly a straightforward expression of the sensus communis, the impartial standpoint from which the rational evaluation of social norms is possible. After all, until fairly recently, a majority of the American electorate would have approved of the legal enforcement of a parochial conception of sexual morality. Nevertheless, in one of its rare forays into substantive criminal law, the Supreme Court has largely resisted this impulse on equal protection and substantive due process grounds, most recently in LAWRENCE v. TEXAS (2003), which, as everyone knows, struck down a criminal statute targeting homosexual sodomy. To the same effect, Huigens quotes H.L.A. Hart’s (1968) riposte to the idea that public opinion subtends the criminal law: “we do not dissociate ourselves from the principle that it is wrong to punish the hopelessly insane or those who act unintentionally, etc., by treating it as something merely embodied in popular mores to which concessions must be made sometimes. We condemn legal [*516] systems where they disregard this principle; whereas we try to educate people out of their preference for savage penalties even if we might in extreme cases of threatened disorder concede them.”

Indeed, Robinson and Cahill themselves remark, tellingly, that “[l]egal reform can be effective only as part of a larger agenda of education and societal awareness, including the public expression of disapproval by institutions other than the criminal-justice system. Criminal-law reform cannot be a substitute for public discussion, educational campaigns, and institutional programs” (pp.113-114). I quite agree, but then the effort to sidestep the normative debate over the justification of the criminal law is largely beside the point, since we are invariably in the position of having to decide whether our moral intuitions are rationally justified, all things considered, and thus worthy of being embedded in the penal code.

REFERENCES:
Corrado, Michael L. 2001. “The Abolition of Punishment.” 35 SUFFOLK UNIVERSITY LAW REVIEW 257-276.

Hart, H.L.A. 1968. PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW. New York: Oxford University Press.

Huigens, Kyron. 2000. “The Dead End of Deterrence, and Beyond.” 41 WILLIAM & MARY LAW REVIEW 943-1036.

Pettit, Philip. 2002. “Is Criminal Justice Politically Feasible?” 5 BUFFALO CRIMINAL LAW REVIEW 427-450.

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

© Copyright 2006 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.

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AMERICAN CONSTITUTIONAL LAW: INTRODUCTORY ESSAYS AND SELECTED CASES (14th ed)

by Alpheus Thomas Mason and Donald Grier Stephenson, Jr. Pearson/Prentice Hall, 2005. 744pp. Cloth. $105.20. ISBN: 0-13-117437-1.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.

pp.508-509

Professors are forever searching for the most updated texts and related materials for courses that are reliable and easily accessible; book publishers are forever seeking to supply them. Supply and Demand – the joys of the market. But perhaps like many colleagues all over the country, I plead guilty to the crime of “brand loyalty:” once I find a good, solid, and durable text from a publisher that I like, I stick with it through many editions until either a new one is no longer issued or some other publishing rep peels me away with a better product. Until that moment arrives, my rep usually knows whom to call when the latest edition of my standard texts come out.

I have taught Constitutional Law courses for nearly 10 years. Finding a text in this field which students will not find as dry as dirt is a task in and of itself. In that time, I have gone through about three or four updated editions of Mason’s and Stephenson’s AMERICAN CONSTITUTIONAL LAW: INTRODUCTORY ESSAYS AND SELECTED CASES. But the text has a longer more illustrious history. The first edition appeared in 1954 – the same year BROWN v. BOARD OF EDUCATION was decided. The Fourteenth Edition was released just after its fiftieth anniversary. To put it bluntly and rather crudely, this is a good product for any professor who is teaching introductory courses on the American legal system. It is accessible, thorough, unique in its approach, and timely given the updated material in the concluding chapter on freedom and security during wartime.

The text covers the waterfront of the American legal system in all of its basics: judicial review, organization of the court system, federalism, separation of powers, elections, commerce, criminal justice, property rights, the Bill of Rights, equal protection, and so on. In that sense, the text is solid. Yet what makes AMERICAN CONSTITUTIONAL LAW unique is the way the authors approach the subject matter. They mercifully refrain from overwhelming readers with long and lengthy chapters – or rather, long and lengthy discourses before the relevant cases are presented. This is why Mason and Stephenson subtitle the text “introductory essays and selected cases.” The background and contextual material in each chapter rarely exceeds 15 pages. The facts and nothing but the bare bone facts are presented before the selected cases are brought forth.

This frees up a good deal of space in each chapter for a wide variety of excerpted cases that address different aspects of the issue in question. For example, in Chapter Fourteen on Equal [*509] Protection, the authors delve into no less than six aspects of equal protection – suspect classification, racial discrimination, state action, gender discrimination, affirmative action, and cases dealing with an analysis of fundamental rights. The “essay” part of the chapter is roughly fifteen pages; the “selected cases” section barely twice that. In short, the chapters are manageable for undergraduate students who may be coming at this material for the very first time.

The text is framed nicely by the introductory and concluding chapters. The former is titled “A Political Supreme Court;” the latter “Security and Freedom in Wartime.” The thread that runs from beginning to end is not necessarily a new revelation, but in these times worth remembering: the courts are never divorced from politics no matter how hard they try. Not when George Washington was making his nominations to the first Supreme Court, and certainly not when the Court was deciding HAMDI amidst the Bush Administration’s pursuit of the war on terror in 2003.

HAMDI is addressed in the last chapter on freedom and security in wartime. The authors frame the argument within a discussion of the fragility of civil liberties and the USA PATRIOT Act. In a way, the chapter loops back and pulls together much of the material contained in previous chapters – issues of civil liberties, right to privacy, the power of the executive vis-à-vis the Congress and the American public, equal protection of the laws, and so on. And yet, underneath all of this lies the core unifying principle Mason and Stephenson seek to advance, which is to say that no matter how hard the courts try to divorce themselves from the political world, they consistently find themselves at the center of it.

For students, this is a lesson worth learning. Professors of political science teaching constitutional law who seek to convey this message will find AMERICAN CONSTITUTIONAL LAW a trusted companion.

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

HAMDI v. RUMSFELD, 124 S.CT. 2633 (2004).

© Copyright 2006 by the author, Christopher Malone.

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RAPE WORK: VICTIMS, GENDER, AND EMOTIONS IN ORGANIZATION AND COMMUNITY CONTEXT

by Patricia Yancey Martin. New York: Routledge, 2005. 296pp. Hardcover. $125.00/£70.00. ISBN: 0415927749. Paper $29.95/£16.99. ISBN: 0-415-92775-7.

Reviewed by Sally J. Kenney, Humphrey Institute of Public Affairs, University of Minnesota. Email: kenne030 [at] umn.edu.

pp.503-507

Patricia Yancey Martin’s book brings the lenses of organizational sociology and the sociology of work to the question why society’s representatives continue to commit a “second assault” of rape victims as they go about their jobs more than twenty-five years after feminist activists documented this wrong and developed policies to remedy it. The book is chockablock with examples, from hospitals who refer to the victim as “the rape” and make her wait for hours in public waiting areas, to billing rape victims for the rape exam. The answer: their organizations require it. Martin’s work supplements cultural explanations of misogyny, sexism, or patriarchy with a structural analysis of how three different types of organizations respond to rape victims: the hospitals and medical personnel who conduct the forensic rape exam, the criminal justice system, including police officers, prosecutors, and judges, and the staff of rape crisis centers. Rather than examining what she labels rape work in isolation, or as part of a social movement, Martin situates it instead in its organizational context. Rape work—responding to a victim’s charge of rape, pursuing and punishing rapists, and educating society to prevent rape—takes different forms and is done by men and women in different organizational structures.

As we might expect of the co-editor of FEMINIST ORGANIZATIONS: HARVEST OF THE NEW WOMEN’S MOVEMENT, Martin invites us to go beyond the question of whether hierarchical organizations rather than collectives can be feminist, or whether feminists are irretrievably co-opted through engagement with the state. She dives into the messy empirical business of assessing the progress, obstacles, hidden successes, and failures of feminist organizations engaged in the day-to-day work of serving rape victims and making mainstreaming organizations deal with rape victims humanely while they seek to eradicate rape. For this task she is extremely well suited. As a sociologist of gender, she has been a pioneering scholar in studying and theorizing feminist organizations. As an engaged scholar and committed activist, she has been an active participant in the anti-rape movement since 1983, primarily, but not exclusively, in Florida. RAPE WORK, however, is neither the reflections of a participant-observer nor a selection of anecdotes of a small case study; rather, it brings all the rigor of quantitative sociology to the questions at hand, gathering and assessing evidence, weighing and analyzing possible explanations. Martin has interviewed rape workers. She has observed rape trials and interviewed judges, defense [*504] attorneys, prosecutors, and victim-advocates. She has conducted a fifty-state survey of rape crisis centers. And she has collected technical reports and statistics from researchers and state agencies that work on rape.

There are a number of surprises and interesting findings. Law enforcement officers, with the exception of a few Florida sheriffs, come off rather well. They are less villainous than feminists found them to be in the past. Doctors come off badly. While the women who work in rape crisis centers have feminist consciousness, in other organizational contexts—emergency rooms or police stations—Martin does not find gender predictive of whether one adopts a feminist approach to rape work. Such a finding shows the power of her organizational approach. Just as Rosabeth Moss Kanter argued in 1977, organizational context, rather than essential race or gender characteristics, explained behavior. Many police, despite having conservative attitudes toward gender roles, recognize the violation of rape as a crime. They are closer to victims than prosecutors and judges, focused on “making the case” or ensuring the rights of the accused. Medical personnel are so blinded by their organizational context dedicated to healing the sick and injured, rather than the “merely” traumatized, and are so averse to having to testify in court that these organizational imperatives trump any compassion one might expect from the healing profession and eviscerate basic human compassion. Only rape crisis workers can place top priority on serving victims rather than “building a case” or “healing the sick.”

Rape crisis centers (RCCs) are what Martin calls “unobtrusive mobilizers.” In the early days, RCCs had a contentious relationship with police and hospital employees whom they frequently publicly criticized. Given their core task of obtaining services for victims, however, trashing the others who did rape work was immediately apparent as counterproductive, and RCCs devote considerable effort to maintaining a good relationship with all in the cause of better service for victims. Working behind the scenes means they help give credit to others for policies they initiated and made happen, making it difficult to document their own contributions. Martin rejects a commonplace view that RCCs have been co-opted by working as system insiders, and she was also surprised to discover that, contrary to the assumption that they have abandoned their political work in favor of service delivery, they still identify political work—community education—as their single most important task (p.43). Freestanding RCCs do more political work than those imbedded in hospitals, legal justice organizations, or colleges and universities. RCCs see more victims than criminal justice personnel or medical staff. Given the poor record of prosecutions, could anyone in good conscience insist that a victim report the crime and press for prosecution? It seems obvious that low levels of reporting and low levels of prosecution create a vicious circle. The mission, “all we do comes from victims,” is to transform a rape culture, a much different frame from the other institutions who do rape work. Most rape crisis center workers are white, and [*505] many women of color see them as providing services for white women. Nevertheless, some rape crisis centers have focused on women of color and a handful have deliberately transformed themselves to take on anti-racism work.

Much has improved since second-wave feminists placed the mistreatment of rape victims on the public agenda, led by the women who created rape crisis centers (Bevacqua 2000). A movement to place rape exam “kits” in all emergency rooms and to train medical personal, especially sexually assault nurse examiners (SANE), to conduct rape exams rather than doctors who do not want to do them has been a success. Creating Sexual Assault Response Teams, multidisciplinary teams that coordinate rape work on behalf of victims and allow prosecutors to specialize and build up expertise, dramatically increase the effectiveness of police and prosecutors. Victim-advocates, funded by the Violence Against Women Act, like rape crisis workers, decrease the likelihood that victims will be mistreated. Lastly, feminists have succeeded in changing many public policies, such as the requirement that victims physically resist, the requirement that others corroborate their testimony, the charge to jurors that rape victims are likely to lie, and the practice of questioning victims about their prior sexual history and dress. Despite these successes, feminists feel only limited progress has been made in the treatment of rape victims—judges, medical personnel, defense attorneys, prosecutors, and police can still treat rape victims with contempt—and almost no progress has been made in ending rape altogether, even if women may now be more likely to report it.

In addition to calling for a shift in a simple condemnation of misogynistic practices and viewing these behaviors through an organizational lens, Martin calls upon organizations to “own rape work.” Owning rape means not trying to avoid rape work, or shunt it off on low-status workers, or defining it as women’s work. It means validating and comforting victims and bringing rapists to justice. It calls for training and most importantly, on-going rather than one-time training, not conditioning it on the presence of one enthusiastic employee.

The payoff of the large study as opposed to the single case study is that it displays the variation and offers the possibility of explaining it. Police and sheriffs departments differ significantly in how they treat rape victims despite identical missions. Hospitals and prosecutors, too, varied enormously. And the differences mattered to victims. Martin persuasively argues that only a system that has coordination among all who do rape work effectively serves victims. Rather than being co-opted by working within the system, RCCs can serve as the glue that ties rape workers together in an effective network. Martin’s study uniquely focuses on the system of rape work and shows why it matters if the police do not want to work with RCCs or if hospitals and police and prosecutors do not have productive functioning relationships. Responsiveness is not the same as centralization, Martin finds. However much these community networks determine the effectiveness of [*506] dealing with rape victims, they seem to matter little to the incidence of rape itself.

Although mixed-gender organizations often relegated rape work to women, they did not necessarily do it better than men; some men doing rape work had a feminist orientation, some women did not. (“Rape is the most highly cross-gendered felony crime [other than stalking] with men offending and women their targets” (p.25)). Many women, such as women jurors, judge rape victims harshly. Martin concludes that how victims are treated is more important than the gender of the person who processes them (p.169). As one might expect of an organizational sociologist who has focused on feminist social movements, Martin calls special attention to the emotional demands of rape work. Interacting with rape victims compassionately means taking on board their pain and injury. Prosecuting rapists means watching many go free as legal institutions “settle cheap.” Rape work leads to burnout, and thus organizations often rotate the work which diminishes the opportunities for developing skills and expertise. Emotional labor can entail expressing a compassion one does not feel or suppressing distress in order to fulfill a role. Rape workers may not only feel distress but anger at rape victims who do not cooperate with what they want them to do, or who make emotional demands on them.

If I had to offer a criticism of the book, it would be that Martin repeats herself, making the organizational point again and again (probably an asset in a teaching text), where I might have preferred simply to make points in the conclusion, introduction, and in the relevant part of the text. Moreover, the social scientific approach leaves less room for the voices of victims or the people who do rape work to really come through—I was left still curious about the people and organizations who do this work and wanting to know more about them as individuals and organizations.

I taught this book with much success in my graduate course on women, law, and public policy, but it would have fit equally as a compliment to James Q. Wilson’s book, BUREAUCRACY, in my course on the politics of public affairs. Placing rape work in an organizational context is a huge conceptual leap forward, not just for organizational sociology (showing why it is difficult to get the different institutions to cooperate with one another), but feminist sociology (understanding the difficulties of rape crisis centers). Understanding frames, rules, core tasks, and organizational missions illuminates both. Martin artfully combines the sophistication of a gender theorist, the social scientific expertise of an organizational sociologist, and the passion of an experienced and reflective activist.

REFERENCES:
Bevacqua, Maria. 2000. RAPE ON THE PUBLIC AGENDA: FEMINISM AND THE POLITICS OF SEXUAL ASSAULT. Boston: Northeastern University Press. [*507]

Ferree, Myra Marx, and Patricia Yancey Martin (eds). 1995. FEMINIST ORGANIZATIONS: HARVEST OF THE NEW WOMEN’S MOVEMENT. Boston: Temple University Press.

Kanter, Rosabeth Moss. 1977. MEN AND WOMEN OF THE CORPORATION. New York: Basic Books.

Wilson, James Q. 1989. BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT. New York: Basic Books.

© Copyright 2006 by the author, Sally J. Kenney.

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GOVERNING WITH THE CHARTER: LEGISLATIVE AND JUDICIAL ACTIVISM AND FRAMERS’ INTENT

by James B. Kelly. Vancouver: University of British Columbia Press, 2005. 336 pp. Hardcover. $85.00. ISBN: 0-7748-1211-7. Paper $29.95. ISBN: 0-7748-1212-5.

Reviewed by David L. Weiden, Department of Politics and Government, Illinois State University. Email: dweiden [at] ilstu.edu.

pp.500-502

In GOVERNING WITH THE CHARTER, James B. Kelly has issued a major statement – perhaps the major statement to date – on the relationship between parliamentary democracy, the courts, and the Charter of Rights and Freedoms in Canada. This book will be required reading for those interested in the Canadian political process; however, there is also much to consider for the general legal scholar. For starters, Kelly challenges the court-centered view of judicial activism and develops a theory of legislative activism, which he argues is now the dominant mode of rights protection in Canada. Indeed, Kelly takes direct aim at the “support structure” thesis propounded in Charles Epp’s influential book, THE RIGHTS REVOLUTION (1998), asserting that the support structure model ignores the political and bureaucratic aspects of rights activism in parliamentary systems. Thus, GOVERNING WITH THE CHARTER is both a defense of the Supreme Court’s role in Charter jurisprudence as well as an articulation of a general theory of Canadian rights activism.

Kelly’s thesis is that criticisms of the judicial activism of the Canadian Supreme Court are misplaced, because the Court is not the dominant actor in Canada’s post-Charter political system. Indeed, Kelly contends that coordinate constitutionalism, wherein each political branch interprets the Charter on its own, is now the principal model of Canadian constitutional politics. According to Kelly, coordinate constitutionalism serves to strengthen, not weaken, Canadian democracy, as multiple forms of rights protection co-exist. Thus, the judiciary, executive and parliament each govern with the Charter by exercising scrutiny of legislation and ensuring that the framers’ intentions are protected. So, judicial activism coexists with legislative activism and bureaucratic activism in the modern Canadian democratic system. Kelly shows, in meticulous detail, the operation of bureaucratic activism through “legal services units” within the Department of Justice and how they screen draft legislation for Charter compliance. This form of Charter vetting has served to expand greatly the power and influence of the cabinet; paradoxically, though, this elevation of the cabinet has served to weaken Parliament’s role with potentially detrimental effects for Canada.

The book has many strengths, including a triangulated research methodology. The volume blends interpretive, historical, and doctrinal analysis with a significant qualitative component, in the form of extensive interviews with [*501] members of parliament, provincial officials, various public servants and former Prime Minister Pierre Trudeau. The first third of the book sets out the general theory, and also provides an historical and critical account of the constitutional politics surrounding adoption of the Charter. This historical account is important for the purposes of defining the framers’ intent; Kelly asserts that the framers desired a decidedly activist document – one that encompassed judicial review of the Charter’s protections, in tandem with legislative and bureaucratic rights activism. The second third of the book examines judicial activism in more detail, arguing that, in regards to criminal procedure cases, the Court has ruled moderately, protecting the rights of the accused and of society, by adopting a modified jurisprudential crime control model. The following chapter analyses judicial activism in civil cases; Kelly contends that the Court’s activism is not problematic because the statutes struck down were primarily those enacted or amended before adoption of the Charter (and the concurrent Charter vetting process). The final third of the book details the theory of legislative activism and the new cabinet-centered process of rights protection, with an emphasis on federalism issues. Kelly notes that the values of federalism are safeguarded by coordinate constitutionalism and multiple rights activism: “Coordinate constitutionalism has a deeper significance, therefore, as legislative activism acts as a bulwark against judicial encroachment on provincial autonomy” (p.182).

For this reviewer, the weakest part of the book is the chapter on judicial activism in non-criminal cases. Kelly’s argument rests upon the claim that the Supreme Court generally only strikes down statutes that were enacted or last amended before introduction of the Charter; thus, the Court is not making a discretionary policy decision but only invalidating legislation introduced during a different constitutional regime. The difficulty with this argument is that Kelly does not provide enough information to evaluate this claim fully. He notes that 64 statutes have been invalidated by the Court in the period from 1982 to 2003 and that 31% of those statutes were enacted between 1970 and 1982. Furthermore, only 12 statutes enacted after 1990 have been struck down by the Court. However, Kelly only provides a table listing the 64 activist cases and another table showing simple percentages for statutes ruled constitutional and unconstitutional in the period, 1982-2003. A table disaggregating the constitutional and unconstitutional statutes into two time periods – 1982 to 1990 and 1991 to 2003 – with percentages for each of those periods would be informative. Better yet, the use of inferential, rather than descriptive, statistical techniques would allow greater confidence in the assertion that the Court generally invalidates only statutes enacted in the pre-Charter regime.

On the other hand, in the same chapter, Kelly makes the compelling point that the Supreme Court has been increasingly likely to use the judicial remedy of suspending declarations of invalidity in Charter cases, rather than simply [*502] nullifying unconstitutional laws. The author notes that suspended remedies, rather than nullifications, show the Court’s commitment to coordinate constitutionalism because these suspensions allow an invalidated statute to be amended and brought into constitutional compliance. Here, Kelly does provide a table dividing Charter cases into two periods, 1982-1992 and 1993-2003. The data show that, from 1982 to 1992, nullifications accounted for 80.60% of Charter cases and suspensions accounted for 6.45%. But, in the period from 1993 to 2003, nullifications accounted for only 33.30% of Charter cases and suspensions increased to 33.30% of cases. Kelly also notes in the text that, since 1997, suspended decisions have increased to 42% of cases. His point regarding the changing nature of judicial remedies at the Court is well taken and one that is usually overlooked by commentators on judicial activism.

GOVERNING WITH THE CHARTER offers a number of challenging insights into the new era of Canadian politics. The theory of multiple rights activism, the historical analysis of framers’ intent, the reconceptualization of judicial activism, and the normative implications for the future of Canadian politics all make this a most satisfying volume for the scholar of Canadian law, as well as for the general comparative courts researcher.

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

© Copyright 2006 by the author, David L. Weiden.

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THE TORTURE DEBATE IN AMERICA

by Karen J Greenberg (ed). New York: Cambridge University Press, 2006. 432pp. Hardback. $50.00/£30.00. ISBN: 0521857929. Paperback. $18.99/£12.99. ISBN: 0521674611. eBook. $15.00. ISBN: 0511138385.

Reviewed by Andrew Goldsmith, School of Law, Flinders University, Adelaide, Australia. Email: andrew.goldsmith [at] flinders.edu.au

pp.496-499

This volume of essays and materials follows on from an earlier publication, THE TORTURE PAPERS, edited by Karen Greenberg and Joshua Dratel (2005). In light of the earlier book, this volume attempts to capture and reflect the range of public debates and perspectives upon the issue of torture that the disclosure of, and ready access to, internal government memoranda relating to the use of torture and other coercive methods of interrogation in the Global War on Terror (GWOT) has helped to facilitate. While not exclusively so, the contributors to the volume are mainly lawyers, both practicing and university-based; some of them have served in government positions prior to or during the GWOT; others have had the opportunity to reflect upon certain issues from their positions in different universities. The book emerges under the auspices of New York University Law School’s Center on Law and Security – a number of the Law School’s staff is represented in the collection. The general lawyerly focus of the book is leavened by some contributions from well-informed investigative journalists (for example, Dana Priest) and from those interested in broader questions of ethics and political morality (for example, David Luban, Stephen Holmes, and Joyce Dubensky). In addition to presenting the transcript of a Panel Discussion, “Torture: The Road to Ahu Ghraib and Beyond,” there are twenty chapter length essays, as well as a number of “Relevant Documents,” including the Bybee-Gonzales memorandum of August 1, 2002, and the Levin-Comey memorandum of December 30, 2004.

Under the theme of torture, a number of aspects are examined by the contributors. The book chapters are organized into four sections; Democracy, Terror and Torture; On the Matter of Failed States, the Geneva Conventions, and International Law; On Torture; and Looking Forward. These themes enable the contributors to bring a variety of disciplinary and practical perspectives to bear on the broader theme, while using the published torture memoranda as a framework providing coherence to the collection.

One of the principal strengths of the collection is the field of contributors. The field is broader than the ‘usual suspects’ one might predict on such a controversial issue. While the collection as a whole presents many more criticisms of current and recent US tactics in GWOT than it does supportive viewpoints, the flow is not all one way. It has managed to achieve this by drawing both insiders and outsiders together to examine a range of pertinent questions under the rubric of torture. [*497] One significant contributor in this regard is William Taft IV, a legal adviser in the Department of State from 2001 to 2005. Other contributors to offer either an insider perspective or one at odds in some respects from many of the more critical contributions include Heather MacDonald, a writer and commentator, and Andrew McCarthy, a former prosecutor and employee of the Department of Justice. In bringing together such a range of opinions from a distinguished and well-informed group of contributors, the collection succeeds in minimizing the elements of shrill stridency and uninformed speculation, often in combination, that can be found in commentaries on this issue. Having said this, in many cases, the individual contributions do not show signs of considering earlier drafts of other contributions to the book, with the result that there is a silo-effect. In other words, while the volume manages admirably to represent a range of views, apart from the panel discussion, there is no dialectical element to the book, reflecting an intense engagement between contributors. While I am asking to set a high benchmark here for exercises of this nature, it remains hopefully the direction in which future exercises might develop, building upon the platform of greater transparency and analytical capacity that has evolved recently, due in large measure to the relative availability of key policy and operational documents.

Another question that the book leaves open, or at most is dealt with in passing in a few individual chapters, is the significance of the wider setting, in particular the public mood and opinion upon these questions, for debates around torture. It is relatively easy to see the US government’s flirtation with torture and other coercive measures post-911 as an expression of political whim within what some critics see as a grand imperialist mission to defeat terrorism everywhere. A more complex examination would seek to explain the form of interrogation and detention arrangements in places such as Guantanamo Bay today and in the recent past, in terms of public expectations about how the GWOT should be conducted and the tough political choices (at least in some instances) that follow. This in turn might lead to an examination of how public fear of future terrorist attacks is played out, and manipulated, in political discussions. Analysts who fail to acknowledge the political realities surrounding these issues run the risk of being unpersuasive and indeed seen as irrelevant. Similarly, those who make their case purely or largely by reference to political or moral principle, without grounding their arguments in the practicalities of the situations in which potential users of torture methods find themselves, are likely to go unheeded. One of the ironies presented by Dubensky and Lavery’s contribution on finding religious resources for condemning torture (in Chapter 8) is that today’s American reservist serving in Iraq in a military prison is probably more familiar with Biblical injunctures and prescriptions than with Kantian philosophy. If true, those seeking to influence behavior among participants within the GWOT in a positive direction would be better off to focus on the religious propensities of those serving on both sides of the conflict, rather than [*498] invoking more rarefied (and secular) notions of human rights.

What is meant by torture, and the different ways in which it might be used in GWOT, remain issues around which greater clarity is needed. While much can be gained from reading these contributions in relation to these questions, there is scope for greater analytical precision. Much of the characterization of torture today in the GWOT draws directly or indirectly upon a diverse range of applications within the history of torture, including its use as part of systematic repression and elimination of political opponents in countries such as Chile and Argentina in the 1970s and 1980s. Moreover many recent accounts tend to focus upon the physical manifestations of torture, giving less regard to the psychological impacts of certain detention regimes. The intense debates within the US administration around what degree of physical harm or pain amounted to “torture” – and which was therefore prohibited under domestic as well as international law – certainly lent weight to this analytical focus. The use of methods of torture within the context of interrogation, and within the context of war-like operations involving unconventional combatants, are issues that sometimes get overlooked or too readily analogized with other contexts in which torture has been used. One suspects that for many critics of current field interrogation methods in GWOT, the measure is how interrogations in ordinary criminal cases are routinely handled. Whether this comparison is an appropriate one is rarely asked or addressed. It surely is a matter warranting further examination and, like many questions arising in this vexed area, would benefit from better empirical understanding. One of the underlying difficulties analysts confront in this area is being able simply to pose some of the difficult questions that are not merely of technical interest, but also of potentially enormous moral and practical significance. The ‘unspeakable’ nature of the subject-matter for some commentators limits, rather than enhances, useful debate. However, a refusal to engage with certain questions hardly seems likely to lead to a modification or abolition of certain objectionable practices. It would seem to make more sense to accept that there are ‘hard choices’/‘lesser evil’ elements that arise in GWOT, and deal with them in a transparent, reasonable way.

This point applies not least to the question “does torture work?” This leads to further crucial questions, especially, “what is meant by torture?” and “under what circumstances, or for what purposes?” I have suggested that the particular context for asking this question is, or rather, ought to be, interrogations of suspected combatants and their associates in war-like operations. The objective in many such situations is clearly related to collecting intelligence, rather than eliciting evidence for a criminal prosecution, though both objectives may coexist in some cases. So does torture work in these cases? For many contributors to this collection, this point is not the central one of their argument. But it can hardly be ignored. The answer cannot be divorced from the circumstances of the GWOT, and hence from the objectives [*499] of useful analysis. Yet when the issue does occasionally arise, the point is often made that confessions under torture often lead to unreliable statements, especially where those being tortured are in fact innocent (so-called ‘false positives’). However, the fact that “sometimes” or indeed “often” statements obtained through extreme methods are unreliable does not negate all tactical objectives, especially because it seems clear enough (and intuitively true) that sometimes even the threat of inflicting pain is sufficient to elicit reliable, useful information that may save lives or lead to the dismantling of terrorist operations.

Ultimately, these questions cannot remain unanswered or left on the basis of faulty assumptions. Such practical issues will always be subject to reality checks, informally if not formally, even if it is left to field operatives out of public view to draw their own different conclusions from some of the glibber assessments provided by critics of these measures. Once we have informed assessments of what is being proposed in an area such as interrogation of suspected combatants in the GWOT, including the likely utility of particular methods under consideration, public discussion is likely to deliver better, legitimate outcomes than has been the case previously. We can, as part of the torture debate, look at these proposals alongside some of the other contextual considerations relevant to the debate. Some of the contributors to this book have rightly drawn attention to the damaging impact upon non-US perceptions of US actions against terrorism, and their counterproductive consequences, of events such as the abuses at Abu Ghraib prison. A number has also questioned the idea that torture can be regulated, restricted narrowly, as some like Alan Dershowitz have famously asserted. Certainly, history largely favors the sceptics’ argument. This book goes a long way to raising a range of pertinent normative and doctrinal questions in relation to torture and associated matters; it also goes some way to looking at contextual questions and practical issues. With any luck, some of the tough empirical issues implied within many of these discussions, as well as further conceptual clarification, will become the subject-matter of further scholarly investigation.

REFERENCES:
Greenberg, Karen J., and Joshua L. Dratel. 2005. THE TORTURE PAPERS. New York: Cambridge University Press.

© Copyright 2006 by the author, Andrew Goldsmith.

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DEMOCRACY, MINORITIES AND INTERNATIONAL LAW

by Steven Wheatley. Cambridge: Cambridge University Press, 2005. 226pp. Hardback. $90.00/£50.00. ISBN: 0-521-84898-9.

Reviewed by Magdalena Zolkos, Institute of Political Science, Copenhagen University. Email: mzolkos [at] gmail.com.

pp.492-495

Steven Wheatley is known to the international scholarly audience for his work on minority rights, human rights and democratic governance (in Europe and elsewhere). He has recently written a book that deals with the issues of democracy, minority rights and collective territorial self-determination in international law. It is an excellent and thorough introduction to the legal and institutional arrangements of the contemporary minority rights regime in the Western world. A great value of that book is precisely that it positions questions of minority rights and self-determination right in the analytical propinquity to democracy, and as such it manages to address an important lacuna within the rights-oriented literature of today. While this book is written from a legal point of view, it will also provide a useful read for many political scientists, international relations scholars and other social scientists. The readership of this book includes, therefore, undergraduate students of legal and social sciences, as well as those graduate students and academic scholars who work with issues of democratization, minority groups, human rights, self-determination, consociationalism and national sovereignty.

The main purpose of DEMOCRACY, MINORITIES AND INTERNATIONAL LAW is “to examine the position of cultural minorities in international law, with a particular focus on democratic States” (p.2). Furthermore, this cleaves into two main objectives. The first objective is to provide a comprehensive overview over the legal and institutional democratic arrangements that relate to minority rights, territorial self-determination and democratic solutions to minority-related problems. Steven Wheatley indisputably achieves that objective as his DEMOCRACY, MINORITIES AND INTERNATIONAL LAW provides an extensive, detailed and amply documented and referenced account of the minority problematique in international law. The book also has a clear and coherent argumentative structure, and it is well organized and written in an accessible and comprehensible academic style, largely devoid of legal jargon. The second objective of this book is critical and normative, namely to indicate weaknesses of the contemporary approaches and solutions of the international community as regards minority rights and self-determination rights. Accordingly, the author has convincingly argued that the international community “has failed to define the relevant beneficiaries of the [self-determination] right, or to detail the circumstances in which measures to protect and promote cultural security should be introduced, or territorial self-government regimes established” [*493] (p.127). However, due to the dominant descriptive mode of Wheatley’s analysis, he fails to achieve more than offer (rather vague) suggestions of what needs to be emendated, what should be the legal and institutional trajectories of such corrective endeavor, and how it should be achieved.

Another great asset of DEMOCRACY, MINORITIES AND INTERNATIONAL LAW is that this book not only provides an extensive synchronic comparison of the national laws and minority rights institutions nowadays, but that it also shows how international legislation, legal practice, as well as meanings and interpretations of such terms as “minority,” “minority rights,” “self-determination,” or “democratic governance” have changed throughout the decades. This makes it possible for the reader to map the evolutionary change in conceptual and legal thinking in, for instance, complementing the primacy of individual rights with collective considerations, or the initial negative rights discourse of the international human rights instruments with positive rights formulations. Also, Wheatley has thoroughly depicted the complicated relationship of law and politics in the areas that are in the focus of his research. This is particularly visible in regard to the controversial and contentious issue of forming an international definition of “minorities.” Wheatley shows how very different legal notions and national interpretations are, as a matter of fact, underpinned and influenced by historical developments and contemporary political considerations. An example here is Denmark’s definition of “national minorities” and “indigenous people” as two separate (and alternative) categories of social belonging, which has allowed Denmark to exclude the groups of Greenlanders and Faroese from the national protection of the Framework Convention for the Protection of National Minorities of the Council of Europe. Another example is Estonia’s requirement that national minorities include groups that are in possession of Estonian citizenship, which has made it possible for Estonia to exclude from that category numerous stateless Russian-speakers. The only deficiency is that in the context of his discussion of defining national minorities in Europe, Wheatley does not provide the reader with extensive political and historical background information. Such information would be a definite asset provided that the book is directed at the undergraduate readership group. Therefore, as the scope of this book has been limited to the overview of legal and institutional instruments of the European minority rights regime, it has maintained perspicuity of its main argumentative line, but at the same time its explanatory potential has been curbed.

The focus of Wheatley’s book is primarily on Europe, but it includes examples of legal cases and organizational solutions from, for instance, Canada and New Zealand. There are examples from outside of the Western world, such as post-colonial Somalia and Morocco, and the ethnic federations of Malaysia, Pakistan and India (mostly discussed in the sub-section “Decolonialisation”), but they remain sparse and somewhat under-[*494]explored. On the one hand, the Europe-centrism (or West-centrism) of this book is understandable due to the developed political and legal framework of European institutions dealing with human and minority rights, as well as the historical securitization of the minority issues in Europe in the 20th century and the alleged idiosyncratic intricacy of minority-majority relations in contemporary Europe. On the other hand, however, this book’s primary focus on Europe underplays the importance of the minority problematique elsewhere in the world, where regional institutional networks of human rights protection remain in much more rudimentary condition, and where nevertheless belonging to underprivileged ethnic, religious, linguistic and cultural groups has important consequences for people’s security and social well-being. Wheatley’s book might have avoided this criticism if he had explicitly narrowed the geo-political focus of its analysis to the West, rather than give an impression of adopting a comprehensive global perspective.

Finally, while DEMOCRACY, MINORITIES AND INTERNATIONAL LAW is likely to attract attention of both legal and social scientific readership, it nevertheless demonstrates the difficulties with practicing interdisciplinarity and, in particular, the tension that often resonates between legal and political scholarly approaches to such social phenomena as “minorities” and/or “rights.” The author makes an admirable attempt to expand and sophisticate the disciplinary perspective of his analysis, but it remains debatable to what extent he actually succeeds. For instance, throughout the book the reader encounters such intriguing assertions as “[e]thno-cultural groups are imagined communities” (p.62). However, Wheatley does not explain what he actually means by this claim; he does not refer to the extensive body of cultural and social scientific literature that has dealt with the constructed nature of national and ethnic identities; and he does not show how the conceptual prism of “imagined communities” actually complicates and problematizes the contemporary legal and political approach to minority rights (see e.g. contributions by Adrian Hastings, Benedict Anderson and Joane Nagel in Spencer and Wollman 2005). Rather, he seems to be taking minorities as “imagined communities” for given. Another, and possibly more important, issue is that Wheatley uses terminology that is common to law, as well as political science and international relations, but he seems to pay no attention to the fact that these concepts are interpreted and problematized along very different trajectories within these disciplines. One example here is the concept of sovereignty that the author seems to equate simply with territorial self-government, and consequently he takes little notice of the complex and potentially insightful debates on sovereignty conducted by international relations scholars (e.g. Walker and Mendlovitz 1990; Walker 1993; Weber 1995; Biersteker and Weber 1996).

In spite of these few problems and deficiencies, Steven Wheatley’s DEMOCRACY, MINORITIES AND [*495] INTERNATIONAL LAW constitutes an important and well-argued contribution to the on-going academic discussions on minorities, self-determination and democracy. It is particularly recommended for those who, without necessarily having much prior knowledge on that topic, would like to gain a thorough introduction.

REFERENCES:
Biersteker, Thomas J., and Cynthia Weber (eds). 1996. STATE SOVEREIGNTY AS SOCIAL CONSTRUCT. Cambridge: Cambridge University Press.

Spencer, Phillip, and Howard Wollman (eds). 2005. NATIONS AND NATIONALISM: A READER. New Brunswick, NJ: Rutgers University Press.

Walker, R.B.J. 1993. INSIDE/OUTSIDE: INTERNATIONAL RELATIONS AS POLITICAL THEORY. Cambridge: Cambridge University Press.

Walker, R.B.J., and Saul H. Mendlovitz (eds). 1990. CONTENDING SOVEREIGNTIES: REDEFINING POLITICAL COMMUNITIES. Boulder: L. Rienner Publishers.

Weber, Cynthia. 1995. SIMULATING SOVEREIGNTY: INTERVENTION, THE STATE, AND SYMBOLIC EXCHANGE. Cambridge: Cambridge University Press.

© Copyright 2006 by the author, Magdalena Zolkos.

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FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE

by Gregory J. Wawro and Eric Schickler. Princeton: Princeton University Press, 2006. 326pp. Cloth $29.95/£18.95. ISBN: 0-691-12509-0.

Reviewed by Frances E. Lee, Department of Government and Politics, University of Maryland, flee [at] gvpt.umd.edu.

pp.488-491

Scholars and journalists today often speak of “the 60 vote Senate,” a reference to the three-fifths majority necessary to cut off debate and force a measure to a vote. Conventional wisdom holds that the supermajority necessary to achieve cloture effectively means that successful legislation must win support from at least 60 senators. If this is true, Gregory Wawro and Eric Schicker ask, how did the 19th century Senate legislate at all? Prior to the adoption of the cloture rule in 1917 there was no procedural mechanism available to end debate and bring measures to a vote. If the cloture rule explains why nearly all major laws adopted by the contemporary Senate pass by margins of at least 3/5 (p.27), then it stands to reason that universal coalitions would have been required in an institution without a rule for ending debate. The 19th century Senate nevertheless dealt with highly contentious issues; majorities were able to legislate despite significant opposition; and the Senate as an institution “functioned well enough to be a major player in one of the most successful and prosperous democratic nations the world has known” (p.6).

Wawro and Schickler thus look to history to gain a better understanding of how institutional rules and procedures affect legislative policymaking. By extending their analysis of Senate obstruction back in time, they allow rules and precedents to vary and thereby gain better analytical traction on their puzzle. They investigate the topic with an impressive array of quantitative and qualitative evidence. They conduct statistical analyses of coalition size over time, the passage of appropriations bills, and obstruction on slavery in the antebellum Senate. They provide in-depth case studies, with extensive quotation from the Congressional Record and other primary sources. They examine in detail the role minority obstruction played in the Bank Bill of 1841, the Federal Elections Bill of 1890-91, and the politics of the tariff throughout the 19th century. In the process, they shed new light on Senate history and on the recent controversy over Senate confirmation of judicial nominees.

Wawro and Schickler come to a counterintuitive conclusion: majorities were paradoxically better able to rule in the 19th century Senate than in the contemporary Senate, despite the lack of a cloture mechanism then and the existence of one now. They argue that narrow majorities in the 19th century could threaten to enact precedents that would restrict obstruction, and these threats led legislative minorities to exercise self-restraint. Wawro and Schickler contend that these threats were credible in part because 19th century senators could look to the House of Representatives for an example of how floor majorities could use procedural [*489] rulings to limit obstruction (pp.62-65). They argue that this strategy was also a viable option in the Senate. Indeed, the “nuclear option” contemplated by the Republican majority in the 2004-2005 deadlock over judicial nominees would have operated according to this basic logic: a senator would make a point of order that filibusters of judicial nominees were unconstitutional; the Vice President as the presiding officer would uphold that point of order; a member of the majority party would then offer a nondebatable motion to table the appeal of the presiding officer’s ruling; and then a majority vote would sustain the tabling of the appeal. Thus a precedent ending filibusters of judicial nominees could be established by simple majority.

Under this logic, Wawro and Schickler argue that Senate rules are subject to a “remote majoritarianism” (p.275). A committed majority that finds itself thwarted on highly salient issues has the power to change Senate rules to enable it to enact its policy preferences. According to Wawro and Schickler, the Senate has not adopted majoritarian procedures because, “such a committed majority has never been manifested” (p.263). In their study of the 19th and early 20th century Senate, they strive to document that a sustainable majority was never thwarted by minority obstruction on a significant, salient matter. Southern filibusters were not the cause of the Senate’s failure to act on civil rights because not even a simple majority of senators supported cloture on any civil rights measure considered between 1917 and 1964 (p.263). Although a minority successfully delayed the passage of the Bank Bill of 1841, the minority Democrats permitted the passage of the Whig program in the end (p.73). They argue that the Federal Elections Bill of 1891 was not defeated by minority obstruction, but by the unraveling of majority support for the bill as members of the majority party defected (p.77).

This is a bold argument, and it stands in opposition to much scholarship on the Senate, including the Binder (1997) and Binder and Smith (1997) accounts of institutional development. Wawro and Schickler do not view the Senate’s failure to adopt majoritarian procedures as a “path dependent” consequence of the lack of a procedural motion enabling a simple majority to close off debate. Instead, they contend that Senate rules have persisted because Senate majorities prefer to keep them that way.

Although Wawro and Schickler muster substantial evidence in support of the ability of Senate majorities to govern in the 19th century, it remains unclear how important majority threats to restrict minority rights were among the various reasons for restrained floor obstructionism. In an era when normative theories of party government were far more widely accepted, senators’ beliefs about appropriate legislative procedure exercised important restraint on minority obstruction. Indeed, Wawro and Schickler provide strong historical evidence that such norms played an independent role (pp.39-59). In addition, obstruction was less used when it was less effective, in a period when the institution’s workload was less onerous and majorities could afford to [*490] take the time to fully engage a “war of attrition” with opponents (pp.56-57).

It is more unclear that “remote majoritarianism” can convincingly account for the contemporary Senate. The focus of the book is on the 19th and early 20th centuries, and only limited attention is given to the contemporary Senate, but the remote majoritarianism thesis is often phrased in ahistorical terms: “If existing institutions are producing outcomes on highly salient issues that are unsatisfactory to a majority of the Senate, the rules themselves are subject to change” (p.275). The idea that the contemporary Senate comports with remote majoritarianism is very difficult to accept when so much important legislation over the past 30 years has fallen casualty to the supermajority requirements in the Senate. President Clinton’s entire legislative agenda was stymied by a minority party filibuster at the end of the 103rd Congress (Sinclair 1997, at 49). Binder and Smith (1997, at 135) compile a lengthy list of important post-1970s measures killed by filibusters. Many more majority-supported agenda items have been watered down to accommodate minority objections and achieve a filibuster-proof margin of victory. If legislative majorities do not attempt to change Senate rules today, it cannot be because they are fully able to achieve their policy goals under existing rules. The persistence of those rules must have other, non-policy causes.

Existing Senate procedures may be accepted and tolerated by Senate majorities today given the available alternatives, but this does not mean that a majority of senators designing institutional procedures on a blank slate would actively choose the supermajority procedures that currently exist. Even though it is difficult to obtain majority support for any particular set of procedural reforms, a legislative majority solely concerned with enacting its policy goals would not likely select procedures designed to thwart those goals. But within the Senate context as it exists, battles over procedure come at great cost. They embroil the institution in debates at some remove from senators’ substantive policy goals. They consume valuable legislative time. And procedural reforms often create undesirable unanticipated consequences.

The Wawro/Schickler thesis challenges much conventional wisdom about the policy effects of the Senate filibuster, but it raises more questions than it settles. Can the failure of Senate Republicans in 2004-2005 to marshal majority support for limiting filibusters of judicial nominees be interpreted through the lens of remote majoritarianism? It is true that no majority existed to change Senate rules and support Majority Leader Frist’s plan to invoke the “constitutional option.” A sufficient number of majority party senators may [*491] have concluded that the costs of “going nuclear” were too high, given the extensive resources of the minority party to respond across other agenda items. Individual senators may prefer to keep the filibuster for non-policy reasons because, “the right of unlimited debate makes each senator a more prominent player on the national political stage” (p.263). Senators may have also have preferred to retain existing procedures because the broader public views them as the legitimate “rules of the game” (p.273). Multiple explanations for the persistence of the Senate’s supermajority procedures remain.

Wawro and Schickler have done Senate scholarship a great service with their provocative argumentation, their impressive historical research, and their statistical analysis. The book will be widely read by scholars and graduate students interested in the Senate and American institutions generally. And it will undoubtedly stimulate future research into the root causes of the Senate’s distinctive procedures and the effects of those procedures on the Senate’s deliberative and policymaking capacities.

REFERENCES:
Binder, Sarah A. 1997. MINORITY RIGHTS, MAJORITY RULE. New York: Cambridge University Press.

Binder, Sarah A., and Steven S. Smith. 1997. POLITICS OR PRINCIPLE: FILIBUSTERING IN THE UNITED STATES SENATE. Washington: The Brookings Institution.

Sinclair, Barbara. 2000. UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCEDURES IN THE U.S. CONGRESS. 2nd ed. Washington: CQ Press.

© Copyright 2006 by the author, Frances E. Lee.

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THE CONSTITUTION AND CAMPAIGN FINANCE REFORM: AN ANTHOLOGY (2nd ed)

by Frederick G. Slabach (ed). Durham, NC: Carolina Academic Press, 2006. 632pp. Paper. $55.00. ISBN: 0-89089-424-8.

Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University.

pp.482-487

The Supreme Court’s 2003 campaign finance decision, MCCONNELL v. FEDERAL ELECTION COMMISSION, is one of those rare constitutional moments in which rote consistency and dramatic change play equal co-starring roles. In MCCONNELL, the Supreme Court once again rejected suggestions that reining in the high costs of running for office or leveling the playing field between rich and poor were constitutionally valid campaign finance concerns. Instead, the Court reaffirmed its decades-old holding in BUCKLEY v. VALEO that only combating the appearance of quid pro quo corruption was sufficient to justify regulations on political money.

Yet even as the Court stubbornly clung to its insistence that only corruption counted, it radically altered its view of what counted as corruption. The Court in MCCONNELL expanded on its heretofore limited perspective that only the trading of an actual vote or promise of legislative action for a campaign donation constituted the requisite quid pro quo. Presented with reams of evidence that donors were buying not only votes but also access to legislators – most notably, testimony indicating that many donors felt compelled to contribute to both sides of the partisan aisle out of a perceived need to “pay-to-play” – the MCCONNELL Court trailblazingly characterized these payments for implicit promises to hold open the door to a legislator’s office as the exact kind of corrupt act that could be restricted without offending the First Amendment.

Clearly, then, MCCONNELL v. FEDERAL ELECTION COMMISSION heralds a new constitutional era for campaign finance legislation, an era in which the Supreme Court has dramatically liberalized its tolerance for regulation even as it has perpetuated a decisional structure that has been in place since 1976. This new era calls for updated scholarship in the field, and Frederick Slabach has obliged with a second edition of his 1998 anthology, THE CONSTITUTION AND CAMPAIGN FINANCE REFORM, which features seven new chapters.

Slabach, who recently ended a three-year stint as Dean of Texas Wesleyan School of Law to become CEO of the Harry S Truman Scholarship Foundation, has produced a valuable resource for scholars and students that reproduces some of the seminal reactions to the Supreme Court’s campaign finance jurisprudence, as well as vital analysis of the various theories backstopping campaign finance legislation. As useful as the second edition is, however, it is a curiously structured update, in that the most important new developments in the field are comprehensively under-[*483] stressed.

THE CONSTITUTION AND CAMPAIGN FINANCE REFORM contains work by leading legal scholars, such as Vincent Blasi, Daniel Hays Lowenstein, and Cass Sunstein. This roster of legal-constitutional commentators is complemented by several real-world practitioners and observers. Former Oklahoma Senator David Boren – one of the modern pioneers in drafting campaign finance reform legislation – contributes a chapter, as does Democracy 21 founder and former Common Cause president Fred Wertheimer (a piece he co-authors with fellow Common Cause and Democracy 21 official Susan Weiss Manes). In addition, Slabach astutely includes prominent political science research on campaign finance, such as Anthony Corrado’s postmortem on the role that soft money played in the 2000 presidential and congressional elections.

However, the inclusion of Corrado’s work also serves to highlight its comparative isolation; it is one of the only pieces in the book authored by a political scientist, and it is the only piece that focuses on actual campaign data. Though it is problematic to suggest that some of the high-caliber constitutional analysis Slabach chooses to present should be sacrificed, it is nevertheless the case that this constitutional analysis would be better supplemented by at least one or two more “hard” political science pieces.

Granted, it can be presumed that a major aim of the book is to avoid being merely a replication of eye-glazing statistical regressions, and to instead opt for a more normative approach to a subject that is too often bogged down in the details. Of course, truly gifted political scientists like Corrado – as well as David Magleby and Michael Malbin, to name two others – are able to evaluate campaign finance reform schemes empirically by using plain language as well as by relying on raw numbers, and incorporating more of this kind of scholarship would have been made the anthology richer. A chapter outlining the practical impact of the Bipartisan Campaign Reform Act on the 2004 election cycle, for example, would have been an ideal addition.

A key side project within the volume is its brief but effective reminder that political money is inextricably linked to political advertising, and this section has been extended since the first edition. Timothy Moran’s chapter on televised political advertisements is now accompanied by a general assessment of broadcasting and the public interest from former FCC Chairman Reed Hundt. Both Moran and Hundt adeptly connect their observations about mass media political communication to the means with which such communication is funded, and these two chapters provide a particularly fascinating counterbalance to the overall themes explored elsewhere in the volume.

One of the most attractive facets of THE CONSTITUTION AND CAMPAIGN FINANCE REFORM is its juxtaposition of opposing points of view. The book is not a pro- or anti-regulation workbook, but rather a well-rounded collection of contrasting arguments. As he did in the first edition, Slabach excerpts both Judge [*484] J. Skelly Wright’s classic 1976 refutation of the BUCKLEY Court’s notion that money is speech, and Lillian BeVier’s equally influential 1985 characterization of campaign finance regulation as an injury to the First Amendment.

While one of THE CONSITUTION AND CAMPAIGN FINANCE REFORM’s winning features is its willingness to disregard the informal “ten-year rule” about what constitutes important scholarship, the volume could have benefited from a greater infusion of contemporary work. The second of Richard Briffault’s two contributions to the volume is his review of the intriguing campaign vouchers and “secret donations booth” proposals offered by Bruce Ackerman and Ian Ayres in 2002, but this chapter unintentionally stands out in this volume as one of the few pieces written in the 21st century.

Indeed, the main problem with THE CONSTITUTION AND CAMPAIGN FINANCE REFORM is that there is precious little material dealing with either MCCONNELL v. FEDERAL ELECTION COMMISSION or subsequent developments. Aside from Slabach’s introduction, only one of the twenty-one other pieces contributed to this anthology was written after MCCONNELL was decided. That piece, a United States Law Week article by Ohio State law professors Edward B. Foley and Donald Tobin, is more an account of how political professionals are coping with (and evading) the practical dictates of MCCONNELL, and less a treatment of the opinion itself.

This kind of real-world assessment of MCCONNELL’s implications is certainly a welcome addition to the literature. Indeed, one wishes that it had been accompanied by another piece exploring the growing tensions between a Supreme Court that is clearly amenable to campaign finance regulation and a Federal Election Commission which is both hostile to regulation and positioned to undercut judicial (and Congressional) intentions. The FEC’s green-lighting of “527” groups – the centerpiece of the Foley-Tobin chapter – reveals an emerging institutional dynamic that is in many ways unprecedented, and this is an inquiry that anthologies like THE CONSTITUTION AND CAMPAIGN FINANCE REFORM ought to pursue.

A more glaring omission, however, is the lack of any in-depth analysis of the MCCONNELL opinion itself from a jurisprudential perspective. The Foley-Tobin chapter offers only a brief summary of “what happened” in the opinion, without placing it in the larger contexts of either the Court’s case law on campaign finance specifically or its work on the First Amendment generally. Likewise, Slabach’s own introductory chapter dedicates only a couple of pages to this task, and yet this section is the most thorough treatment of MCCONNELL that appears anywhere in the book.

Granted, some of the holdover chapters from the first edition do anticipate some of the arguments that eventually appeared in MCCONNELL. Thomas Burke’s 1997 article in CONSTITUTIONAL COMMENTARY, [*485] “The Concept of Corruption in Campaign Finance Law,” is markedly prescient in its discussion of how campaign contributions can undermine deliberative democracy. Indeed, the Court in MCCONNELL seemed to be operating from Burke’s playbook when it slotted payments for legislative access into its existing quid pro quo framework. Peter Shane’s memorable 1996 plea for BUCKLEY to be overruled specifically condemned the distinction between contributions and expenditures that was crafted by the BUCKLEY per curiam (who were in turn building on the approach taken by D.C. Circuit Judge Edward Tamm in his earlier concurrence). One of the striking aspects of MCCONNELL and its immediate predecessor cases is how such an argument rejecting “bifurcation” can be advanced by Justices who are both in favor of regulation (John Paul Stevens) and opposed to regulation (Clarence Thomas). Yet without any substantive discussion of MCCONNELL in the anthology, this peculiar and potentially significant jurisprudential quirk is lost.

The failure to provide any significant appraisal of MCCONNELL is even odder given that Slabach made sure that the first edition of the anthology contained a chapter analyzing what was at that time the Court’s most recent major campaign finance decision: COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE v. FEDERAL ELECTION COMMISSION, a/k/a “COLORADO 1.” (This “COLORADO 1” chapter is the only one from the first edition that does not appear in the second). Although it is possible for readers to cobble together an account of MCCONNELL from the various pre-MCCONNELL excerpts, it would have been much more helpful if the volume featured current evaluations of the case, just as the first edition covered “COLORADO 1.”

There is certainly no paucity of such work. In 2004 alone, Samuel Issacharoff and Richard Hasen each devoted major articles to MCCONNELL, and Richard Pildes offered his own critique as part of his HARVARD LAW REVIEW foreword on election law. While Hasen does contribute a different article to THE CONSTITUTION AND CAMPAIGN FINANCE [*486] REFORM, the anthology’s omission of Issacharoff and Pildes – two of the most eminent scholars in the field – is difficult to fathom. Readers understandably expecting that a newly-updated anthology on campaign finance would include a review of MCCONNELL, and who subsequently discover that such a review is nowhere to be found, are likely to wonder why the anthology was updated in the first place.

Finally, it should be pointed out that the book does suffer from some proofreading miscues, especially in its contributors section. Skelly Wright’s YALE LAW JOURNAL article is erroneously listed as being published in 1996, eight years after his death; it in fact came out in 1976, and was an immediate response to the BUCKLEY decision. More amusingly, Bradley Smith’s anti-regulation polemic, “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform,” is referenced as “Faculty Assumptions and Undemocratic Consequences . . . ,” a typo which might well gladden Smith’s heart, but which nevertheless should have been caught prior to publication.

Although THE CONSTITUTION AND CAMPAIGN FINANCE REFORM is an excellent compilation of pre-MCCONNELL material on both the constitutional implications of regulations on political money and the ways in which those regulations have worked in the rough-and-tumble of electoral politics, it is strangely deficient in its coverage of the current subject. While the book can assuredly be recommended as a handy source of historically significant legal and political scholarship on campaign finance, students and scholars hoping for a volume that will also provide analysis of current questions and debates will have to look elsewhere.


REFERENCES – EXCERPTED MATERIALS:
BeVier, Lillian R., 1985. “Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform.” 73 CALIFORNIA LAW REVIEW 1045.

Briffault, Richard, 2003. “Campaign Finance Reform: A Review of Voting With Dollars.” 91 CALIFORNIA LAW REVIEW 643.

Burke, Thomas F., 1997. “The Concept of Corruption in Campaign Finance Law.” 14 CONSTITUTIONAL COMMENTARY 127.

Corrado, Anthony, 2002. “Party Finance in the 2000 Elections: The Federal Role of Soft Money Financing.” 34 ARIZONA STATE LAW JOURNAL 1025.

Foley, Edward B. and Donald Tobin, 2004. “Tax Code Section 527 Groups Not An End-Run Around McCain-Feingold.” 72 THE UNITED STATES LAW WEEK 2403.

Shane, Peter M., 1996. “Back to the Future of the American State: Overruling Buckley v. Valeo and Other Madisonian Steps.” 57 UNIVERSITY OF PITTSBURGH LAW REVIEW 443.

Smith, Bradley A., 1996. “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform.” 105 YALE LAW JOURNAL 1049.

Wright, J. Skelly, 1976. “Politics and the Constitution: Is Money Speech?” 85 YALE LAW JOURNAL 1001.

REFERENCES:
Ackerman, Bruce, and Ian Ayres. 2002. VOTING WITH DOLLARS – A NEW PARADIGM FOR CAMPAIGN FINANCE REFORM. New Haven: Yale University Press.

Hasen, Richard L., 2004. “Buckley Is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission.” 153 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 31. [*487]

Issacharoff, Samuel, 2004. “Throwing in the Towel: The Constitutional Morass of Campaign Finance.” 3 ELECTION LAW JOURNAL 259.

Pildes, Richard H., 2004. “Foreword: The Constitutionalization of Democratic Politics.” 118 HARVARD LAW REVIEW 28.

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

COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE v. FEDERAL ELECTION COMMISSION (“COLORADO 1”), 518 U.S. 604 (1996).

MCCONNELL v. FEDERAL ELECTION COMMISSON, 504 U.S. 93 (2003).

© Copyright 2006 by the author, Steven B. Lichtman.

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DENIAL OF JUSTICE IN INTERNATIONAL LAW

by Jan Paulsson. Cambridge, UK and New York: Cambridge University Press, 2005. 306pp. Hardback. $90.00/£50.00. ISBN: 0521851181.

Reviewed by Mark J. Harris, Department of Jurisprudence and Social Policy, University of California, Berkeley. Email: mjh [at] berkeley.edu

pp.479-481

Arising from a series of lectures at the University of Cambridge, DENIAL OF JUSTICE IN INTERNATIONAL LAW does a remarkable job of illuminating a cause of action which has not received in depth scholarly attention since 1938 (a summary of the presentations at the Sir Hersch Memorial Lectures, University of Cambridge, 2003 can be found online at: http://lcil.law.cam.ac.uk/lectures/hersch_lecture_2003_sum.php ). That cause of action, “denial of justice,” originated in a medieval tradition of armed reprisal when a State subject was wronged abroad. In our time, this has come under the penumbra of State responsibility: “a State incurs responsibility if it administers justice to aliens in a fundamentally unfair manner” (p.4). Jan Paulsson makes the case that denial of justice has become much more important in a world where international fora are no longer the exclusive province of State representatives, but also include NGOs and individuals.

The book will be of most interest to students and practitioners of international law, legal historians, and perhaps those social scientists interested in legal and other normative regimes embedded in international dispute resolution. In the legal realm, this book-length treatment of a single cause of action will serve those interested in the development of customary international law, commercial arbitration, human rights jurisprudence, and the relationship of tribunals to the permanent institutions of international justice.

Chapter One is an introduction to the grounds of denial of justice in customary international law and is a lucid example of how those kinds of arguments are made. Customary international law can be a difficult issue for law students to comprehend, and this chapter serves as an excellent illustration, perhaps as supplementary reading to a traditional curriculum.

Chapter Two traces the conceptual development of the delict from the Middle Ages to the present day and will be of most interest to those in legal history. It also includes a fascinating discussion of the Calvo Doctrine and Calvo Doctrine Clauses, and their development in an era when States used military might to enforce international
judgments. As Paulsson notes, “Experience of the delict of the ‘denial of justice’ in the 19th century was so closely associated with the use of international force that it was viewed by the weak as a menace to be resisted” (p.20).

He explains that Calvo Doctrine Clauses can be understood as a condition of entry into a country for the purposes of, say, investment: a foreigner contractually [*480] waives his or her recourse to international fora. Nowadays those clauses can preclude pursuing municipal claims in that country, but it is now accepted law that these clauses cannot preclude claims of international scope such as denial of justice.

Next Paulsson analyzes three modern developments in international law that have made denial of justice more salient. They are: State responsibility for judicial conduct; the imputing of State responsibility to the action of all State nonjudicial officials or entities; and the dramatic increase in access to international law by individuals.

Chapter Four deals with conceptual ambiguities at the heart of denial of justice. Paulsson convincingly argues here that much uncertainty has resulted from confusing the bviously vague idea of “denial of justice” with its relevance to today’s disputes.

DENIAL OF JUSTICE then moves from the general to the specific. Chapter Five details the modern exhaustion of local remedies rule. Indeed, denial of justice is, in the words of one cited commentator, “as central to the study of the local remedies rule as is the Prince
of Denmark to HAMLET” (p.2). It is not clear, if this is so, why the delict has been ignored for so long, and unfortunately Paulsson does not discuss exactly why this gap in the literature should exist. He goes on to analyze instances of executive and legislative interference with international judgments, the denial of justice perpetrated by adjudicators themselves (e.g., refusing to judge, unreasonable delay, violations of due process), and remedies.

Chapter Nine moves from the legal specificities to the political context and implications of Paulsson’s analysis, and this section is especially well done. He analyzes historically the political tensions engendered by commitment to international law and adjudication, contrasting American respect for international law in the past with trends of the current political climate. Indeed, his critique of the neoconservative distaste for international legal procedures and norms will be a pleasure for anyone committed to strengthening the international machinery of dispute resolution. Noting that as of 1909 the United States had no fewer than 12 Supreme Court cases referred to international tribunals, “six of them reaching opposite results, all of them [were] complied with by the US government” (p.257).

It may be lost on the current administrations of the US and UK, but Paulsson’s analysis of a singular international delict shows us that national self-interest and international cooperation are not contradictory. Rather, they are intertwined, and in any analysis beyond the exigencies of the present moment, are almost always one and the same.

“These echoes of history,” he explains, “may suggest that respect for international adjudication is not a dangerous adventure sponsored by the naive, nor a betrayal of sovereignty fomented by the concupiscent, but the rediscovery of an old virtue of national [*481] restraint arising from the recognition of an international community of interests…True, this virtue may often prove powerless against unilateralist expediency and calculation. True, there may be disheartening periods in international life when the flame flickers feebly. . . To obtain the benefits and protections of a community, one must accept some restraints. This is not a matter of good faith or idealism, but of insight” (p.260).

© Copyright 2006 by the author, Mark J. Harris.

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JUDGING ON A COLLEGIAL COURT: INFLUENCES ON APPELLATE DECISION MAKING

by Virginia A. Hettinger, Stefanie A. Lindquist, and Wendy L. Martinek. Charlottesville: University of Virginia Press, 2006. 192pp. Cloth $39.50. ISBN: 0-8139-2518-5.

Reviewed by Richard L. Pacelle, Jr., Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu

pp.475-478

One of the central questions in the study of public law involves the determinants of judicial decision making. As a research topic, decision making combines normative, empirical, and methodological considerations. The preponderance of this literature has focused on decision making at the United States Supreme Court level. The Supreme Court is visible (as are the individual justices), most of its decisions are published, it has significant discretion over the cases it wishes to accept, and it deals with the most important political, social, and economic issues of the day. By contrast, it has been much more difficult to assess variation in decision making in the U.S. Courts of Appeals in part because their decisions are dominated by apparent collegiality.

Early studies of the Courts of Appeals were typically filtered through the lens of the Supreme Court. Analysts studied the Supreme Court and the justices and used their findings to generate the propositions that were used to examine the lower federal courts and its members. The fit was far from perfect. The study of the Courts of Appeals followed the predictable patterns of development for a research area. It began in a descriptive vein and gradually became increasingly systematic. Sheldon Goldman (1967) and J. Woodford Howard (1981) were among the pioneers who ran the first empirical tests and developed many of the propositions that today’s students of the Courts of Appeals still use. But there was one recurrent problem: the availability of reliable measures, particularly for the judges. The creation of the Court of Appeals Data Set by Donald Songer and his colleagues was the real boon for this field of study. Virginia Hettinger, Stefanie Lindquist, and Wendy Martinek have added the latest work to this growing literature, and their collective effort represents a major contribution. Using the Songer data set, they are able to tap a full lode of cases and decisions to examine a number of questions and test a variety of models.

Despite its relative brevity, the book is theoretically rich and methodologically sophisticated. Hettinger, Lindquist, and Martinek have combed the existing literature to develop elaborate models of horizontal (disagreements within the particular Court of Appeals panels) and vertical (disagreements with the District Court) dissensus. The authors examine the influence of attitudinal, strategic, institutional, and legal factors in their attempts to glean the reasons that judges on the Courts of Appeals dissent, concur, and reverse the decisions of lower courts. The authors have developed and utilized a number of superior measures for testing their models. In addition to [*476] the traditional variables, Hettinger, Lindquist, and Martinek include variables to measure the qualifications of the judges, the number of amicus briefs, relative experience of the litigants, complexity of the litigation, and the size and levels of consensus on the various circuits. Their measures of the distance between members of the circuit panels and between the Supreme Court and the Courts of Appeals are more precise than those used in previous studies, and thus the findings carry more weight. The results reveal the conditional effects of a number of different factors and at least a few surprises.

As the authors built their theoretical foundation and constructed their models, I feared they might fall prey to the temptation to use the Supreme Court as the foundation for their analysis. The extended discussion of the attitudinal model fed that concern. But the authors were careful to remind readers periodically that they are dealing with the relatively small percentage of cases in which there are dissenting and concurring opinions and trying to explain the unusual cases when consensus is not present. And in the end, the attitudinal variables were only significant in the horizontal dissensus models.

Hettinger, Lindquist, and Martinek develop their arguments and models in carefully and thoughtfully prepared stages, unpeeling one layer of the onion at a time. The authors find that attitudinal factors play the most significant role in the propensity of a judge to dissent or write a concurring opinion. Case factors, in particular civil rights and liberties cases and multi-dimensional cases, also help explain some of the decision to author a separate opinion. Some institutional variables, particularly those that reflect circuit-level norms, are statistically significant and in the predicted direction. By contrast, the strategic variables are found wanting. In addition, the authors find that many of the individual-level differences, such as acclimation effects, do not play an overwhelming role. Rather, they conclude that norms of consensus and collegial relations play a major role in depressing the propensity to author separate opinions.

The examination of vertical dissensus, which is present in almost forty percent of the cases, is also noteworthy. The authors effectively use an ordered probit model to examine the range of Court of Appeals treatment of District Court decisions: from affirm, to reverse in part, to outright reversal. The results here are, according to the authors, “remarkable” (p.117) because they do not reveal a relationship between attitudinal variables and the propensity to reverse a District Court decision. The strategic variables, once again, do not play a significant role in the decision to reverse. Courts of Appeals judges are apparently not motivated by the potential of Supreme Court reversal when making their decisions. Hettinger, Lindquist, and Martinek contrast these findings with studies of state supreme courts (Brace and Hall 1993) and the U.S. Supreme Court (Maltzman, Spriggs, and Wahlbeck 2000), where judges and justices use separate opinions as a strategic resource. In the end, the authors acknowledge that these results are not [*477] that surprising. While justices on the Supreme Court have constant interaction that might permit them to predict their colleagues’ preferences, the workload of Courts of Appeals judges, shifting panels (including senior judges and the occasional district judge), and the need to attend to the courts above and below constrain their ability to think and act too strategically.

The book is well written (except for some heavy redundancy) and accessible to upper level undergraduates and above. The book starts with some interesting vignettes and examples as an effective entry into the analysis. The authors have painstakingly mined the literature, so the first few chapters are a good primer for understanding the role and position of the Courts of Appeals. The models are carefully crafted and the findings are discussed so that even readers without strong methodological backgrounds can understand and interpret the results.

Hettinger, Lindquist, and Martinek start the book with some global issues of both normative and empirical importance. And to their credit, they return to them in the end to measure their findings against broader questions about legal determinacy and the role of the Court of Appeals in the judicial hierarchy and the construction of legal policy. The authors conclude that “the influence of norms and judge characteristics on the expression of dissensus suggests that the formal expression of disagreement among judges is a sociological and political phenomenon as much as it is a behavioral manifestation of legal ambiguity” (p.116). The authors distinguish between the individual act of writing a separate opinion and the collective judgment in reversing or upholding a lower court. This underlines their findings that different factors apparently motivate each behavior. As a consequence, they argue that their results are more reflective of a team model, than a principal-agent model (p.121).

Although it is beyond the scope of the authors’ control, the only negative is that the data end with the 1996 term. With the perceived increase in partisanship and wrangling over federal judicial nominations and a growing literature on the topic of District and Court of Appeals nominations, the question is whether an extended analysis might reveal some newly emerging patterns or reinforce the influence of attitudinal factors. I hope the authors will consider a sequel in another decade or so. This book justifies Hettinger-Lindquist-Martinek II, JUDGING ON COLLEGIAL COURTS: THE NEXT GENERATION.

REFERENCES:
Brace, Paul and Melinda Gann Hall. 1993. “Integrated Models of Dissent.” 55 JOURNAL OF POLITICS 914-935.

Goldman, Sheldon. 1966. “Voting Behavior on the United States Courts of Appeals.” 60 AMERICAN POLITICAL SCIENCE REVIEW 374-383.

Howard, J. Woodford. 1981. COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH, AND DISTRICT OF COLUMBIA CIRCUITS. Princeton: Princeton University Press. [*478]

Maltzman, Forrest; James Spriggs, and Paul Wahlbeck. 2000. CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. New York: Cambridge University Press.

© Copyright 2006 by the author, Richard L. Pacelle, Jr.

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THE LAW IN SHAMBLES

by Thomas Geoghegan. Chicago: Prickly Paradigm Press, 2005. 142pp. Paper $10.00. ISBN: 0-9728196-9-X.

Reviewed by David K. Ryden, Political Science Department, Hope College. Email: ryden [at] hope.edu.

pp.470-474

THE LAW IN SHAMBLES is labor lawyer Tom Geoghegan’s contribution to a series of pamphlets published by Prickly Paradigm Press, which is marketed and distributed by the University of Chicago Press. Prickly Press declares itself committed to the publication of “sometimes outrageous” pamphlets in which authors are “unbound” and given “free rein . . . [to write] unconstrained and creative texts.” Tom Geoghegan has certainly met that standard with THE LAW IN SHAMBLES, which is a decidedly mixed blessing. Righteously indignant throughout, Geoghegan has produced a lively and thought provoking polemic on the state of modern law and politics in America. Unfortunately, the text also is largely “unconstrained” by evidence to validate claims put forth or the serious application of nuanced reasoning that might explore arguments to their full conclusion. We are left with a wildly uneven book that, while it is often edifying, is ultimately disappointing.

Geoghegan paints a dire picture of the state of the law, and of the political and legal systems from which it emanates. The overarching premise is that the law has fundamentally changed over the past three decades or so, but without the consent of people who live their everyday lives under that law (p.5). Geoghegan portrays a rule of law divorced from true democracy, as people’s exit from civic life has had a deeply negative, corroding effect on the law. As a result, “[t]he law is less stable, less predictable. And as it becomes less stable and less predictable, people tune out” even more (pp.8-9).

How did this become so? Geoghegan identifies three primary developments, what he terms “Big Facts.” The first of those, coming unsurprisingly from a labor lawyer, is the collapse of the labor movement, and with it an attendant loss of contractually assured job security and other positive social and economic rights (access to a pension, health insurance, and more). The second Big Fact is the drop in voting and the broader withdrawal from civic life (p.12). Big Fact Number Three is the burgeoning prison incarceration rate that has overwhelmed our criminal justice system. The sum of these big facts is what Geoghegan terms “The Unfairness of It All” – the sense that “[m]ost of us get less and less, even as the country as a whole gets more and more” (p.14). Dramatically expanding inequality leads many (most?) citizens to see a deep disconnect between efforts and rewards. They respond by checking out of a legal and political system that strikes them as arbitrary and capricious – in short, illegitimate. But this only leaves us with a rule of law even more detached from the people, thus more arbitrary, capricious, and irrational.

In the chapters that follow, Geoghegan offers a wide ranging if not always neatly connected argument for why “the law in shambles” is not mere perception, [*471] but is fact. The pages are peppered both with fresh and intriguing insights that I had not considered AND assertions that do not hold up under closer scrutiny (or at least need a much fuller explication than they are given here). In the first category, I would include the author’s bemoaning of the shift from a contract-based work environment to one policed exclusively by tort law. In contrast to the golden age of the labor movement and the wide spread security provided through collective bargaining agreements, Geoghegan describes a modern era in which work rights are enforced only through expensive, contentious, and rage-driven civil rights litigation. The result is an unsettled and randomly enforced body of employment law in place of the cooler, more rational contract-based legal system. Geoghegan is similarly enlightening in describing how the erosion of trust law has undermined people’s sense that the law provided them with some kind of economic safety net in their lives. He sifts his file caseload for modern-day horror stories to illustrate the withering of notions of fiduciary obligation in the provision and operation of pensions, health insurance, and other benefits necessary for a basic sense of security and wellbeing. It is easy to see how the increasingly elusive nature of such benefits for working class laborers has undermined their sense of trust or reliance on the legal and political system.

With varying degrees of success, Geoghegan vents on a number of other topics as evincing a rule of law in shambles. One is what he calls the deregulation of public space – that is, the end of far reaching equitable/injunctive relief by judges to achieve broad scale social changes in hospitals, prisons, parks, schools, and other institutions. Another is the purported disappearance of administrative law – Geoghegan claims that we are in something of a post-regulatory age, where administrative law has been neutered through a combination of deregulation and federal budgetary deficits that gut government’s capacity to do the necessary regulatory oversight. While it is difficult to disagree with his characterization of the government failing in its duty to conduct effective regulatory supervision, I would suggest that it was always a false hope that the state could ever oversee effectively the vast body of regulatory law that exists for virtually every field and agency. The author himself admits that it would take “a mandarin to learn” modern regulatory law; yet he wonders without irony why that law goes unenforced.

Geoghegan renders a searing indictment of the jury system. Wondering whether citizens are equipped to serve as effective jurors, he answers his own question in the negative, concluding that people are simply too stupid and poorly read to do the job. He is no less kind to the judiciary, who are every bit as arbitrary and unpredictable as juries in meting out justice. He initially suggests that the primary culprit is the absence of a unified legal culture; without a true majority party to control the mechanisms for putting judges and justices on the bench, we have a schizophrenic judiciary. The chapter fails to develop this theme, instead quickly morphing into a screed against all judges [*472] conservative. It is mostly a visceral attack on the Federalist Society or any judge failing to model herself after William Douglass or Thurgood Marshall. Geoghegan’s next target is the Constitution itself; he suggests that it is rendered illegitimate by how impossibly difficult it is to update or amend it. He invokes John Rawls, arguing that it is up to the courts to redistribute according to Rawls’ vision of Justice as Fairness (p.103). I find that basic Rawlsian notion problematic enough as philosophical principle; as a standard for constitutional jurisprudence, I would suggest its ambiguity renders it hopelessly inappropos.

Geoghegan ends the book with an explicit attack on the political system itself, in which he hits his polemic stride. He ultimately blames the law in shambles on what he terms the rule of the Fourth Republic. Since the ‘70s, our political system has been one of divided government, producing a breakdown in rule by consensus and the disappearance of “majority rule.” The result is dysfunction in each arm of popular government. The Senate is the burial ground for all progressive and right minded legislation, thanks to the filibuster and the very idea of equal representation in each state. In the House, it is the competition-killing practice of gerrymandering. In the Oval office, presidencies in an era of divided government are sure to be brought down, or at least neutralized, by an opposition party more interested in scandal and investigation than working with the President to get things accomplished. The result is a government of inaction that nevertheless is wholly immune from accountability.

After such a stinging critique, the suggested solutions are anti-climactic; Geoghegan urges resort to the process of litigation to achieve a return to real democracy; that is, sue for (1) an end to partisan gerrymandering, (2) the end of the filibuster, (3) electoral college reform, (4) eliminating all voter registration requirements, (5) a requirement that all states vote by mail, and (6) requiring the extensive teaching of civics in all high schools. This closing section feels perfunctory, lacking the passion of convictions that drives the earlier chapters. By the end, Geoghegan seems to have run out of energy to pursue solutions that have a constitutional foundation, or, for that matter, a modestly realistic chance of succeeding.

There are some exasperating aspects to the book. One is simply the tone. The Prickly Press model in this instance has produced a book stylistically more akin to a blog than a conventional publication. It is breezy, irreverent, and sardonic, and Geoghegan is an effective provocateur. Many are likely to find the writing style humorous and entertaining; it became increasingly grating to me as the book progressed. It is generously sprinkled with gratuitous shots at conservatives and others insufficiently endowed with a “progressive” sense of enlightenment. I found the frequent references to “assholes in Red states,” “nutty Federalist Society members,” and the like, off-putting. Unfortunately, such “unrestrained” writing may make it too easy for some otherwise fair-minded [*473] readers to dismiss ideas that are deserving of serious consideration.

More troubling is the complete absence of facts or evidence underlying the author’s various assertions. The essay clearly is intended as a Thomas-Paine like pamphlet, a provocative polemic unburdened by the usual morass of deadening footnotes and citations. But even as I tried to put aside my social scientist’s hat, I was unable to completely jettison my expectation that the central claims have some degree of support and be treated with some modest small dose of nuance and seriousness. The author’s tendency to toss about claims without attribution or support occasionally produces embarrassing factual errors. In support of Big Fact Number Two – declining voter turnout – Goeghehan put the turnout in the 2004 presidential election at 57%. According to the U.S. Census Bureau, 64% of all American citizens over the age of 18 cast a ballot in that election, a not insignificant difference of 7 percentage points (enough to plausibly argue that maybe folks aren’t tuning out all that much).

On a more significant point, Geoghegan’s argument hinges on a purportedly widespread “feeling” of economic insecurity and arbitrariness, leading people to question the very legitimacy of the law. Is this so? Intuitively it sounds right. But is there survey or poll data that might indicate how pervasive or deep is this subjective sense of peril among working and middle class folks? Or are Geoghegan’s conclusion drawn from the attitudes of his union members or client list of plaintiffs? If so, they are hardly representative. And even if people perceive a disconnect between their work and what that work brings them, does that really lead them to view the law as illegitimate? Perhaps this is true with respect to Congress, but as to the courts, judges, the Supreme Court? The lack of widespread outrage at BUSH v. GORE would suggest just the opposite. In the end, many of the author’s arguments end up tenuously resting on his moral indignation and his talent for a well-turned phrase, rather than reason and evidence.

Geoghegan’s book has a scattershot quality to it, lacking continuity or coherence across the chapters. At times, it feels as if the author is simply strewing the intellectual field with as many seeds of thought in hopes that some might actually put down roots. While prickly and provocative, the arguments cannot be pulled together into anything close to a cohesive or integrated condemnation of the law. At times, Geoghegan’s stances came perilously close to outright contradiction. So on one hand, he decries the modern turn to tort litigation. “[W]hen the rule of law really is in shambles, [tort is] what people get. When we have no contract, we get tort. And when we have no trust law, we get tort. And when we deregulate, we get tort” (p.50). Yet the remainder of the book reveals him to have wholly accommodated himself to tort law as he embraces litigation at every turn. Without irony, he rages at the Supreme Court of the State of Illinois for unanimously shutting down his litigation against hand gun makers. Many, if not most, of the outrages he documents seem [*474] to have grown out of a lawsuit straight out of his current or past caseload. His solutions for what ails our legal and political system invariably involve litigation as the path to redemption – sue to update the Constitution, sue to get more democracy, sue to get civics education in high schools, and so on. These are odd prescriptions given his earlier denunciation of the litigative process.

Another example – Geoghegan denounces the decline in voting and the withdrawal of Americans from civic life more broadly, and contends that we must find ways to bring citizens back into the political process. This comes on the heels of an earlier chapter in which Geoghegan has utterly eviscerated the jury system, primarily because he views people simply as too stupid to decide cases reasonably and rationally. Given his scathing assessment of the average person in the context of the jury room, it is difficult to see why we would want them much more involved in making political and electoral decisions.

There is much else with which to disagree, vigorously, in Geoghegan’s tract. His unshakeable faith in government as nanny state – able to assure that all our lives will be insulated from any danger, risk, or challenge to individual comfort – is heartwarming but naïve. His idealization of all things European is awkward, in light of recent embarrassments and difficulties across the ocean. He openly prefers Europe’s social democracy, its constitutions, its laws; he goes so far to say that if we simply had the laws and constitution of Europe, we would be exactly like Europe – that is to say, “act[ing] better and more morally” (p.142). Even his claim that we do not have enough democracy in this country is arguable. Some would blame our problems on just the opposite, that we have too much democracy, that it is the hyper-responsiveness of elected officials to their various constituencies that makes it impossible to get things done. I find Geoghegan’s distaste for anything popularly grounded to be troublesome. His loathing of juries, his preference for problem-solving through courts and judges rather than popularly elected institutions, his admiration for bureaucrats and bureaucracies, all undermine his populist rhetoric. It is no small irony that his path to revivifying the legitimacy of the law takes him through courthouses and agency conference rooms but avoids completely Congress and state legislatures. For law to be legitimate, it must at the least be firmly anchored in popular consent, which is hardly best achieved through judicial or bureaucratic fiat.

But in the end, I suspect that Geoghegan would receive my objections gladly as evidence of a successful enterprise. Ultimately, he is interested in this essay more in provoking thought and discussion than in necessarily persuading.

CASE REFERENCE:
BUSH v. GORE, 531 US 98 (2000).

© Copyright 2006 by the author, David K. Ryden.

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THE CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM, 1829-1861

by David P. Currie. Chicago: University of Chicago Press, 2005. 344pp. Cloth. $55.00. ISBN: 0226129160.

Reviewed by Ken I. Kersch, Department of Politics, Princeton University. Email: kkersch[at] princeton.edu

pp.465-469

David P. Currie, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, has been engaged for many years now in the hard labor of compiling a comprehensive history of constitutional argument within the core institutions of American government. He began this project with a two-volume history entitled THE CONSTITUTION IN THE SUPREME COURT (Currie 1992; Currie 1994). He subsequently moved on to the somewhat less familiar territory of THE CONSTITUTION IN CONGRESS. Previous volumes were THE FEDERALIST PERIOD, 1789-1801 (Currie 1997), THE JEFFERSONIANS, 1801-1829 (Currie 2001), and DEMOCRATS AND WHIGS, 1829-1861 (Currie 2005). He has now published a fourth volume in the series, DESCENT INTO THE MAELSTROM, 1829-1861. While this volume covers the same time period as the previous one, the earlier book emphasized that period’s first part, taking the demise of Henry Clay’s American System as its central theme. The present volume focuses on the period’s second half, and on constitutional contention over territorial expansion and slavery. Needless to say, from a constitutional perspective, this period is of considerable interest, since, at the time, constitutional politics were at the core of “ordinary” politics. That politics, of course, ultimately devolved into “constitutional failure,” and Civil War (See Brandon 1998).

The book marches through the constitutional debates of the period taking place in Congress more or less chronologically. The issues of slavery and territorial expansion were, in most cases, closely intertwined. The country’s acquisition of new lands – lands which, it was understood, were likely to ultimately be admitted to the Union as new states – repeatedly raised the question of whether slavery would be permitted in the newly acquired territory. Slave owners viewed the question as implicating constitutional rights to property (in the form of “chattel” slaves). Rights to democratic self-government were also implicated, as the question arose whether such rights could be abrogated by the federal government, under its constitutional authority to make laws governing the territories, or whether, instead, that power to determine the status of slavery might be held by the new inhabitants of that land (or state). As southerners saw it, moreover, the addition of each new state (or potential state) was heavily freighted with implications for the “domestic institutions” of the original southern states themselves. Slavery might not have been economically viable within many of the newly acquired territories. But many southerners were profoundly disturbed by the likelihood that the [*466] addition of new states either hostile to slavery, or indifferent to it, would, in time, permanently tip a sectional balance of power in Washington that had been painstakingly calibrated since the Founding. If this came to pass, southerners understood that it would have broad-ranging effects, both on slavery in the original southern states, and on everything they as a region cared about distinctively in political and economic life. In this context, debates about the nature of the constitutional compact, constitutional rights, natural rights, federal powers, and the meaning of democracy, were at the core of what Americans cared about most, and constitutional argument was taken extraordinarily seriously. The specific disputes Currie covers – the reception of antislavery petitions in Congress, the efforts to bar abolitionist literature from the mails, the acquisition of Texas and the territories acquired in the Mexican War, the Fugitive Slave Question, the Wilmot Proviso, the Compromise of 1850, the Kansas-Nebraska Act, Bleeding Kansas, the Lincoln-Douglas Debates, and secession, amongst others – will, in many cases, be familiar to readers with a basic grounding in the history of the period. The book takes up issues other than slavery as well, including the Dorr Rebellion in Rhode Island, various disputes over the respective foreign relations powers of Congress and the President, and Mormon polygamy. Each is discussed in chapters broken into sub-headed sections by topic.

Currie has performed useful yeoman service in plowing through thousands of pages of the Congressional Globe (the predecessor to the Congressional Record) and culling from it what appear to be all the constitutional arguments made by members of Congress in the period. As Mitchell Pickerill has noted in a review of Currie’s previous volume in this series, there is much here besides congressional floor debates as well; for example, Currie often provides us with the positions taken by the Executive Branch, and charts the back-and-forth between Congress and the President over the meaning of the particular constitutional provision or principal at issue. DESCENT INTO THE MAELSTROM is a work of scholarship using original historical sources. Scholars will appreciate Currie’s extensive footnotes to these, which will provide a useful point of entry for those who hope to undertake their own original work in the period.

Currie’s account of what was said on the floor of Congress is inclusive not only of the most plausible of constitutional contentions, but also of some the most fanciful. Currie’s kitchen-sink approach has its virtues. But, in many cases, he is not particularly good at taking care to put these arguments in context. He prefers instead to take them on one-by-one as a judge, either praising or damning them. Currie’s lawyerly posture throughout is likely to annoy the more historically inclined, who may prefer knowing how a particular argument fit into a broader vision of a political party, or a particular political figure, or whether, for example, it might be related to the need to serve some constituency, or react to a political event, or to some social or cultural understanding, to whether Currie thinks [*467] the lawyer arguing at the bar before him has impressed the hard-nosed Professor of Law as an admirably subtle analyst of constitutional questions or, instead, as a worthless, damned fool.

Currie’s book may be useful. But readers should be warned that it is also, in many respects, bizarre. Currie is an extraordinarily prolific scholar. And, in DESCENT INTO THE MAELSTROM, it shows. Much of this book is not so much written as banged out. The prose is artless, plodding, and pervaded by clichés (“The fireworks began” (p.6); “No sooner was the ink dry” (p.20); “Pandemonium . . . ensued” (p.20); “The House was tied in knots” (p.20); “Politics makes strange bedfellows” (p.28) – to take only a few examples from the first thirty pages). Topic sentences are rarely put to their proper use in guiding the reader’s attention. The headings and sub-headings Currie has chosen are of little help in this regard, either. Chapter Two, for example, is entitled “South Carolina, Arkansas, and Liberia,” with the sub-titles “Stopping the Mails,” “Michigan,” “Arkansas,” “Colonization,” and “Exclusion.” Chapter Three is entitled “O Canada!” with one subsection entitled “McLeod.” If you want to know what any particular chapter or section is about, you will need to sit down and read it. In many places, one suspects that the author, instead of taking care to shape the analysis, has simply typed whatever happened to have been printed on his notecard. He tells us in one passage, for example, that “Morris of Ohio, Niles of Connecticut, Wall of New Jersey, Hubbard of New Hampshire agreed. So did King of Georgia, King of Alabama, Gundy of Tennessee, Kent of Maryland, and Henry Clay of Kentucky” (p.7). But he does not give roll calls in the text for most of the debates. And we have no idea from the discussion leading up to this tally who these people are. There is, to be sure, a perfunctory glossary at the back of the book with their birth date, death date, party affiliation, and years of service, if you want to look it up. But, given that Currie provides little context for assessing the significance of these attributes, what’s the point?

Then, as I have hinted above, there is that idiosyncratic (and, in many places, truly odd) authorial presence. Currie not only presents the various constitutional arguments (and other political decisions) made during the period under study, but hovers obtrusively above them, providing a running commentary, often in light of contemporary developments and outside touchstones that are wholly anachronistic. So: “Chairman Brezhnev would have been proud” (p.8); “On it face, the President’s [Andrew Jackson’s] initial proposal seems modest enough. Incitement to crime has never been considered high-value speech for first-amendment purposes. Holmes and Learned Hand both condemned it, and for good reason. Yes, I know about Brandenburg” (p.26); “As an interpretation of the supremacy clause . . . this is flat drivel” (p.45); “I don’t know how this argument strikes you, but I find it rather chilling” (p.97); “Still no dice, I think. It may have been dirty pool to smuggle a major land grab into an ostensibly innocuous boilerplate bill for the collection of customs [concerning the Texas border town of Corpus [*468] Christi], but it was no less the law for all that. It is the responsibility of Representatives and Senators to know what they are voting for” (p.109); “Pierce and Buchanan: two peas in a pod. A Pair of second-rate doughfaces at best” (p.127). To be sure, I found many of Currie’s snap judgments persuasive – he is manifestly a learned constitutional lawyer. Still, this is not what one expects to be distracted by in a work with ambitions to serve as a definitive scholarly reference.

Few, I think, will want to (or be able to) read this book through. Aside from the bad writing and distracting authorial presence (the latter of which might be defended as a failed attempt to liven things up), the book has no real theme or argument, aside from the contention that much of the constitutional argument of the period took place on the floor of Congress, and that that argument centered around questions of slavery and expansion. As such, there is no narrative thread to carry the reader along. The book’s value will be as a reference for readers looking for a descriptive account of the constitutional arguments advanced in Congress (and by other extra-judicial political figures) involving the particular political or constitutional controversy that happens to interest them. Readers will want to dip in and out, as the need arises. Currie’s cryptic chapter titles and sub-headings won’t make this easy. But the book does have an index.

There has been a growing interest in recent years amongst law and courts scholars in reviving the scholarly tradition that once recognized that constitutional debate and deliberation takes place, not just in the Court, but also in the nation’s populace and its political branches. A case can be made that they – and those with a substantive interest in these years – will find DESCENT INTO THE MAELSTROM worth having on their shelves.

REFERENCES:
Brandon, Mark E. 1998. FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE. Princeton: Princeton University Press.

Currie, David P. 1992. THE CONSTITUTION IN THE SUPREME COURT: THE FIRST ONE HUNDRED YEARS, 1789- 1888. Chicago: University of Chicago Press.

Currie, David P. 1994. THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986. Chicago: University of Chicago Press.

Currie, David P. 2001. THE CONSTITUION IN CONGRESS: THE JEFFERSONIANS, 1801-1829. Chicago: University of Chicago Press.

Currie, David P. 1997. THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801. Chicago: University of Chicago Press.

Currie, David P. 2005. THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861. Chicago: University of Chicago Press. [*469]

Pickerkill, J. Mitchell. 2005. Review of THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861, Law and Politics Book Review 15: 954-958.

© Copyright 2006 by the author, Ken I. Kersch.

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UK ELECTION LAW: A CRITICAL EXAMINATION

by Bob Watt. London, UK: Glasshouse Press, 2006. 264pp. Paper. £22.95/$42.81. ISBN: 1-89541-916-X.

Reviewed by Lori Ringhand, University of Kentucky College of Law, Lexington, KY USA. Email: lring2 [at] uky.edu.

pp.462-464

In a democratic system of government, two types of political questions must be resolved. There are the day-to-day questions of policy preferences: Do I support tougher environmental regulations, or do I believe such regulations would result in an unacceptable loss of jobs? Should my school district raise local taxes to increase teacher salaries? Who do I want to be my Senator? But antecedent to these policy questions is a group of more fundamental questions, involving regulation of the political process through which the day-to-day policy issues are decided: Should political party primaries be open to all voters or only registered party members? How should election campaigns be financed? Who should determine the boundaries of electoral districts?

These latter questions form the heart of election law – the laws used to govern the political process itself. There is a notable variety, however, in the election laws adopted by different democratic nations. This makes comparative work in this area particularly useful. Bob Watt’s UK ELECTION LAW: A CRITICAL EXAMINATION provides an excellent opportunity for such comparisons.

Watt sets out to examine recent changes to British election law, including experimentation with alternative voting methods, increased regulation of campaign financing, and new restrictions on political advertising. Much of his assessment is insightful, and there is a great deal here that should be of interest to scholars of election law, inside and outside the UK. Before embarking on his analysis of these specific issues, however, Watt lays on the table his ideological approach to the entire field of election law. Election law, he says, must promote a “democratic” rather than a “market” theory of politics. This dichotomy – between regulations that reflect a “democratic” approach to electoral politics and those that reflect a “market” approach – underlies Watt’s entire analysis of Britain’s regulatory scheme.

In one sense, there is nothing wrong with this distinction, and there certainly is nothing wrong with Watt’s decision to reveal his ideological preferences up front. He states, quite correctly, that “election law is not black letter law; it always has a political purpose” (p.1). Watt’s plain statement of this fact is refreshing: too often scholars (and judges) write about election regulations as if they can be evaluated in a vacuum, without any preexisting commitment to a particular vision of what “democracy” entails. But of course the most pressing questions in election law today – questions, for example, about what type of campaign financing “corrupts” the electoral process, or what factors should and should not be considered when creating electoral districts – simply cannot be answered without reference to some background notion of what democracy itself means.

Watt’s difficulty, then, is not that he has and states a preferred vision of democracy. Rather, it is that his presentation of his preference presupposes away many of the most difficult questions in this area of law. Consider his choice of terminology. Watt states in the introduction that his ideological preference is for a “democratic theory” rather than a “market theory” of politics. A “democratic” society, he says, “is one in which all members of society have a stake in deciding upon the common good” (p.21). A “market” society, in contrast, is one in which “each person individually takes delivery of what they ‘need and want’” (Id.). Thus, markets are “mechanisms for aggregating individual demands and facilitating the fulfillment of individual goods” (p.21), while democracies are “mechanisms for ensuring the collective good” (p.21). A “democratic” theory of politics is therefore by definition one which encourages citizens to work together for the common good of society.

Watt may very well be correct that his vision of democracy – one in which citizens and elected officials work in furtherance of some external, ascertainable public good rather than pursue their personal self-interest – is the vision of democracy that election law should promote. But to a priori attach the label “democratic” to this particular construction of democracy defines away volumes of scholarship debating the relative merits of pluralism versus civic republicanism. UK ELECTION LAW would have been enhanced by more in-depth consideration of the deeply contested nature of the very concept of “democracy” promoted here.

Having established his preferred vision, however, Watt is a persuasive advocate for it, and his book offers a valuable guide to recent developments in British election law. Britain has experimented far more than many countries, including the United States, with certain aspects of election regulation, such as Internet-based or other types of “remote” voting, limitations on campaign spending in addition to campaign contributions, and party control of “spoiler” candidates. Watt’s discussion of each of these issues is lucid and informative.

In regard to remote voting, Watt poses important questions about ballot secrecy and social control. For example, he is concerned that employers, spouses, or others will be empowered by remote voting to manipulate the ballot choices of those who are emotionally or financially dependent on them. His discussion of Britain’s choice to limit campaign expenditures also is thought-provoking, and highly relevant to U.S. scholars, given that this type of regulation is once again currently before the U.S. Supreme Court in RANDALL v. SORRELL, a case challenging the constitutionality of a Vermont law imposing similar restrictions on campaign spending. Finally, Watt’s discussion of “spoiler” candidates, while drawing some very fine lines between candidates a party can properly keep from co-opting its name (candidates whose only purpose is to “trash” or mock the electoral process) and those it cannot (candidates who are merely internal party dissenters) is particularly valuable. The ability of political parties to control who appears on the ballot under their name raises numerous complex issues, and comparative study in this area is sure to be useful.

At times, however, it is tempting to wonder if Watt’s commitment to civic republicanism leads him to compare an idealized past to what he sees as an increasingly troubling present. The clearest example of this can be found in his treatment of the use of communication technology in elections. Watt opposes the distribution of political information on the Internet. The Internet, he says, atomizes voters, cutting them off from the vigorous public debate that (apparently) occurs elsewhere. The posting of campaign materials on the Web is particularly offensive, because, according to Watt, making political information available on the Internet will lead to a reduction in more traditional campaign communications such as broadcasts and literature distributions, thus reducing the quality and quantity of political debate.

Watt may be correct: the Internet and similar technologies may discourage the type of public dialogue he believes should inform politics. But they may not. It seems at least plausible that the Internet provides a lively, vital forum for pointed and vigorous political debate, a forum far less threatening and far more accessible to many people than the traditional public debate Watt prefers. Watt’s vision of democracy seems, unfortunately, to blind him to this potential of technology to distribute information widely and inexpensively, to reach otherwise disenfranchised voters, and to stimulate political discussion among young, web-savvy citizens.

There is one final area in which Professor Watt’s book will be useful to non-British scholars. There is an ongoing debate, particularly lively in the United States, about who should have the final say in developing and evaluating election laws: should the regulation of politics be left to politics, or should it be put in the hands of judges, presumed to be removed from the political fray? Watt comes down decisively against the politicians. Election law, he implies, is simply too important to be left in the hands of elected officials. The “most telling criticism that can be leveled against the electoral law of the United Kingdom,” he says, is that it is “the offspring of parliament” (p.120) – a product of politics. Many people question whether unelected officials will do any better. Nonetheless, Watt’s approach to this issue, like much of UK ELECTION LAW, adds a well-informed and useful comparative aspect to our discussion of these issues.

CASE REFERENCE:
RANDALL v. SORRELL, (#04-1528) (2005), Argued 02/28/2005.

© Copyright 2006 by the author, Lori Ringhand.

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GLOBAL ANTI-TERRORISM LAW AND POLICY

by Victor V. Ramraj, Michael Hor and Kent Roach (eds). Cambridge: Cambridge University Press, 2005. 664pp. Hardback. £90.00/$160.00. ISBN: 0521851254.

Reviewed by Clive Walker, Centre for Criminal Justice Studies, School of Law, University of Leeds. Email: law6cw [at] leeds.ac.uk

pp.457-461

Assuming that late modern society can be characterised as a ‘risk society’ (Beck, 1992), the threat of terrorism must be counted as one of the defining characteristics of our risk-ridden epoch. Terrorism dominates news headlines, results in the redesign of state apparatus and consumes increasingly large portions of public budgets. Terrorism is even the trigger for wars between, or at least upon, states and for more fanciful claims of the emergence of “the first war of the 21st century” against the very conception (Bush, 2001). Both the threat and the response seem to be pervasive, with impacts in all sectors of society, from new and costly military hardware to health protection against biological or chemical weapons. These emanations resonate in each and every jurisdiction throughout the world.

In these circumstances, a book with the majestically sweeping title of GLOBAL ANTI-TERRORISM LAW AND POLICY appears well-suited to our times. The book is indeed majestic in many respects, and the editors, Victor V. Ramraj, Michael Hor and Kent Roach, are to be congratulated on tackling such a large agenda and in bringing the project to fruition, from its origins in a conference in 2004, within a relatively short space of time. Their overall objective is primarily descriptive rather than programmatic – “to contribute to the growing field of comparative and international studies of anti-terrorism law and policy . . . to examine and compare anti-terrorism laws and policies in many of the major jurisdictions” (p.1). Because of the descriptive approach, there is no overall concluding chapter (and no bibliography); nor is there any pervasive format or normative stance . A few chapters do subject the anti-terrorism laws to a rights-based audit (largely ignoring at the same time hard data about other operative criteria such as effectiveness). Others are content with conveying information about laws and policies. The book therefore is better viewed as a conduit whereby national representatives “simply talk to each other” about the problems of terrorism rather than “learn from each other” (p.10). Nevertheless, the individual chapters are, for the most part, well-written, adequately referenced, and embody some valiant attempts by the editors and contributors to make cross-references where appropriate.

The substance of the book might be divided into two elements. The initial element (Parts I and II) adopts a thematic approach. Part I commences with two thoughtful chapters (by Donoghue and Lim) about the concept of terrorism. The next two offerings are also conceptual in nature but somewhat less original. Both authors retread the published arguments of Oren Gross (2003) and fellow travelers (notably [*458] Alan Dershowitz 2002) that the exceptional threat of terrorism should result in legal adjustments, such as under the ‘Extra-Legal Measures’ model, whereby public officials are allowed to run roughshod over normal legal restraint and thereby can apply, for example, forms of normally unacceptable behaviour to coerce information about a ticking bomb. This scenario has triggered a vast legal debate in the US. It is given added piquancy by the knowledge that the scenario is far from academic but is practiced daily in Abu Ghraib prison and the Guantánamo detention camp, the inhuman and degrading aspects of which are excused or ignored by prominent apologists. The debate is not much advanced here, and some readers will feel irritation that painful lessons cannot be learnt from the history of others, not only the Israeli experience but also the seminal discussions around the Parker Report (1972). No official should act under a doctrine of legal condonation, and one should not confuse a possible defence of necessity with such a doctrine. Surely legislators have enough experience with terrorism to be able to speak with certainty under the rule of law before the need for action. Those officials who wish to ignore their clear constraints kid themselves that they are acting for the good of society.

A thematic chapter about approaches to constraint and review would have been very helpful. Ramraj (Chapter 6: ‘Terrorism, Risk Perception and Judicial Review’) attempts to make a narrower point – that judicial review is a “crucial institutional safeguard against policies motivated primarily be fear” (p.108). More crucial than restraint imposed within the executive? More crucial than restraint imposed by the legislature? One can easily foresee problems for judicial enthusiasts, such as access to sensitive information, as well as the ambit and timing of the litigation which gives rise to the opportunity for intervention. In reality, there exist shortcomings in depicting any of the branches of the state as the premier champions of liberal democracy, but it is hard to accept the bald assertion that “[n]either the legislature nor the executive has an institutional expertise in rights” (p.123). What might be true in a one-party state such as Singapore might be less evident, say, in the United Kingdom, where the Human Rights Act 1998 was designed by Ministers and officials rather than any independent commission of lawyers, and where the parliamentary Joint Committee on Human Rights (including such luminaries as Lord Anthony Lester) is far from an also-ran in rights know-how.

Part II contains a number of other thematic chapters that look into areas of policy. These include an excellent and perceptive overview by Kent Roach into ‘The Criminal Law and Terrorism’ (Chapter 7). There are other useful contributions on financing (Chapter 9 by Kevin Davis), technology (Chapter 10 by Mary W.S. Wong) and maritime security (Chapter 12, Robert C. Beckman). Of rather more limited utility and interest (since they are mainly confined to the minutiae of one jurisdiction) are the offerings on asylum, immigration and nationality law (Chapters 8) and aviation law (Chapter 11). [*459]

Moving on from these themes, the bulk of the book (Chapters 13 to 27) consists of a whistle-stop tour of regional and national jurisdictions. Within Asia (Part III), there is reporting of Singapore and Malaysia, Indonesia, the Philippines, Japan, India, and Hong Kong. Part V turns ‘west’ towards the United Kingdom, the United States, Canada, Australia and New Zealand. Part VI deals with several African jurisdictions (South Africa and assorted east African states), some Arab countries, plus Argentina. The regional coverage (Part IV) consists of Association of Southeast Asian Nations and the European Union, though Chapter 26 on the Arab states does usefully relate the details of the Arab Convention on the Suppression of Terrorism 1998.

The survey shares many of the delights and drawbacks of a whistle-stop excursion. On the one hand, useful insight is given into previously inaccessible terrain (Chapters 14 and 16 on Indonesia and Japan might fall into that category), and one duly marvels at the unexpected and unusual. On the other hand, one is forced to be selective about the sites of interest. For example, why visit Hong Kong but not Pakistan or Saudi Arabia? Why New Zealand but not France or Spain? Why Uganda but not Somalia? Why Argentina but not Colombia? At a regional level, there is rightly an excellent survey of European Union activity (Chapter 20), but not the work of the Council of Europe, which has occupied the field for much longer and has often set standards which the European Union has merely copied. Furthermore, one’s visit is touristic, without time to linger or delve too deeply. As a result, some of the chapters are highly selective or unduly sweeping in their generalisations. To take an example, the description of the UK’s anti-terrorist legal policy (Chapter 21) concentrates on the issue of detention without trial under Part IV of the Anti-terrorism, Crime and Security Act 2001 (now repealed). Important though this measure was, both as a symbol and as a lived experience for those 17 suspects unfortunate enough to be certified under Part IV, to pass over without mentioning special powers of arrest and stop and search is to miss out on the much more pervasive experience of the legislation and its main usage. The pattern is repeated in several chapters, where the issue of definition seems an abiding concern; whereas more operative parts – the purposes to which the definition is actually put, such as powers of arrest and detention – are barely touched upon. Likewise in Chapter 21, to represent the Terrorism Act 2000 as a wholly retrograde step compared to previous legislation (p.459) because of its extension to international terrorism is to misunderstand the extent to which the previous legislation had been adapted to non-Irish purposes by amendments in 1984 and 1989 which were far from ‘minor’ and also to ignore other changes brought about by the 2000 Act which secured, for example, the abolition of exclusion orders and the subjection of proscription and police detention powers to independent review.

Aside from the difficulties of balancing breadth and depth, some other shortcomings emerge. The book is heavy on technical law but is less illuminating on policy. The question is asked by the [*460] editors whether “a comprehensive all-risk approach to human security” would be more rational than a concentration on a ‘coercive’ approach (p.8). The question probably posits a false policy choice – in reality, the issue is not an alternative strategy but an additional tactic in an overall strategy (such as the UK’s CONTEST policy which is nowhere mentioned). Yet, aside from the chapters by Kent Roach (Chapters 7 and 23), plus some indication in the US text (Chapter 22) that there has been an enormous administrative upheaval to produce the Department of Homeland Security, there is no exploration or answer. The issues of strategy, contingency planning, organisational change and securitisation are passed over by most other contributors, despite their evident importance to both law and policy. The growing trend of designing the instruments of society by reference to security rather than, say welfare, certainly merits more attention than accorded in this book, especially as it diverts from other pressing social policies, inflicts ruinous expense and triggers, through the inconvenience and intrusion of security, constant reminders of our insecurity (Walker and Broderick, 2006).

Another irritation is that just as 9/11 produced ‘Ground Zero,’ so many of the contributors seem to treat 9/11 as year zero. Exceptions are the chapter on Malaysia and Singapore (Chapter 13, which conversely reports surprisingly little from recent times concerning action taken against Islamists and migrants) and Chapter 27 on Argentina (which differs from all other chapters by its focus on past state terrorism rather than sub-state terrorism). It is true that the United Nations Security Council Resolution 1373 of 28 September 2001 gave a substantial impetus to the passage of new legislation. But laws and policies did actually exist beforehand in most jurisdictions, whether in the shape of the Parker Report (mentioned above) or the ability to question under oath (compare Explosive Substance Act 1883 (UK), section 6, and p.519). There is but one bare mention of the important works of Clinton Rossiter (p.490) but apparent unawareness of theorists such as Paul Wilkinson. It is bizarre and perhaps indicative of the destabilising impact of terrorism that Carl Schmitt should merit more reverence (in Chapters 4 and 5).

A final shortcoming is that, although billed as ‘global,’ the book is less than comprehensive. Some selection at a national and regional level is to be expected, but the grounds for it could be better articulated, and it is even more difficult to understand the omission of several truly global aspects of anti-terrorism law and policy. While there is reference to the United Nations Security Council Resolution 1373, there no assessment of the work of the Counter-Terrorism Committee or the interplay between its work and the Human Rights Committee. Equally on a global scale, the book is almost entirely silent about the laws of war (there is brief mention of the doctrine of pre-emptive strike in Chapter 22), despite the controversies concerning their impact, whether on the battlefields of Afghanistan or on the prisoners held in Guantánamo Bay (Duffy, 2005), or perhaps hidden away in the even darker recesses of CIA-operated real estate (Council of Europe [*461] 2006). There is also no discussion of the role of such global players as the G8 or Interpol.

Given the hefty size and hefty price of this book, it is perhaps most suited as a reference work for libraries. Some of its thematic chapters are valuable, but its jurisdictional surveys offer at best partial introductions to some of the complex range of legal activities in response to terrorism.

REFERENCES:
Beck, Ulrich. 1992. RISK SOCIETY: TOWARDS A NEW MODERNITY. London: Sage.

Bush, George W. 2001. “Bush, G.W., News Conference.” THE WASHINGTON POST, 14 September 2001, C12.

Council of Europe Parliamentary Assembly. 2006. “Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States.” AS/Jur(2006) 16 Parl.II.

Dershowitz, Alan M. 2002. WHY TERRORISM WORKS. New Haven: Yale University Press.

Duffy, Helen. 2005. The ‘War on Terror’ and the Framework of International Law. Cambridge: Cambridge University Press.

Gross, Oren. 2003. “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” 112 Yale Law Journal 1011–1134.

Parker Report. 1972. “Report of the Committee of Privy Counsellors Appointed to Consider Authorised Procedures for Interrogation of Persons Suspected of Terrorism” (Cmnd. 4901). London: Her Majesty’s Stationery Office.

Walker, Clive, and James Broderick. 2006. THE CIVIL CONTINGENCIES ACT 2004: RISK, RESILIENCE AND THE LAW IN THE UNITED KINGDOM. Oxford: Oxford University Press.

© Copyright 2006 by the author, Clive Walker.

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THE LAW OF ARMED CONFLICT – CONSTRAINTS ON THE CONTEMPORARY USE OF MILITARY FORCE

by Howard M. Hensel (ed). Ashgate Publishing, 2005. 280pp. Hardback. $89.95/£50.00. ISBN: 0754645436.

Reviewed by David Wallace, Department of Law, United States Military Academy, West Point, New York. Email: David.Wallace [at] usma.edu.

pp.454-456

Howard Hensel’s book, THE LAW OF ARMED CONFLICT – CONSTRAINTS ON COMTEMPARY USE OF MILITARY FORCE, is a welcome addition to the body of literature on the Law of Armed Conflict, also known as International Humanitarian Law. Hensel’s book is a collection of scholarly articles addressing a wide range of contemporary issues regarding the application of customary international and treaty law related to the use of armed force in the 21st century. All of the articles in the volume are thoroughly researched, and highly readable. The articles are preceded by an insightful introduction in which Hensel not only briefly summarizes the contributions of the authors contained in the book, but offers his own valuable insights into the development of the law in this area.

In Chapter 1, Gregory Raymond considers the overarching principle of military necessity in the Law of Armed Conflict. More specifically, he examines the formation and decay of legal norms that justify acts of violence through appeals to military necessity. Raymond first defines and explains the core concept of “military necessity,” traces the international legal norms pertaining to its use, and follows with an analysis of the impact that the current administration’s national security strategy in the global war on terrorism will have on those norms. Raymond thoughtfully acknowledges that the use of terrorism as an existential security threat may reverse the historical trend toward a more restrictive interpretation of military necessity as a defense. Although relatively brief, Raymond masterfully highlights key issues of military necessity in the current national security environment.

In Chapter 2, Catherine Lotrionte considers the issue of targeting regime leaders during armed conflicts. Lotrionte evenhandedly discusses the propriety of killing regime leaders as a possible option during hostilities. She begins her analysis with an interesting discussion of the history and legality of targeting regime leaders. What the reader will like most about her article is her clear delineation of the arguments for and against targeting regime leaders. For example, she argues that the advantages of such killings are as follows: (1) assassinations may preclude greater atrocities; (2) may produce fewer military causalities than a full-scale war; (3) may prevent fewer victims from becoming collateral damage to armed conflict; (4) may effectively disrupt the brutal activities of the leader and his regime more than conventional conflict; (5) may leave no prisoners to become causes for reprisal or blackmail scenarios; and (6) may disrupt command and control which could prevent the use [*455] of weapons of mass destruction. Likewise, Lotrionte outlines several counterpoints, including the contention that assassination is morally questionable, could result in the loss of domestic and international legitimacy, may result in retaliatory attempts, could lead to international or regional instability, and might be very difficult to accomplish. Finally, Lotrionte thoughtfully provides policy makers with specific criteria to consider when making the decision to target and kill an enemy regime leader. Lotrionte’s work adds a framework and clarity to a timely and important debate.

In one of the most comprehensive treatments that I have ever read on the topic, Howard Hensel addresses the topic of the protection of cultural objects during hostilities in Chapter 3. Hensel expertly analyzes and evaluates the international community’s efforts to protect cultural property during an armed conflict. More specifically, he puts the issue of cultural property protection within the larger context of questions relating to the degree to which law of armed conflict standards are universally applicable, or should, in Hensel’s words, be dependent upon such situational considerations as the nature of the conflict and the relationship between the belligerents. The chapter considers, in depth, the various efforts by the international community to protect cultural property in a conflict. Fittingly, Hensel addresses the current customary and conventional law for protection of cultural property and its likely potential for success for future conflicts.

In Chapter 4, Mika Nishimura Hayashi considers alternative views concerning the protection of civilians during an armed conflict, including the apologetic (realistic) and utopian (idealistic) perspectives of the principle. She delineates how the failure to synchronize law and actual behavior has led a number of commentators to negate the principle of civilian protection. She specifically references the periods after the two World Wars to illustrate her point. Second, she insightfully reviews how current scholarship has come to accept a certain distance between the principle of civilian protection and actual behavior of belligerents. Hayashi specifically notes that the majority of contemporary scholars are aware of the importance of maintaining balance between normative standards and reality. Hayashi’s article is a valuable contribution to the literature on one of, if not the, most important principle of International Humanitarian Law.

Next, Francoise Hampson considers contemporary issues related to the status of prisoners-of-war and detainees during armed conflicts and examines the international legal norms regulating detentions and transfer of prisoners during the war on terror. Although various legal norms address these issues, he deliberately focuses on International Law. He also considers the status of different categories of detainees and the rights flowing from such status. Hampson does not address the controversial issues regarding the conditions under which some detainees have been held or their treatment. Hampson raises a number of very interesting issues in his piece. Of note, [*456] he discussed the applicability of the Law of Armed Conflict in relation to human rights law. He also critically explores some of the official positions taken by the US Government under International Law in relation to the individuals held in Afghanistan and Guantanamo Bay.

In Chapter 6, George Andreopoulos considers the implications of the status and accountability of armed groups under the Law of Armed Conflict and addresses the relevant legal framework governing such groups, in particular, International Human Rights Law and International Humanitarian Law. Additionally, he discusses developments associated with the war on terrorism that have contributed to restrictions of the relevant normative space and their implications. Finally, he considers the prospects for promoting accountability among armed groups. Andreopoulos’ essay is very interesting in a number of respects. First, he clearly and succinctly articulates the similarities and differences between International Human Rights Law and International Humanitarian Law. Although much has been written on whether the war on terrorism more appropriately fits under a “war” paradigm or “law enforcement” paradigm, Andreopoulos, once again, brings to the surface the significant tension between the two different frameworks and advocates better implementation of existing normative structures, rather than further codification. More specifically, he proposes a “soft law” document that incorporates already existing norms to be used as a frame of reference for engagement initiatives with armed groups. According to Andreopoulos, the soft law document would be premised on growing interdependence between International Human Rights law and International Humanitarian Law. Such creative thinking makes Andreopoulos’ essay a very interesting read.

The volume concludes with Richard Falk providing valuable insights on the application of the Law of Armed Conflict with the war of terrorism. Of note, Falk argues that “there are restraints embodied in the law of armed conflict that seem as important as ever to maintain and there is no excuse for discarding the whole of international humanitarian law because some parts may require and justify adjustment” (p.245).

In summary, this volume skillfully brings together a group of extraordinarily talented commentators to consider some of the normative and legal challenges associated with the law of armed conflict. The articles, taken together, will contribute substantially to readers’ understanding of this important set of issues.

© Copyright 2006 by the author, David Wallace.

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THE HANGING OF EPHRAIM WHEELER: A STORY OF RAPE, INCEST, AND JUSTICE IN EARLY AMERICA

by Irene Quenzler Brown and Richard D. Brown. Cambridge, MA: Harvard University Press, 2003. 408pp. Hardcover. $26.95/£17.95/€24.90. ISBN: 0674010205. Paper (2005). $15.95/£10.95/€14.80 ISBN: 0674017609.

Reviewed by John Brigham, Department of Political Science, University of Massachusetts, Amherst. Email: brigham [at] polsci.umass.edu

pp.450-453

When THE HANGING OF EPHRAIM WHEELER, about the last execution for rape in Massachusetts, came in the mail, I had been reading Gustavus Myers’ classic HISTORY OF THE SUPREME COURT, which was written in 1912. Unlike contemporary liberal commentators, Myers links the rise of great wealth and the brutal punishments in the early colonial period to the establishment of the American system of property relations, the rule of law and, ultimately, to the creation of the Supreme Court.

The punishments of branding, whipping and execution that characterized the Puritan colonies and lasted until some time after the Revolution have had particular meaning lately as we try, after Foucault, to understand how authority is wielded in their absence. While the inequalities characteristic of a rise in great wealth have intensified, the public brutality associated with their initial emergence has diminished. Even in the reign of the war on terror, most punishment is hidden and unofficial.

The book on Ephraim Wheeler’s hanging in 1806 seemed particularly apt for trying to understand the transformation in styles of American punishment that has taken place since colonial times. American society has moved from public corporal punishment – in particular what the colonial reformers called “sanguinary laws,” which included death by hanging. Of course, the movement has not been so far and fast as they have moved in much of the rest of the world, but there has been movement to imprisonment and the new penal considerations identified by scholars from Beccaria and Blackstone to Foucault.

Post Revolutionary Western Massachusetts has a special place in jurisprudence for its role in the constitution of American democracy. This area where I am fortunate to work was an exciting place around 200 years ago. It spawned Shay’s Rebellion and raised a number of questions about the new constitutional structure. Just as Shay’s Rebellion was vivid in 1806, many of the aspects of social life present at that time have contemporary manifestations. The house where one of the judges lived in Wheeler’s day stands as the Historical Society in Amherst. The Supreme Judicial Court of Massachusetts still travels to the countryside for sessions, and there is still a Sullivan prosecuting attorney.

The Wheeler book comes from Harvard University Press, a part of another of the institutions of Puritan Massachusetts that [*451] has survived in modern America. Once a colonial seminary, Harvard now thrives in a form that is called “private.” Its press is important, and the picture of punishment it presents in this book, though popularized, has a certain gravitas. The authors’ recount being inspired by Natalie Zemon Davis’ RETURN OF MARTIN GUERRE. And, like this successful book about a French trial, THE HANGING OF EPHRAIM WHEELER is full of popular period pieces. The combination of authority and popular appeal is a feature of work from The Belknap Press of Harvard University Press.

Each chapter of the book begins with an extensive quotation from a primary source, which becomes the basis for the narrative. This is a useful device that helps draw attention to the importance of documentary material in preserving the details of this narrative over two centuries. The quote for Chapter 2 on “The Trial” is extensive. It is from a letter to a Virginia paper of the period that comments on the sentence of death, the crime of rape and the prospects for publishing the transcript of the trial.

Chapters are organized dramatically, with one for the daughter who accuses her father of rape, one for the wife, and one for the condemned man. Each portrays aspects of colonial social life that help us to see that various archaic and little discussed cultural institutions supported the last hanging in Massachusetts. One of those institutions is indentured servitude where orphaned children were all but enslaved to masters for extensive periods. In the case of the condemned, Ephraim Wheeler, it was to a brutal shoemaker. Tales of brutal punishment inflicted privately on Wheeler until he left at 21 mirror the brutal punishment that will be enacted upon him by the state as an adult.

At times the narrative by Irene Quenzler Brown and Richard D. Brown jarringly juxtaposes very early 19th century morality and contemporary values, as when the authors speak of “family violence” and of actions resonating “across time” (p.6). We are currently interested in family violence, and sometimes that lens hypes aspects of Wheeler’s trial and makes the treatment seem a bit ahistorical. On the other hand, the evident public outrage over sexual relations with his daughter that led to Wheeler’s execution is certainly comprehensible today. The racial aspect of the case is handled with considerable understatement, and, as the authors assert, would have been appropriate for the time. Wheeler’s wife Hannah, one of his accusers, is described as “a woman of mixed racial ancestry” who was “taken to be white” (p.269). The book’s contention is that nothing is made of race during the trial.

The historically self-conscious “Aftermath,” where the historian’s craft is on the surface, seems more satisfying in this regard. Here, the political battles between Federalists and Jeffersonians are represented vividly. And, in the context of the time, we are presented with examples of early anti-capital punishment advocacy, which successfully limited the use of execution in Massachusetts. We learn of the judicial embarrassment more than 100 years later over the execution of women [*452] in Salem as witches, and we are encouraged to appreciate the enlightenment values that limited the confidence of those in power that Wheeler’s execution was an appropriate punishment.

The social standing of the main figures of the trial gets a great deal of attention. This was a case held before the Supreme Judicial Court of Massachusetts. The judges were the gentry figures, Theodore Sedgwick, Samuel Sewall and Simeon Strong – all Federalists. Sedgwick and Strong, westerners, went to college at Yale; while Sewall, who was from Boston, went to Harvard. The authors point out that these figures brought the stature of their place in society to the bench. The prosecutor, James Sullivan was a self-made man and a Jeffersonian. The son of Irish indentured servants, he did not go to college but apprenticed at law and had a full career before taking the Wheeler case at the age of 61.

Some scholarship is subsumed in the popular style of the presentation where documentary sources get far more attention than the current students of law and crime who condition our sensibilities to these institutions today. The authority of the state enacted in the last minute reprieve echoes the work of Douglas Hay in ALBION’S FATAL TREE. Although it was not to be a gift granted to Wheeler, the author’s aptly note the relevance of the pardon in Massachusetts in 1806. In addition, the execution spectacle as a waning punitive form says Foucault loud and clear. Hay is not mentioned, and Foucault only briefly.

I like the book for highlighting the relationship between the trial and the lives of prominent members of the community. But in the case of the principals, this was not a case of using the trial to advance careers. The judges and the prosecutor brought considerable stature to the proceedings. Nor can it be said that this execution was in response to the desire for blood on the part of the lower classes. THE HANGING OF EPHRAIM WHEELER, read along with Myers on the Supreme Court, provides considerable depth for his thesis that brutality, economic inequality, and class violence are foundations of the rule of law in America. One has to look beyond the conventions or politics of litigation to see these dynamics. This book helps.

The good burghers of Massachusetts in 1806, the gentry produced for the most part by Harvard and Yale, maintained their institutional authority much as was the case for the most recent nominations to the Supreme Court. Grand figures, elegant, educated, folk send poor men to the gallows, while authorities affirm their standing by the horror of the crimes before them. We do not see executions or other punitive brutality as much today, even when the crimes are horrible, but the social power on which state and law rests seems all the more solid for being out of the limelight

REFERENCES:
Davis, Natalie Zemon. 1983. RETURN OF MARTIN GUERRE. Cambridge, MA: Harvard University Press.

Dumm, Thomas L. 1987. DEMOCRACY AND PUNISHMENT: DISCIPLINARY [*453] ORIGINS OF THE UNITED STATES. Madison: University of Wisconsin Press.

Hay, Douglas, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow. 1975. ALBION’S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND. New York: Random House.

Myers, Gustavus. 1912. THE HISTORY OF THE SUPREME COURT OF THE UNITED STATES. Chicago: Charles H. Kerr & Company.

© Copyright 2006 by the author, John Brigham.

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EXTRADITION BETWEEN CANADA AND THE UNITED STATES

by Gary Botting. Ardsley, N.Y.: Transnational Publishers, Inc., 2005. 450pp. Hardback. $125.00. ISBN: 1571053352.

Reviewed by Daniel C. Turack, Capital University Law School. Email: DTurack [at] law.capital.edu

pp.445-449

Extradition is a process, usually taking place as a result of an international agreement, whereby each of the signatories agrees to surrender an individual accused or convicted of an offence outside of its own territory, to the legal authorities of the other signatory requesting that individual’s surrender. This book, by Gary Botting, looks at the past and current extradition processes between the two North American English-speaking countries that share a common border stretching beyond 5,500 miles, and whose legal systems derive from the English Common Law.

It will be recalled that in 1874, Edward Clarke, the leading British authority of his day on extradition, said “In the matter of extradition, the American law was better than that of any country in the world” (p.1). Today, American law is guided by the Patriot Act after the horrific events of September 11, 2001, which allows secret proceedings, secret warrants of arrest, extraordinary rendition, and the expansion of executive power at the expense of legislative and judicial processes. As the world has become less safe, it is not surprising that terrorism’s threat has also influenced extradition.

Extradition involves the interaction of the judicial and diplomatic processes in both countries. As the author points out, “[n]ot once in 200 years has Canada exercised the right to prosecute a requested person rather than extradite him – even where the conduct took place entirely within Canada and the Canadian accused never once left his homeland. Not once since the 19th century has the Canadian Minister of Justice disallowed an extradition on the grounds that it was politically motivated or that the conduct constituted an offence of a political character – both traditional bars to extradition” (pp.xx-xxi). As the events of 9/11 have reshaped American foreign policy, Botting asks whether Canada’s “blanket approval of extradition to the United States is an appropriate or just remedy for Canadian citizens caught in the extradition machinery . . . [or] can Canada develop a policy with its constituent provinces and territories of prosecuting such individuals at home rather than subjecting them to the unknown vicissitudes of treatment of foreigners, as reflected most poignantly in the long saga of Guantanamo Bay?” (p.xxi).

In the introductory chapter, Botting recounts the traditional theories and principles of extradition that include the treaty, role of the executive prerogative, enabling legislation, extraditable offenses, the requirement of dual criminality, the rule of non-inquiry, the choice of whether to extradite or prosecute, the rule against double [*446] jeopardy, the speciality doctrine, and the political offense exception. The introduction also contains the author’s sentiments on Justice Gérard Vincent La Forest’s work and influence on extradition, beginning with his book on EXTRADITION TO AND FROM CANADA (1960), carried forward through the third edition by Anne Warner La Forest (1991), and during Justice La Forest’s time on the Supreme Court of Canada in dealing with extradition cases. Furthermore, Botting elucidates that “[t]he policy of giving treaty considerations priority over constitutional considerations, spearheaded by La Forest, J. and followed sedulously in the lower courts, ignores the fact that in Canada, the Charter [Canadian Charter of Rights and Freedoms] is a significant part of the supreme law of the land whereas extradition treaties are not” (p.25).

On the American side, Botting singles out Judge Henry Friendly of the Second Circuit Court of Appeals, whose judgments on extradition law between 1973 to 1986, “despite their being based upon ‘misreadings of extradition history and the resulting confusions of extradition practice’ have been followed by district and circuit courts across the country” (p.27). This initial chapter ends with a road map to guide the reader on what is to follow.

In the second chapter, the reader is taken on an historical excursion of the reasons for the absence of cooperation on apprehension and the return of fugitives in British North America before American independence. Discussion of the prelude to the negotiations and application of the Jay Treaty of 1795 is very interesting reading, as are the events concerning the War of 1812, and for those guilty of treason, thus, “planting the seeds of the notion of more lenient treatment for offenses motivated by political commitment” (p.49).

From the time of ratification of the Treaty of Ghent (1814) until the conclusion of the Webster-Ashburton Treaty (1842), the author relates how each country handled extradition matters in the absence of a treaty, and how particular “guiding spirits” prevailed in their endeavors either in support or opposition to such matters. Prominent in these pages is the failed Rebellion of 1837 in Upper Canada, the attempted extradition of William Lyon Mackenzie, the foiled Rebellion leader who escaped to the State of New York, and whose Governor regarded Mackenzie’s acts as “political.” There is a short discussion of “The Fugitive Offenders Act” (1833), of Upper Canada, and a thumbnail sketch of cases that arose from both sides of the border during this period.

Chapter Three is devoted to The Webster-Ashburton Treaty. Botting stresses that from the outset, Webster’s successor as Secretary of State, John C. Calhoun, a die-hard supporter of slavery, “attempted to undermine and misinterpret one of the central pillars of the treaty, the rule of double criminality” (p.78). The author focuses on the enabling legislation, both the American statute, the Act of 1848, and the interpretations given to the role of the executive and the judiciary. Canada’s enabling legislation is basically traced through the extradition case involving [*447] John Anderson; the principles ultimately found their way into the 1999 Extradition Act. Interesting snippets of history reveal, for example, that John A. Macdonald, Canada’s first Prime Minister, when as Attorney General, he could act on an extradition without consulting the courts (p.88). Incidents that arose during the American Civil War also make for interesting reading.

There follows an insight into the litigation during the post-1867 Canadian Confederation with heavy emphasis on the 1896 case of R. v. DELISLE, involving the extradition request from Newfoundland, and Taschereau, J., of the Quebec Court of Queen’s Bench, whose response left a formidable impact on extradition law. The remainder of the chapter highlights the changes that were added to extradition law, such as recognition of the political offence exception, the acceptance of the rule of speciality, and the growth of extraditable crimes added to the list.

In Chapter Four, Botting traces the interaction of different aspects of extradition practice in the United States and Canada while demonstrating his socio-politico investigative talent. Chapter Five is devoted to the devolution of extradition procedures with mutual acceptance of the speciality rule, and assessment of need for adequate proof of foreign law, prohibition-era cases, instances involving improper use of the mail, fingerprint records, and evidentiary use of photostatic copies. In Chapter Six,“The Death And Resurrection Of Extradition,” Botting briefly reviews a series of extradition cases brought in the 1950s and 60s and outlines the changes brought about by the 1970 Canadian Federal Court Act, that he says “made extradition procedure in Canada incomprehensible even to judges” (p.197).

Events leading up to drafting a new treaty between the US and Canada in December 1971 are reviewed, and the story is also told of two Canadian cases in 1972 in which lawyers began to invoke the Canadian Bill of Rights in extradition proceedings “with marginal success” (p.201). Although the new treaty was not ratified until March 22, 1976, Botting’s assessment is that “[p] erhaps the greatest failure of justice in Canadian extradition history surrounds the decisions of both the extradition judge and the Minister of Justice in the case of Leonard Peltier, an American Indian Movement (AIM) leader accused of the 1975 murder of two FBI special agents at Wounded Knee, South Dakota” (p.217).

The 1976 US-Canada Extradition Treaty is the subject of Chapter Seven, in which the author reviews jurisprudence related to double jeopardy, offenses of a political character, treatment of minors, how Canadian Ministers of Justice have dealt with “No Death Penalty” Assurance, and whether there would be a recognized linkage between the Canadian Charter of Rights and Freedoms and extradition matters. The remainder of the chapter deals with a few procedural issues, how the rule of speciality operated, and the requirement of mutual cooperation between the Treaty Parties, as well as factors to be [*448] considered when there is joint jurisdiction to prosecute.

Chapters Eight and Nine concentrate primarily on the Canadian practice based on the scheme set out in the Canadian Extradition Act; therefore, it would be of most significance to both practitioners and researchers. The author follows the eight distinct steps outlined in the 1999 Canadian statute—namely, (1) Request; (2) Authorization; (3) Appearance; (4) Committal hearing; (5) Appeal of committal hearing outcome; (6) Minister’s initial surrender decision; (7) Judicial review of Minister’s surrender order; and (8) Final surrender decision. These steps are followed in all cases, unless the person being sought consents to committal, consents to surrender, or decides to waive extradition.

Botting does not gloss over any of the details in his appraisal of the process, and he notes parallels in the American practice, but tells us that since the Treaty came into force, “the courts have systematically whittled away the statutory comparison to the preliminary inquiry at the expense of the person in the dock” (p.278). Under the new Act, the extradition hearing “has been diluted by the prescription to judges to accept into evidence the summaries of prosecutors” (p.277). Moreover, jurisdiction to hear evidence of political offenses under the Act is now assigned to the Minister of Justice rather than the courts. Of particular interest to the reader is the Second Protocol to the Treaty, signed on January 12, 2001, which outlines the method for extradition requests from the United States to Canada but leaves extradition requests from Canada to the United States unchanged.

The role of the Minister of Justice is developed in depth by the author. It appears that the Minister “must ask certain questions, and may ask others, regarding the applicable principles and safeguards outlined in the Act” (p.299, emphasis in original). A great deal of legal interpretation is involved at this level, and the Minister relies on the International Assistance Group within the Department of Justice. Whether the extradition target also has a claim for refugee status or the requesting state has a death penalty statute are virtually unchallengeable. The discretionary domains of the Minister and the US Secretary of State are compared by reference to contemporary cases. The Canadian Act provides for a form of judicial review of the Minister’s decision, and Botting concludes that judges generally defer to the Minister (and quotes T.S. Eliot’s The Love Song of J. Alfred Prufrock: “deferential, glad to be of use” (p.324)). However, factors in a number of recent cases have “outweighed the tradition of deference” (p.331).

As a consequence of the terrorist acts of 9/11, 2001, American expenditure along the US – Canada border increased to almost $12 billion. Botting’s tenth and final chapter examines the so-called “Canadian connection” to these events, as well as the steps taken by Canadian authorities involving Canada’s Anti-Terrorism Plan to combat future acts of terrorism. Interestingly, while reviewing this book, the largest counterterrorism action by Canadian police occurred in a [*449] Toronto suburb on the weekend of June 4, 2006. The group of suspects had allegedly taken steps to acquire three tons of ammonium nitrate and bomb making electronic components. One early headline in THE NEW YORK TIMES warns, “Canadian Border Proves Difficult to Secure” (Shane 2006).

The volume contains three appendices: the first is the Canadian Extradition Act of 1999; the second, the US Extradition Statutes found in Title 18 of the US Code; and the third, the current Treaty on Extradition between Canada and the United States, and the First and Second Protocols. There is also a table of cases and an index. A concise and apt Forward to the work is provided by Professor M. Cherif Bassiouni.

Botting is to be commended for this thoroughly researched, and complex specialized subject. He brings both academic and practical experience to this work. Importantly, he has not written with legalese, and is easy for the non-lawyer to follow. His aptitude for injecting historical relevance makes it an enjoyable read, a quality only sporadically found on legal topics.

REFERENCES:
La Forest, Anne Warner. 1991. LA FOREST’S EXTRADITION TO AND FROM CANADA (3rd ed). Aurora, Ont.: Canada Law Book.

La Forest, Gérard Vincent. 1960. EXTRADITION TO AND FROM CANADA (1st ed). New Orleans: Hauser Press.

Shane, Scott. 2006. “Canadian Border Proves Difficult to Secure.” THE NEWYORK TIMES, June 5, 2006, p. A12.

CASE REFERENCE:
R. v. DELISLE, [1896] 5 C.C.C. 210 (Que. Q.B.).

© Copyright 2006 by the author, Daniel C. Turack.

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INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS

by José E. Alvarez. New York: Oxford University Press, 2005. 720pp. Hardcover. $150.00/£85.00. ISBN 0198765622. Paper (2006). $55.00/£29.99. ISBN: 0198765630.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Dschultz [at] gw.hamline.edu

pp.442-444

International organizations often pose problems for international relations theorists. For realists who believe that nation-states are the only entities with ontological significance in international affairs, it is difficult to explain how or why international organizations such as the World Court affect regime behavior. For those who believe in Austin’s command theory of law, it is not easy to describe the capacity of international organizations such as the World Trade Organization to make law and secure compliance. Finally, for those who are committed democrats, it is hard to grasp the political legitimacy enjoyed by international organizations, such as the United Nations. Yet despite the quandary their existence poses for many, international organizations represent a potent force on the international scene, necessitating serious scholarly study.

José Alvarez’s INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS is a formidable book. Defining international organizations by way of their characteristics, Alvarez sees them as entities that are the product of agreements created by states, having at least one organ distinct from member states, and capable of acting under international law. While these three characteristics capture many of the entities he wishes to study, he notes the complexity in classifying and describing exactly what an international organization is. Seeing the rise of international organizations at the turn of the twentieth century, Alvarez states that there were 37 IOs in 1909, rising to a peak of 378 in 1985, only to settle back to 250 by 2000. Given these numbers and over a century of existence, it is no surprise that one problem in analyzing international organizations is developing a taxonomy that captures their range of forms and functions. This is the task of the opening chapter of the book. It is also in this initial discussion that Alvarez sharply defines his object of inquiry: He wishes to focus more specifically on public international organizations, seeking to ascertain their common traits, their role in international relations theory and practice, their capacity to make law and bind nation-states, and their overall impact upon regime and individual behavior. In addition, the book is written to assess these entities, with the hope that one can learn from their past failures to help improve their efficacy and performance. Clearly, Alvarez does not bemoan their existence but embraces them as legitimate actors with independent legal personalities in the international community.

One of the strongest and richest discussions in the book is an effort to reconcile international organizations with various theories. Alvarez is correct to note a challenge. If the nation-state theory of sovereignty, as indebted to the [*443] treaty of Westphalia and Metternich, enjoys hegemonic status among academics and international lawyers, international organizations are vexing. How, if nation-states are the ontological prima causa of international politics, can we account for international organizations as having distinct personality and a capacity to affect behavior? Realists might need to account for them as simply epiphenomena, epistemologically understandable only by way of reference to the states that created them. Yet besides the challenges international organizations pose to realists, Alvarez also reviews other theoretical perspectives, such as critical theory and functionalism, in an effort to show how they have thus far failed to account for these organizations in their schemas. Thus, while descriptive, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS is also a theory-building enterprise, promising a sophisticated framework for international organizations.

The core of the book is a detailed examination of international law. Article 38 of the International Court of Justice’s statute lists international agreements, treaties, customs, and general principles as the sources of international law. Alvarez’s discussion of international organizations reveals how these entities create, enforce, enable, and adjudicate law across all of these sources. In developing his discussion of international organizations, the author details the ways entities such as the Security Council, the International Monetary Fund, and other more specialized organizations operate as trans- or supranational bodies that affect both the behavior of states and individuals. Of particular interest is the discussion of the various international tribunals which resolve disputes, adjudicate complaints, or facilitate negotiations.

What are the conclusions that Alvarez reaches about international organizations? The grande conclusion is that international organizations have had a dramatic impact upon the institutionalization of public international law, and that these norms have definitely affected state power. Thus, international organizations are a challenge to state-centric conceptualizations of the world community. International organizations, accordingly, need to be added to Article 38 as a source of law. Moreover, unlike more traditional international law that only affected states, the rules articulated by international organizations reach down to individuals, thereby blurring the lines between intra- and inter-state lawmaking. Thus, what it means to be sovereign in an era when international organizations exist, must be rethought.

As with any book review, there is much more to INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS than what is described here. While the book does fall short of developing a new fully elaborated theory on international affairs that accounts for international organizations within a state-dominated world, it nonetheless offers abundant examples and arguments regarding how contemporary theories are deficient in accounting for these [*444] organizations. In sum, those interested in international relations theory, law, or behavior will find this book a significant effort to update current theory to the new reality of how international organizations affect the world.

© Copyright 2006 by the author, David Schultz.

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LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA

by Robert A. Williams Jr. Minneapolis: University of Minnesota Press, 2005. 312 pp. Paper. $18.95. ISBN: 0-8166-4710-0

Reviewed by Ronald L. Steiner, Department of Political Science, Chapman University. Email: Steiner [at] chapman.edu

pp.438-441

What would American law be like today if BROWN v. BOARD (1954) and other cases had never rejected the overt racism of DRED SCOTT v. SANFORD (1857) and PLESSY v. FERGUSON (1896)? In the area of federal Indian law, this is not an idle thought experiment. As Robert A. Williams Jr. passionately argues, the present stain on American law and politics regarding Native Americans reflects the express racism of its basic precedents, and will continue until that overt racism is honestly confronted and finally rejected.

This important book by a leading scholar and practitioner of Indian law might best be seen as the third volume (and contains a promise of a fourth) in a series exploring the intellectual foundations and present realities of the American legal and political treatment of Native Americans. Williams’ works have outlined how those foundations shaped the history that followed, and he concludes this volume by showing how our own historical moment gives the indigenous peoples and the settler society in America the opportunity to forge a new future. Williams insists this new future cannot escape and should not ignore what went before. However, with a good faith effort to disavow the worst of the past, it can offer non-indigenous America the chance to re-start legal and political relations with Indians in a way more true to the best in its past and the better angels of its current imagination.

To simplify crudely Williams’ argument, the foundations of federal Indian are found in a blending of international law and racism, and over time American law has rejected the internationalism but kept the racism. He continues here a conversation with S. James Anaya (2004), Philip Frickey (2005), and others about how the international law orientation of federal Indian law might be recovered, shorn of the racist trappings.

Williams, a professor of law and American Indian studies at the University of Arizona, is singularly well-suited to make this case. An enrolled member of the Lumbee Indian Tribe, he received his J.D. from Harvard Law School, and has served there multiple terms as a visiting professor. He also has been an active legal practitioner, having represented tribal groups before the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, and the United Nations Working Group on Indigenous Peoples, and served as co-counsel in the U.S. Supreme Court case, NEVADA v. HICKS (2001). He also has served as a judge or justice in several tribal court systems. In addition to his seminal monographs, he literally wrote the book [*439] on Indian law—the several editions of his co-authored CASES AND MATERIALS IN FEDERAL INDIAN LAW (2004) has long been the standard textbook on the subject in law schools across the country.

Williams’ first major work, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990), surveyed Europeans and early American legal beliefs and practices regarding radically different cultures, focusing on the supposed authority of Christian sovereigns to ignore the law of non-Christian societies, and, not incidentally, seize their lands. Later, he emphasized the indigenous side of some of that intellectual history in LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 1600-1800 (1997). Williams stressed that Indians considered treaties to be a sacred bond between peoples, creating “a complex web of connective, reciprocating relationships” that was intended to endure and shape the future (p.62). Williams also related the many ways in which Indians were not simply victims in a sad and sordid tale of white perfidy, but primary actors and “active, sophisticated facilitators on a multicultural frontier” (p.29).

An ongoing theme in Williams’ work has been to emphasize that treaties matter and often reflect a solid foundation for present and future relations. He begins this new book with a discussion of the apocryphal swindle of the simple-minded Manhattan Indians by the devious Dutch. Such apologist tales of innocent Indians being ripped off by wily Europeans partakes too much of the myth of the ignorant savage for Williams’ taste. Instead, Williams reminds us, tribes strategically interacted with European powers and settler societies, often playing one side off the other to great advantage, with all sides knowing that there was much to be gained from peaceful trade and intercourse, and that the outcome in armed conflict could never be certain. And the economic relations between peoples very often was a truly mutually beneficial exchange, Williams insists.

Non-indigenous Americans are embarrassed at the extent to which colonial and early American law ignored this reality and was founded upon the express presumption that Indian peoples were morally and culturally backward and inferior. Notwithstanding that embarrassment, that past has never been really remedied. After all, as Williams, Anaya, and others have long argued, intergenerational responsibility is tricky stuff, and it is not clear that the injustices of the past are superseded by the mere passage of time.

Moreover, as Williams makes painfully explicit here, the express racism of an earlier era was not an unfortunate gloss on an otherwise legal-rational regime. Instead, it was a central premise in the American enterprise of settlement and expansion. And, through extensive discussions of recent cases from OLIPHANT v. SUQUAMISH INDIAN TRIBE (1978) to NEVADA v. HICKS (2001) and U.S. v. LARA (2004), Williams details the ways in which the racist assumptions of Indian legal inferiority still are firmly rooted in [*440] American law. In HICKS, for example, a unanimous Court held that tribal jurisdiction means so little that “an Indian tribal member, living on his own reservation, could not use his tribe’s courts, laws, customs, and traditions to protect himself from acts of trespass, abuse of process, and violations of his constitutional rights allegedly committed by law enforcement officers . . . who had entered upon his home, on tribal land, on two separate occasions to execute a search warrant for a crime he did not commit” (p.141) Though any state or foreign court would have had jurisdiction under analogous circumstances, the Supreme Court relies on sanitized references to nakedly racist precedents to divest tribal governments of authority, citing the “special” nature of tribal courts (is “special” a place-holder for something more politically incorrect?) as compared to “American courts” (and these Native American courts are located in, what, Japan?).

Given his extensive personal involvement as an advocate in HICKS, Williams is understandably zealous in explicating the wrongness and injustice of that case. A more detached observer might have explained the case in more neutral terms, but would that really have been a better and truer account? Williams’ book is of a rare breed for academic writing: thoroughly researched, meticulously sourced, intelligently argued, and passionate to the point of anger. But, if he really believes his own account, why wouldn’t he be angry?

Williams does give us some respite in the end. He concludes by noting that the once express racist assumptions of the past are now more hidden by virtue of the eliding effects of precedent, but will continue to have force and do damage unless and until the precedents in which they are embedded are formally and finally repudiated. Ironically, the path forward is to return to first principles, and to admit again, as Chief Justice John Marshall once did, that Indian law is a species of international law. As such, Williams argues, domestic federal Indian law can only be true to itself if it begins to pay attention to developments in the international law of indigenous rights. Though to some it sounds like wishful thinking, in Professor Williams’ able hands, it takes on the quality of moral inevitability.

REFERENCES:
Anaya, S. James. 2004. INDIGENOUS PEOPLES IN INTERNATIONAL LAW(2d ed). New York, Oxford: Oxford University Press.

Frickey, Philip P. 2005. “(Native) American Exceptionalism in Federal Public Law.” 119 HARVARD LAW REVIEW 431-490.

Getches, David H., Charles F. Wilkinson, and Robert A. Williams. 2004. CASES AND MATERIALS ON FEDERAL INDIAN LAW. St. Paul, MN: West Publishing.

Williams, Robert A. Jr. 1990. THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST. New York: Oxford University Press. [*441]

Williams, Robert A. Jr. 1997. LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 1600-1800. New York: Oxford University Press.

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

DRED SCOTT v. SANFORD, 60 U.S. (19 How.) 393 (1857).

NEVADA v. HICKS, 533 U.S. 353 (2001).

OLIPHANT v. SUQUAMISH INDIAN TRIBE, 435 US 191 (1978).

PLESSY v. FERGUSON, 163 US 537 (1896).

U.S. v. LARA, 541 U.S. 193 (2004).

© Copyright 2006 by the author, Ronald L. Steiner.

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EXECUTIVE ORDERS AND THE MODERN PRESIDENCY: LEGISLATING FROM THE OVAL OFFICE

by Adam L. Warber. Boulder, CO: Lynne Rienner Publishers, 2006 175pp. Hardcover. $49.95. ISBN: 1-58826-401-7

Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA. E-mail: Kyle.Kreider [at] wilkes.edu

pp.434-437

When the presidency was transferred from Bill Clinton to George W. Bush in January, 2001, the media seemed fascinated by two things: the questionable pardons by President Clinton in the last days of his presidency, and the flurry of executive orders he issued in his last year of the presidency, when Congress was controlled by the Republicans and President Clinton could not get his way in the legislative process. The media’s attention raised the question that Adam Warber, in EXECUTIVE ORDERS AND THE MODERN PRESIDENCY, seeks to answer: “To what degree have modern presidents been active and strategic in using executive orders to establish policy” (p.1)?

EXECUTIVE ORDERS AND THE MODERN PRESIDENCY is an extremely valuable contribution to the presidency literature and a must read for presidency scholars. Through content analysis of “all published executive orders from March 1936 through the end of the William J. Clinton administration in January 2001” (p.2), Warber examined a total of 5,392 published executive orders. Warber’s data on presidents and executive orders will astonish many readers and will serve as interesting discussion for many graduate level courses on the presidency.

Conventional wisdom holds that, because executive orders can be issued unilaterally, presidents have increasingly used orders to accomplish policy, especially during periods of divided government when presidents are likely to face congressional opposition to their agenda. Warber, however, shows “the number of major presidential policy directives has not increased across time” (p.14), and presidents are not necessarily more likely to issue executive orders when Congress is of a different political party.

The book is broken into five chapters. Chapter 1 includes an introduction to executive orders and a theoretical foundation for the remainder of the book. Warber argues that executive orders can possibly be best explained by rational choice theory. Specifically, the book operates under five assumptions. First, presidents are rational actors who use their unilateral powers to fulfill their agendas. Second, unilateral powers are an effective way for presidents to accomplish their goals. Third, presidents act strategically in deciding when and how to use executive orders. Fourth, a president’s unilateral powers (executive orders) will be more successful in some policy domains than others. Finally, there are costs associated with presidents using executive orders (p.13). While Warber uses the bulk of Chapter 1 to explain [*435] these five assumptions, he concludes by explaining to the reader that EXECUTIVE ORDERS AND THE MODERN PRESIDENCY’s primary contribution lies in the fact that it is “the first book to examine the policy content of every published executive order since March 1936” (p.25). While others (Krause and Cohen 1997; Mayer 1999, 2001; Howell 2003) have applied statistical methods to analyze executive orders, such work might be “premature,” due to the lack of knowledge of the content of all executive orders issued since 1936 (pp.25-26).

In an empirically rich Chapter 2, Warber discusses and explains executive orders across administrations. Executive orders can be symbolic, routine, or policy-making. The data show, contrary to popular wisdom, “the average number of policy executive orders has not increased over time” (p.41), routine directives have decreased, and that presidents do not rely on symbolic executive orders to any large degree. When controlled for political parties, the data demonstrate that, on average, Democratic administrations issue more policy orders per year than Republican administrations.

Also included in Chapter 2 is an analysis of what presidents do with executive orders issued by their predecessors. The trend from Roosevelt to Johnson was that presidents would revoke, supersede, or amend routine executive orders, while since Nixon presidents have begun to use their power to revoke, supersede, or amend more policy orders than either symbolic or routine ones. In other words, presidents since Nixon have become more policy oriented with their executive order authority. When controlled for party politics, Warber found “no dramatic pattern” even though “six of the eleven administrations modified more policy orders issued by presidents of an opposing party than those policy orders issued by previous administrations of the same party” (p.59).

Chapter 3 discusses the complex political environment in which presidents operate when deciding whether to issue executive orders. One of the factors believed to affect presidential use of executive orders is the existence of divided government; specifically, presidents are more likely to use executive orders when Congress is controlled by the opposing party. However, Warber corroborated existing studies that showed presidents are more likely to use executive orders when government is unified rather than divided. The second factor believed to have an impact on executive orders is the presence of a presidential scandal. Presidents embroiled in scandal are more likely to use their time and resources to fight the scandal and decrease their policymaking efforts. However, the data show that neither Nixon nor Clinton decreased their executive orders during scandal-laden years. The third variable Warber examined was presidential tenure in office. Warber hypothesized that presidents are more likely to use executive orders during the last two years in office when cooperation from Congress is at its ebb and the president is trying to win reelection and/or help his political party’s electoral fortunes. The data show that presidents are slightly [*436] more likely to issue executive orders – of all kinds – in their last year than in previous years. In addition, presidents “issued more policy directives during nonelection than during presidential and midterm election years” (p.74).

Because presidents “seek to expand the life-span of their policy directives” (p.88), they are mindful of the rationale and sources of authority for their executive orders. Therefore, Warber examines these bases of support for presidential orders, as well as the congressional response, in Chapter 4. Statutory authority serves as the primary basis for routine executive orders, while presidential authority serves as the primary basis for policy-oriented and symbolic orders. Of particular interest in this chapter is Warber’s finding that Democratic and Republican administrations handle executive orders differently. For example, “Democrats have been more active than Republicans in claiming that the interests of the national economy justify the establishment of some executive orders,” and “Democrats cited a greater number of existing orders to legitimize the creation of new directives than did Republicans, by a ratio of almost two to one” (p.99). Future research could possibly examine such a party difference exists.

A part of the strategic environment surrounding executive orders is what Congress is likely to do in response. As Warber sees it, Congress has two options: apply verbal pressure or pass legislation “to nullify or reform existing executive orders” (p.108). While Congress has these two options, the data show that “Congress devotes a small portion of its time debating executive orders” (p.114) and “has been relatively inactive in reforming and eliminating specific executive orders issued by presidents who served between the Kennedy and George H. W. Bush administrations” (p.120).

Warber concludes with a cursory examination of President George W. Bush’s use of executive orders and some thoughts on where future research should go. While his political opponents and some members of the media criticize President Bush for his penchant for acting unilaterally (in both domestic and foreign affairs), expanding the powers of the presidency, and sometimes bypassing the expertise found in Congress, “the results demonstrate that Bush has not significantly departed from previous presidents regarding the types and quantity of executive orders that he issued during his first term” (p.124). However, what has been different under President Bush is his willingness to change existing public policy by revoking, superseding, or amending executive orders made by previous presidents. Yearly averages show President Bush to be second only to President Carter in revising inherited executive orders.

A key finding of this book is that “presidents have not dramatically expanded their power with [executive orders] across the modern presidency” (p.128). Though Warber does not have the specific answers as to why presidents have not increased their use of executive orders over time, he speculates the stasis in presidential directives to a number of [*437] factors, one being the continued existence of separation of powers—specifically Congress’s ability to pass legislation to revoke or revise executive orders and the federal courts’ authority to decide upon their constitutionality.

Finally, Warber argues that future research should investigate congressional and judicial responses in more specific detail. What power does Congress have at its disposal to counteract executive orders? How often does the Supreme Court strike down executive orders as unconstitutional, and does this restrain the president? What strategies do presidents employ in counteracting the potential for courts to strike down executive orders? What role do solicitors general play in developing executive orders? What role does the bureaucracy play in “the creation and implementation of executive orders” (p.131)? All of these questions are important, largely left unanswered in this book, and should be examined in greater detail in future research.

The principal question is why presidents would not use their executive order authority with greater frequency, especially in times when they can not accomplish policy through the legislative process. EXECUTIVE ORDERS AND THE MODERN PRESIDENCY is a value to the presidency literature because it seeks to provide answers to that very important question. Warber makes a compelling argument – based upon an extensive and impressive database – that presidents are rational actors and that there are rational reasons for why presidents would not issue orders ignorant of the current political context. However, this argument is not altogether new. Mayer (2001) notes that “[t]he key is that the use of the executive orders is conditioned on presidents’ overall political situation: presidents balance the benefits of issuing an order against the costs of doing so” (2001, at 220-221). Nevertheless, EXECUTIVE ORDERS AND THE MODERN PRESIDENCY is a solidly written, well documented examination of the use of executive orders since 1936. It is now the responsibility of scholars to broaden our understanding by investigating the role that interest groups, the bureaucracy, Congress, and the federal courts play in this process.

REFERENCES:
Howell, William G. 2003. POWER WITHOUT PERSUASION: THE POLITICS OF DIRECT PRESIDENTIAL ACTION. Princeton: Princeton University Press.

Krause, George A. and David B. Cohen. 1997. “Presidential Use of Executive Orders, 1953-1994.” 25 AMERICAN POLITICS QUARTERLY 458-481.

Mayer, Kenneth. 1999. “Executive Orders and Presidential Power.” 61 JOURNAL OF POLITICS 445-466.

Mayer, Kenneth. 2001. WITH THE STROKE OF A PEN: EXECUTIVE ORDERS AND PRESIDENTIAL POWER. Princeton: Princeton University Press.

© Copyright 2006 by the author, Kyle L. Kreider.

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DISCRIMINATION BY DEFAULT: HOW RACISM BECOMES ROUTINE

by Lu-in Wang. New York and London: NYU Press, 2006. 200pp. Cloth $40.00/£27.95. ISBN: 0-8147-9379-7.

Reviewed by Thomas Shevory, Department of Politics, Ithaca College. Email: shevory [at] ithaca.edu.

pp.431-433

The premise of Lu-in Wang’s DISCRIMINATION BY DEFAULT is that racism, and the discriminatory actions that flow from it, are not so much the result of intentional or conscious desires to harm as they are the consequence of deeply imbedded social contexts and stereotypes. These encourage or allow ubiquitous everyday discriminatory practices to disappear into invisible patterns of “normal” or “reasonable” conduct. Discrimination becomes the “default” mode of operation by ordinary people, and, perhaps more importantly from a legal perspective, by those with institutional power and authority, such as police officers, prosecutors, judges, and an array of other public officials. As a result of this, the effects of discrimination remain largely hidden from those engaged in discriminatory conduct, and discrimination is very difficult to challenge in a legal system in which “intent” is a primary factor for assigning legal responsibility or blame.

Wang begins the book with several hypothetical scenarios to show how discrimination by default might occur in various contexts. One involves a black couple who become angry and frustrated when a white couple is seated ahead of them while waiting for service at a restaurant. (It turned out that the white couple were “regular costumers.”) Another involves a woman working for a law firm who is placed on a “team,” the leader of which routinely belittles her contributions while also criticizing her for not being more assertive. A third involves an Asian student who is severely disciplined by a professor for not attending class because of a family crisis, while a white counterpart in the class is not, even though his excuse seems less compelling. Wang asserts that “It may be that in each of the three cases the decision maker treated the other person less favorably than he or she should have if that person were of a different race, gender, or ethnicity—but that in none of the three cases did the decision maker intend to do so. It may be, in other words, that each of them discriminated not by design, but by default” (p.4).

Wang then gives us an array of other instances of how defaults tend to serve the interests of institutional forces that are in place and that have power. Computer software defaults are an example, as is Microsoft’s domination of computer operating systems. As Wang states, “Many of us accept almost all of these settings, some because we have no preference otherwise, and some because we don’t realize we have a choice” (p.5). It is the lack of recognition or awareness of what this involves that makes it so powerful. As Wang notes, “In this situation, our failure to take action literally may be the result of our neglect or failure, but acceptance of the default seems for the most part to be neutral or [*432] objectionable. In some cases, the choices made by default may even seem desirable, to the extent that the default setting is viewed as the expected, the best, or the most popular setting” (p.5).

Much of Wang’s attention to legal matters is focused on the criminal justice system. Racial profiling and police abuses of minorities are fertile fields for discrimination by default, and ones in which it can have particularly pernicious consequences. The shooting of Amidou Diallo provides a horrifying example of what can flow from racist conduct that may not be entirely conscious. Following Malcolm Gladwell, Wang considers the officers’ conduct to be the result of mental processes “‘that fall into a kind of gray area, the middle ground between deliberate and accidental’” (p.10). In Diallo’s case, of course, the “default” that allowed him to be viewed as hostile and dangerous had everything to do with race. In American society, whiteness still serves as the default, and an infinite variety of patterns of conduct are defined by its imperatives. The dominance of whites is not unlike the dominance of Microsoft as the default of computer operating systems. “Whites enjoy a market and social environment characterized by networks that increase the initial advantage of being the accepted standard . . . The group’s dominance perpetuates itself ‘naturally,’ through seemingly neutral preferences for language, culture, stereotypes, and credentials that are associated with the standard and exclude those who are, or are perceived to be, incompatible” (pp.12-13). But, of course, the history of racism in the U.S. makes its unraveling much more intractable than eroding Microsoft’s dominance of certain software markets.

The argument that racism is institutionally imbedded and thus difficult to challenge at the level of intentionality is, of course, not entirely new. And the difficulty of proving intentions is endemic to virtually all aspects of the legal system. The virtue and contribution of Wang’s book is that it draws heavily and imaginatively upon numerous social psychological studies to demonstrate how social defaults work in complex and subtle ways to support multiple forms of institutional racism in U.S. society. In a chapter entitled, “Situational Racism,” Wang reveals the myriad ways in which ambiguity of social context can allow for discriminatory actions to be both exercised and disguised. As she puts it, “the myth that certain groups are especially prone to criminal or deviant behavior makes seemingly race-neutral reasons more believable and allows for the apparent separation of racial bias and reasonable suspicion or probable cause” (p.47). In a chapter, entitled “Self-Fulfilling Stereotypes,” she shows how attempts on the part of whites to be seen as non-racist can create a psychological burden that leads to resentment. The chapter on the health care system is especially important, because it deals with aspects of racism that are often ignored while also being at the core of racism’s corrosiveness. In other words, the book does an excellent job of revealing some of the underlying dynamics of racism in a social system that may no longer rely primarily upon graphic racist appeals or gross racist stereotypes to function as a system of power. [*433]

Finding mechanisms to combat racial defaults provides a distinct set of challenges, because in making legal claims “the discrimination in question might not meet the prevailing standard because the perpetrator might not have intended to discriminate or the challenged decision might appear to be justified on nondiscriminatory grounds” (p.135). I agree with Wang, then, that change must occur at the institutional level, and she provides desegregation of hospitals via the financial incentives provided by Medicare as an example of how this can occur (pp.140-141). Given her emphasis on institutional contexts, I was somewhat surprised that Wang did not include a discussion of affirmative action. In fact, this book is a very good argument in favor of affirmative action. In my own view, one of the best ways to undermine the defaults of discrimination in the U.S. would be to diversify an array of institutions: hospital bureaucracies, medical schools, public health systems, all levels of police departments, prosecutors’ offices, jury pools, law school faculties, and so on. I would suggest that discriminatory “defaults” are more difficult to disguise in institutions that practice affirmative action, and that affirmative action is itself a check against unconscious or semi-conscious forms of discrimination.

Wang’s thesis should not be taken as presuming that intentional acts of discrimination have disappeared from American life. Recently the National Fair Housing Alliance (2006) released a study showing that “racial steering” was the “norm” practiced by realtors in the U.S. In 87% of cases where NFHA testers were taken to see properties, steering occurred. Such practices foster broad patterns of segregated housing and all the discriminatory consequences that follow. While such actions may be a “default” in some respects, it is hard to imagine that they do not involve conscious deliberate acts of discrimination. Overt racism is still alive and well in this society.

Finally, it is worth noting that one of the many positive things that this book has to recommend for itself is a very clear writing style that makes complex legal and social science concepts accessible to a wide array of audiences. Given the capacities of some legal scholars to devolve into incomprehensibility for non-specialists, this is no small achievement. As a result, the book would be appropriate for a variety of teaching situations, including undergraduate courses on law related issues, as well as those in which the primary emphasis is not on law, but upon the politics of race. Given the difficulties that white undergraduate students often have of grasping the meanings of institutional racism, the book could serve an important purpose in this context.

REFERENCE:
National Fair Housing Alliance. 2006. “National Fair Housing Alliance Releases Housing Discrimination Data and Denounces Crisis of Segregation.” NATIONAL FAIR HOUSING ADVOCATE ONLINE, 29 May, 2006, http://www.fairhousing.com/index.cfm?method=page.display&pageid=3657 .

© Copyright 2006 by the author, Thomas Shevory.

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FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP

by Martha C. Nussbaum. Cambridge, MA: The Belknap Press of Harvard University, 2006. 512pp. Hardcover. $35.00 / £21.95 / €32.30. ISBN: 0-674-01917-2.

Reviewed by Steven Tauber, Department of Government & International Affairs, The University of South Florida. Email: stauber [at] cas.usf.edu.

pp.427-430

Liberal social contract theory, with its emphasis on individual freedom and equality of opportunity, has been instrumental in expanding justice. However, constraints on social contract theory prevent it from dealing with questions of justice for the disabled, inhabitants of poor nations, and non-human animals. Martha Nussbaum, a leading political theorist and legal philosopher, attempts to rectify these deficiencies with FRONTIERS OF JUSTICE. Nussbaum develops a “capabilities approach” that expands liberal political theory in order to encompass concepts of cooperation and care, thus providing justice to those previously disregarded groups. This book is a major contribution to jurisprudence and political theory, and it will be valuable to scholars interested in health care, international relations, or animal welfare.

Chapter One offers a scholarly and lively analysis of classical and modern social contract theories. Nussbaum devotes considerable attention to John Rawls, who proposes a procedurally based philosophy of justice that she regards as “the strongest form” (p.3) of social contract theory. All social contract theories, including Rawls’, regard the contractors as independent actors of relatively equal stature, who recognize that forming an organized government will be to everyone’s mutual advantage. However, because the disabled, inhabitants of poor nations, and animals are dependent upon and unequal to a dominant group, social contract theory excludes them from its conception of justice. Compassionate treatment towards those individuals is a product of charity, not justice. Additionally, the Utilitarian approach, which overemphasizes aggregate results at the expense of disadvantaged individuals, will not guarantee social justice for the disabled, inhabitants of poor counties, and animals. To present an alternative to these theories, Nussbaum introduces her “capabilities approach” by discussing ten essential capabilities—“life,” “bodily health,” “bodily integrity,” “senses/imagination/thought,” “emotions,” “practical reason,” “affiliation,” “other species,” “play,” and “control over one’s environment” (pp.77-8). Unlike Rawls, who focuses on procedural justice, the “capabilities approach” is concerned with outcome oriented justice. As a result, the “capabilities approach” requires a just society to guarantee basic dignity to the disabled, inhabitants of other nations, and animals.

Chapters Two and Three deal specifically with disabilities. Social contract theory assumes that independent, rational people enter into [*428] social contracts for mutual advantage, but the severely disabled are not in such a bargaining position. Eschewing the Kantian conception of the person as a “rational being,” the “capabilities approach” adopts Aristotle’s conception of the person as “a political and social animal . . .who shares complex ends with others at many levels” (p.158). Consequently, the ends of justice are able to focus on guaranteeing basic dignity for people with disabilities. Nussbaum illustrates the feasibility of her “capabilities approach” through a discussion of actual public policies that will enhance guardianship for the disabled, opportunities for their education, and accommodations for their caregivers.

Chapters Four and Five concentrate on justice for inhabitants of other nations, many of whom live in morally unacceptable physical and economic conditions. Nussbaum highlights the fallacy of Rawls’ and Kant’s two-stage social contract in international relations. If viewed as the state of nature, then the international sphere should consist of nations that are independent and equal, which is clearly not the case since the G8 countries dominate world affairs. Nussbaum argues that justice must be globalized, although she emphatically rejects a world state. The concluding section, entitled “Ten Principles on the Global Structure,” (pp.315-324) extends specific conceptions of justice beyond questions of security and political rights to include minimum guarantees in education, health care, and economic stability.

Nussbaum convincingly establishes that her “capabilities approach” provides a powerful and realistic model of justice for the disabled and inhabitants of poor nations. By using the examples of three real people with varying degrees of disability, Nussbaum personally engages the reader and better emphasizes the relevance of dignity for all individuals regardless of their abilities. Additionally, discussing her approach in light of actual public policies for the disabled verifies that the capabilities approach is feasible. Nussbaum’s theory enhances our understanding of international justice by demonstrating that the duties of wealthy nations and multinational corporations are fundamental to justice in a global society. The most compelling aspect of this book is that, despite its pointed criticism of extant liberal political philosophies, Nussbaum still operates within the liberal framework. Unlike non-liberal theories of care for the underprivileged (Nussbaum focuses largely on Kittay), the “capabilities approach” stresses individual freedom and equality, while still requiring basic dignity for all humans. In short, Nussbaum has strengthened liberal theory by stretching it far enough to accommodate the disabled and citizens beyond American shores, but not too far so as to break its fundamental tenets.

However, I am not persuaded that the “capabilities approach” is a workable way to achieve justice for animals. Although I anticipate many readers will be skeptical of the very notion of justice for animals, my critique stems from an ethical perspective that embraces animal liberation. In that context, I recognize [*429] that Nussbaum effectively confronts social contract theory’s exclusion of animals, which leads to the morally untenable result that a society can be just even if it allows animals to be killed, hurt, or humiliated. Nevertheless, Nussbaum has not demonstrated that her “capabilities approach” brings about more ethical treatment of animals compared to the Utilitarian approach. The Utilitarian approach to animal liberation, most notably advocated by philosopher Peter Singer (2002), evaluates the treatment of animals not by intrinsic rights as some philosophers do (e.g., Regan 2001). Instead, Utilitarians require animal treatment to be based on weighing the suffering animals experience against the benefits that humans receive when animals are used for food, clothing, entertainment, and research.

Specifically, Nussbaum unfairly criticizes Utilitarianism’s ability to develop a system of ethics that benefits animals. For example, she assails the Utilitarian approach because it takes note of the suffering of meat industry workers who will lose their jobs as more people become vegetarians (p.394). However, this is an empty charge because a Utilitarian could consider the loss of those jobs and still advocate complete vegetarianism. The amount of suffering resulting from the job losses is much lower than the amount of the intense pain, fear, and discomfort that the meat industry inflicts upon animals. Moreover, considering the job losses of the meat industry might spark policies to provide financial assistance and job retraining for those displaced workers, consequently reducing overall suffering. Nussbaum also argues that by focusing solely on pain and suffering, Utilitarianism does not necessarily view the “painless killing” of an animal to be “bad” (p.359). However, this charge is misleading because, as Singer writes, “it is not practically possible to rear animals for food on a large scale without inflicting considerable suffering” (Singer 2002, at 160). In fact, Singer explicitly rejects eating any animal (even crustaceans and mollusks) since they can feel pain, or in the case of mollusks there is the potential that they can feel pain (Singer 2002, at 170-178). Finally, Nussbaum’s condemnation of Utilitarianism, because its “indeterminate” aggregation of overall benefits versus suffering might yield “results that are extremely harsh toward a given class or group” (p.342), is off the mark. This criticism is valid for Utilitarian approaches to human justice, but because the nature of animal suffering is in a completely different class, it is not applicable when considering animals. The stark contrast between tortuous suffering experienced by animals used for food, clothing, and entertainment obviously outweighs the negligible benefits humans receive from eating meat, wearing fur, or going to the rodeo. As long as one accepts that animals should be included in the Utilitarian calculus, it is not possible under any aggregation technique to justify this form of cruel subjugation.

The “capabilities approach” also results in less ethical treatment of animals than the Utilitarian approach, and it causes Nussbaum to endorse immoral practices concerning the treatment of animals. For example, Nussbaum approves of [*430] keeping mammals in zoos as long as their capabilities are met. She cites as an acceptable method of satisfying a captive tiger’s need to hunt the Bronx Zoo’s practice of tying a ball to a rope in order to simulate a gazelle in the wild (pp.370-371). Aside from reporting that the “tiger seems satisfied” (p.371), she offers no evidence to support that this technique actually fulfils the tiger’s fundamental need to chase prey. More importantly, Nussbaum overlooks the fact that the process of preparing the captive tiger’s food results in more animal death and suffering than if the tiger were allowed to pursue prey in the wild. Based on a Utilitarian calculus, I maintain that zoos used for entertainment purposes are wrong under any circumstances because they greatly increase animal suffering and do not offer even remotely proportional benefits to humans. Nussbaum more severely undermines the “capabilities approach” when she concludes that it could compel humans to interfere in egregious cases when one animal harms another animal in the wild (pp.373-380, 399). Given the otherwise humble tone of FRONTIERS OF JUSTICE, I am surprised that Nussbaum would make the hubristic claim that humans should (or even could) interfere in nature. In the final analysis, it does not appear that liberal theory can be stretched far enough to include justice for animals. For over thirty years Singer’s Utilitarian approach has been the consummate method of justifying ethical treatment of animals, which is why Singer is universally regarded as the inspiration for the modern animal liberation movement.

My reservations notwithstanding, FRONTIERS OF JUSTICE represents significant progress in thinking about justice for the disabled and inhabitants of impoverished regions. Although, the section on justice for animals was ultimately not persuasive, Nussbaum still provides an erudite and engaging analysis of that critical issue.

REFERENCES:
Regan, Tom. 2001. DEFENDING ANIMAL RIGHTS. Urbana, IL: University of Illinois Press.

Singer, Peter. 2002. ANIMAL LIBERATION. New York: Harper Collins.

© Copyright 2006 by the author, Steven Tauber.

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SANCTUARY, SOVEREIGNTY, SACRIFICE: CANADIAN SANCTUARY INCIDENTS, POWER, AND LAW

by Randy K. Lippert. Vancouver, BC Canada: UBC Press, 2005. 240pp. Hardcover. $85.00. ISBN: 0-7748-1249-4. Paperback (2006). $29.95. ISBN: 0-7748-1250-8.

Reviewed by Samuel S. Stanton, Jr., Department of Political Science, Grove City College. Email: sstanton1 [at] charter.net

pp.423-426

SANCTUARY, SOVEREIGNTY, SACRIFICE; CANADIAN SANCTUARY INCIDENTS, POWER, AND LAW is an ambitious attempt by Randy K. Lippert to apply the theoretical framework of Foucauldian governmentality to the study of sanctuary incidents in Canada between 1983 and 2003. The work is informative in coverage of sanctuary events and innovative in approaching the study through a post-modern discursive critique of the nature of sovereignty and power. It also highlights intersections between the state, the church, and media.

Lippert’s work is based on interviews with sanctuary providers and supporters of the 36 sanctuary incidents that occurred from 1983 to 2003 in Canada. The typical providers and supporters of sanctuary in Canada were “middle-class, middle-aged, white Canadian citizens” (p.32). Providers for all 36 incidents were churches. Supporters came from a variety of groups including: labor representatives, students, women’s and human rights organizations (p.33).

The recipients of sanctuary in these cases were 261 migrants representing 28 different nationalities (p.36). Lippert’s work does not focus on these individuals or their motivations for attempting to migrate to Canada. We are told that all of these migrants had attempted to obtain status to allow them to remain in Canada through legal processes (p.37). In this work, it often seems that migration and sanctuary provide only a backdrop for discussing issues of governmentality.

Governmentality is based on postmodern political philosophy, primarily the work of Michel Foucault. Governmentality is based on an idea of embedded norms of understanding between participants engaged in a narrative. Outside of those who are part of the discourse, the narrative will have little meaning. Governmentality in this respect comes down to the shared ideas of power between state, community, and individuals. The problem with this type of account of power and governance is that “[l]anguages are not employed haphazardly . . . each must form its own rules and petition the addressee to accept them” (Lyotard 1984, at 42). This is to say that the very nature of the language used in the discourse is constantly evolving and has no rooted meanings that can be accepted as absolute truth, and that each discussion of governance requires each party to the narrative to create rules and petition the other participants to accept the rules as part of the new narrative of governance.

More precisely, as we are told by Lippert, governmentality based on [*424] Foucault’s writing has been refined greatly, but continues to rely on three concepts: programs, rationality, and technologies of government (p.4). Programs refer to ways of imagining government, organization and administering of social conduct. At the ultimate end of program is the creation of docile bodies, “bodies that may be subjected, used, transformed and improved” (Foucault 1977, at 136). Rationalities are the changing discourses which allow us to conceptualize and define the norms of behavior in a society, as exemplified in Foucault’s (1977) explanation of how discipline and punishment changed over time around the world as people informed governments of acceptable forms of discipline and punishment. Technologies of government refer to the material and intellectual means of governance (p.4).

Lippert’s discussion of sanctuary seeks to show that new ways of managing migrants emerged in Canada utilizing localized networks in place of national governance (the creation of a new program). These new programs were based on new rationalities (moral reasons for protecting migrants). The new programs and rationalities led to new technologies of governance (changes in the structures and rules dealing with migration issues).

More precisely, in the discussion of new programs and rationalities Lippert refers to how advanced liberalism affected refugee determination. Liberalism led Canada to sign the Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967), which in turn led to a new domain for governmentality—determining “who is a refugee” (p.44). This liberalism led to creation of new programs for dealing with refugees. By the late 1980s Canada was experiencing more than 10,000 refugee claims per year, creating a crisis for government resources (p.46). Because of advanced liberalism, however, it was not possible to stem the flow through mass deportation or not allowing refugees and migrants into the country. Stopping the flow would have led to spectacle, and spectacle is something that no government in an advanced liberal society desires.

Lippert tackles sovereignty, a difficult subject, in Chapter 4. Foucault’s (1977) conception of sovereignty is the availability of coercion and the ability to make and suspend laws. Perhaps the best lines of the entire book are found in this discussion. “Coercion and salvation are two sides of the same coin. It is not the outcome of a decision but the capacity to make the decision and to have it obeyed that renders the decision sovereign” (p.69). Lippert is not content merely to explain sovereignty but engages in an examination of spheres of sovereignty.

Lippert seeks to show that sovereignty rests in communities and churches as surely as it exists for the national and provincial governments. His discussion of sovereignty residing in multiple realms brought to mind the consideration of sovereignty in Calvin’s treatise ON CIVIL GOVERNMENT (1536) and Calhoun’s A DISQUISITION ON GOVERNMENT (1849). The [*425] main point of these works, particularly Calhoun’s, is that sovereignty resides in the people, and the people decide at what level it will be applied. Certainly the churches offering sanctuary exercised sovereignty—they did not have to grant sanctuary, and they could remove it at any time. And most assuredly, the Canadian government exercised sovereignty in having the right to make the ultimate ruling on the status of the refugees involved in the sanctuary incident.
What is confusing in Lippert’s discussion is that he then seeks to add another level of sovereignty at the ministerial level of government, based on the ability of a minister to issue a ruling on the refugee’s status (p.75). How a minister is different from government itself is not easily grasped. In fact, it is arguably the case that the minister, as a representative of the government, is the government in action.

The discussion of sovereignty does not forgo the issue of territory. Territorial control is one of the foremost points of sovereignty. Lippert’s argument is that the space of the churches used in the sanctuary incidents is effectively the same as territory occupied by a people, governed by a state within internationally recognized borders.

Another interesting discussion in this work is Lippert’s discussion of pastoral power. However, it becomes painfully obvious that the author has little understanding of clergy and their role, assigning attributes to clergy without truly realizing that there is considerable variation in their roles in the different Christian denominations.

While Lippert’s work fills an interesting niche – discussion of sanctuary movements outside of U.S. scholarship on the sanctuary movement of the early to late 1980s – his treatment of religion in the sanctuary issue is often lacking depth, starting with the claim on the book jacket that the phenomenon is often not primarily religious in orientation. If religion does not have a central role, why is it that every single sanctuary incident occurred in a church? If religion does not occupy the primary place, why have a chapter on pastoral power, and why discuss sovereignty and territorial issues in terms of the role of churches as sovereign and occupying territory?

There are also some interesting questions left unaddressed in Lippert’s work, including a missed opportunity to examine why the largest number of sanctuary incidents occurred in Montreal, as opposed to Toronto (the largest city) or Vancouver (a large port of entry for migrants). In addition, the real role of religion in the sanctuary process, which is a question of the greater importance of brotherly love versus acceptance of secular authority, is not fully addressed. Finally, one puzzling omission occurs in the first chapter where Lippert indicates that he will consider four theoretical governmentality issues, but he only lists three before moving on to discuss other critiques.

I would recommend Lippert to scholars who want a postmodern discussion of sanctuary. It would have some currency in a graduate course but would not be quality reading material for an [*426] undergraduate course considering the question of migration laws and sanctuary. If you are simply looking for a book that details migration, asylum, and sanctuary issues and laws in Canada, look elsewhere.

REFERENCES:
Foucault, Michel. 1977. DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON. New York: Vintage

Lyotard, Jean-Francois. 1984. THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE. Minneapolis, MN: University of Minnesota Press.

© Copyright 2006 by the author, Samuel S. Stanton, Jr.

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SEPTEMBER 11, 2001: A TURNING POINT IN INTERNATIONAL AND DOMESTIC LAW?

by Paul Eden and Thérèse O’Donnell (eds). Ardsley, New York: Transnational International Publishers, 2004. 880pp. Hardcover $145.00/£116.99. ISBN: 1-57105-326-3.

Reviewed by Priscilla H.M. Zotti, Department of Political Science, United States Naval Academy. Email: zotti [at] usna.edu .

pp.421-422

On March 21st and 22nd of 2003, a two-day international conference took place at the University of Sussex, England addressing the legal and international concerns as a result of the events of September 11, 2001. The work product of the conference, titled just as the resulting text, is a comprehensive set of readings which includes papers presented at the conference, commissioned pieces, and some previously published works.

It is interesting to note that the conference was held during the first 24 hours of OIF (Operation Iraqi Freedom) and the resulting book was written 1000 days after the attacks on September 11th. One could ask whether the authors have the benefit and advantage of hindsight. Is the analysis given too soon, without information being fully digested? That being said, the book poses a central question: What contributions can law make in a post-9/11 world? Did the 9/11 attacks constitute a defining moment in the post-Cold War world, and have the legal reactions created a new paradigm?

The book is divided into seven main categories: 911 as a turning point, the use of force and its legitimacy in response to terrorism, the concept of terrorism and global response, military tribunals and international human rights laws, European and Japanese responses to 911, domestic responses and questions of refugees, asylum seekers, and international law in light of September 11th. The volume contains twenty five chapters in all. Rather than discuss each one, I have selected those that struck me as compelling. En toto, the volume offers readers a broad perspective from which to view the legal implications in both domestic and international law after September 11, 2001.

One author described the search for a definition of terrorism in international law “almost as difficult as the quest for the Holy Grail.” The struggle to define terrorism in contemporary international law creates an international crisis of response since there is no agreed upon definition of what constitutes terrorism. Does the term “terrorism” have any specific legal meaning? Certainly this problem compounds the legitimate reactions of multinational conventions to cooperate, since different countries define and criminalize terrorist behavior in a variety of ways.

The section of the book on military tribunals and international human rights law is interesting for the legal wrestling that takes place in dealing with prisoners of war and enemy combatants. Through the use of presidential orders, military tribunals, and the Geneva Convention, each writer struggles with the legal tools [*422] that best safeguard human rights while punishing terrorist acts. Ruth Wedgwood in her piece, “Al Qaeda, Military Commissions and American Self-Defense,” concludes that military tribunals are necessary to cope with prosecuting Al Qaeda and are not inconsistent with international law. Other writers take to task the role of presidential orders as a legal tool of detention, particularly focusing on the most well known detention facility, Guantanamo Bay, Cuba. There is some analysis of the Supreme Court detention decisions, RASUL, HAMDI, and PADILLA. In addition, one very interesting contribution focuses on the nine detainees holding citizenship in the United Kingdom. The author considers the legality of Bush’s detainment under presidential orders and the response of the British government, an ally in the war on terror.

Many of the authors in this collection argue the significance of 9/11 as a catalyst for change that would not have otherwise occurred. The reaction in the European Union included reforms of better communication and information sharing between national authorities as well as the advent of the European Arrest Warrant. Japan experienced a similarly intense pro-US reaction which also included dramatic legal amendments to portions of their Constitution. Changes by the United Nations Security Council may have materialized as a reaction to and in the aftermath of 9/11.

Was there a general shift in law between the benchmarks of liberty and security? Is 9/11 a turning point in the use of legal tools to combat terrorism or has the international community gone past the “tipping” point in defining the terms of terrorism in its zeal to respond? This collection of essays encourages the reader to consider this question carefully. While the book may have been published too soon after the events of 9/11 to be thorough or reflective, its value lies in chronicling the immediate response of domestic and international lawmakers who saw law as an avenue to address terrorism. That is the primary contribution of this work: illustrating the infancy of the law as a tool to fight the “new” war on terror. The reader may be left frustrated since there is no conclusion one way or another about the legal watershed of September 11th. As the final paragraph of the book ponders, did the world legal order change post-9/11 or remain the same? The answer: “Definitely Maybe.”

CASE REFERENCES:

HAMDI v. RUMSFELD, 124 S.CT. 2633 (2004).

RASUL v. BUSH, 542 US 466 (2004).

RUMSFELD v. PADILLA, 124 S.CT. 2711 (2004).

© Copyright 2006 by the author, Priscilla H.M. Zotti.

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