THE RIGHT TO SPEAK ILL: DEFAMATION, REPUTATION AND FREE SPEECH

by Russell L. Weaver, Andrew T. Kenyon, David F. Partlett and Clive P. Walker. Durham, North Carolina: Carolina Academic Press, 2006. 348pp. Cloth. $45.00. ISBN: 0890894892.

Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross. Email: cdubnoff [at] holycross.edu.

pp.565-571

The Supreme Court’s recent decision holding that the death penalty could not be imposed on individuals who were under the age of eighteen when they committed their crimes (ROPER v. SIMMONS 2005) generated a strong dissent from Justices Scalia and Thomas and the late Chief Justice Rehnquist, not only for its conclusion, but also for its reference to foreign and international law as a source of guidance regarding evolving standards of decency. While the justices debate the utility and legitimacy of seeking guidance from foreign law and opinion in constitutional interpretation, legal scholars are increasingly attempting comparative analyses. A comparison of the state of defamation law as it has evolved in different democratic nations, especially between countries that share common-law traditions, have been the focus of much recent writing. A central problem, as many have noted, is that defamation law involves a tension between two of democracy’s most important values: commitment to free speech, essential to open debate about public affairs and to individual development and autonomy, and a competing concern for an individual’s reputation as essential both to human dignity and to the good functioning of democratic government. Interest in defamation law is important as well because of the spillover effect from one jurisdiction to another as a consequence of the globalization of information, placing publications in legal jeopardy outside the jurisdiction of origin. In support of the importance of such studies, there are sufficient commonalities of culture, history and values among many democratic nations to allow for a meaningful assessment of the impact of whatever differences are found.

THE RIGHT TO SPEAK ILL falls within the stream of this growing body of literature. It begins with a comparison of doctrinal developments in defamation law in Australia, the United States and England in order “to understand how defamation protections provided in the three countries, all based on a common recognition [of] a right of free speech, function in practice” (p.14). What sets this work apart is its effort to look at actual media practice in order to “assess how [these rules] affect the free speech- reputation trade-off” (p.14). THE RIGHT TO SPEAK ILL is the first book to my knowledge that attempts to assess the impact of defamation law on media behavior by using extensive interviews with reporters, editors, and lawyers connected with the media. Some of this work has appeared in more limited form in earlier law review articles by the authors, Russell Weaver, Andrew Kenyon, David Partlett, and Clive Walker. The empirical data are of [*566] impressive scope, contributing greatly to the book’s value. In other scholarly writing, the desirability of various doctrinal developments tends to be based either on anecdotal evidence or on untested assumptions. The work here is therefore innovative and important.

I found the doctrinal discussion, however, to be rather uneven. It provides a generally accurate broad overview of the relevant history, but it is often not well sorted out, and much of the examination of details is hard to follow. Furthermore, the assessment of how legal rules are implemented in various lower courts is under-developed, with little attention given to judicial and jury responses to specific litigation. These are important to an understanding of the operation of legal rules.

Chapter 1 provides an overview of the issues, the relevant legal history, and the authors’ objectives. As noted above, the three nations under study share a commitment both to free speech and to reputation. Initially they also employed a similar approach to weighing those issues, based on English common law under which reputation was favored. However in 1964 as a consequence of efforts to use defamation law in the American south to stifle criticism from civil rights leaders, the US Supreme Court, in NEW YORK TIMES v. SULLIVAN (1964), took a different path, and began a process of giving constitutional protection to some aspects of allegedly defamatory speech. This shifted the balance in the US more toward free speech, at the expense of the protection of reputation. Australia and England have also become more protective of free speech values in recent years, but they did so considerably later, and to a more limited degree. The introductory chapter also considers the broader history of state regulation of public speech, focusing on the history of seditious libel. These laws initially criminalized speech, especially truthful speech, that “criticize[d] the government or governmental officials” on the grounds that such speech “inculcated a disrespect for public authority” (p.6). Here also, the US took a more speech-protective course. Seditious libel is no longer considered constitutional, but it continues to be considered a crime in Australia and Great Britain. The chapter concludes with a list of questions that frame the analysis in the chapters that follow: “How do defamation laws vary? How do the variations affect the press and press practices?” The authors also promise some assessment of standards.

While the authors are correct to see a close connection between seditious libel and defamation law, the related discussion is far lengthier than merited. On the other hand, it would have been helpful at this point if the authors had more fully developed their rationale for exploring how the rules “function in practice.”

Chapters 2-4 are designed to explain the defamation rules and their operation in each country under study. Chapter 2 focuses on the common law and gives a clear account of its role in producing defamation rules that generally protect reputation over free speech. Defamatory statements were assumed to be false, placing the legal burden on defendants to prove that they were true or fit within [*567] very limited areas where speech was not actionable.

Chapter 3 presents a thorough history of American defamation doctrine from SULLIVAN (1964) to the present, with extensive descriptions of significant Supreme Court decisions, as well as substantial excerpts from several key cases. Like so many other legal developments, the constitutionalization of defamation law grew out of the Civil Rights movement. Prior to 1964, defamation was controlled by the states and followed common law, which favored reputation over speech. Southern efforts to use defamation law to stifle criticism from civil rights activists prompted the Supreme Court to reconsider its position. A defamation suit was filed against the New York Times for publishing an advertisement highly critical of Southern officials’ actions against civil rights leaders. The advertisement was broadly accurate but contained factual errors, and these errors were sufficient to make the New York Times liable under common law. That suit led ultimately to SULLIVAN (1964), in which the Court held that speech about government officials, even false speech, came under the protection of the First Amendment and could only be punished if made with “actual malice”—that is, “with knowledge that it was false or published with reckless disregard for whether it was false or not” (p.47). In a series of subsequent decisions, the Court extended application of the “actual malice” standard to public figures, but not to private individuals engaged in issues of public interest. The standard was thus controlled by the status of the person rather than the nature of the issue. The burden was now on the plaintiff to prove falsity, and damages for injury could only be awarded if the plaintiff could prove “actual malice.” Following shortly thereafter, the Court, in ROSENBLOOM (1971), appeared on the verge of shifting focus from the party to the surrounding issue, a move that would have expanded press protections. Later cases seemed to be more sympathetic to reputation. The GERTZ (1974) Court refused to extend the “actual malice” standard to a private individual engaged in an issue of public interest. However, under such circumstances, damages were limited to actual injury, rendering such lawsuits unprofitable. The chapter goes on to describe later cases where the Court grappled with defining public figures and with distinguishing actionable opinions from those that are not. The Court has never retreated on its core position articulated in SULLIVAN, limiting defamatory actions where these would impinge on debate over public issues, and American law has thus remained quite speech protective.

Chapter 4 examines the Australian and English approaches to defamation. The discussion is extensive, complicated, and at times hard to follow. The broad picture is that until the 1990s both countries followed a generally parallel course, guided by English common law which, to restate, favored the protection of reputation over free speech. The rules of evidence, presumptions, and burdens of proof all favored plaintiffs. There were only a few areas where the media could report without significant fear of liability. [*568]

Both countries, following a general trend in the 1990s among Western democracies toward increased appreciation of the importance of free speech, adopted a more speech-protective position. The legal basis for this shift differed in the two countries, but the general course was a parallel one. The touchstone in Australia occurred in 1994 when the Australian High Court decided THEOPHANOUS v. HEARD & WEEKLY TIMES. Unlike the US Constitution, the Australian Constitution has no Bill of Rights and therefore no explicit protection for speech. The Australian Court however found an implied right in the Constitution’s commitment to democratic government and used this implied right as basis for expanding media protections. England moved in a similar direction, though the grounding was different. The European Court had an influence that it did not in Australia; there was more legislative involvement and no constitutional justification.

However neither country provided the media with the level of protection it received in the US. In the end there seems to be less, especially in Australia, in these speech protective decisions, than meets the eye. The authors contend that the Australian High Court retreated from THEOPHANOUS in the subsequent case of LANGE v. ABC (1997) in several ways. THEOPHANOUS had held that the defendants in defamation cases were not liable when they were speaking about political matters. Lange narrowed the meaning of “political communication and added the requirement that the publication be “reasonable” (p.85).

The developments in England are viewed more positively. The pivotal case was REYNOLDS v. TIMES NEWSPAPERS, decided in 1999 by the House of Lords. There were significant developments that led up to this case, including changes in Civil Procedure Rules and two decisions by the European Court implementing the European Convention on Human Rights and Fundamental Freedoms. These gave increased weight to speech over reputation and reduced allowable money damages. There was also movement in English case law, including DERBYSHIRE COUNTY COUNCIL v. TIMES NEWSPAPERS (1993), which offered an absolute defense for some speech but had very limited application. The authors then examine REYNOLDS in detail. Their central observation is that this decision expanded the scope of the qualified privilege from publication only about political affairs to publication of material with broader public interest (p.103). The authors also point to speech-protective rhetoric in the decision. However, there was an important caveat – the protection was available only as long as the press acted responsibly (p.105). The authors then discuss the list of factors to be used to determine whether this requirement has been met, with the potential to be very intrusive on the press (p.103). The reader is left to decide what factors led to the assessment that REYNOLDS was indeed a substantial advance. The authors consider some lower court responses to REYNOLDS, thus allowing some judgment regarding implementation.

The purpose of this section is to explore the developmental history and actual [*569] operation of defamation law in each country. Although the description of Australian law is often opaque, the section offers a great deal of information, particularly about doctrinal developments. A much clearer description of Australian law can be found in an article by Susanna Fischer (2002).

Weaver and associates are less successful in attending to the operation of the rules. The chapter on REYNOLDS is the strongest, providing a careful examination of how English lower courts responded to this decision. By contrast, the chapter on US defamation law gives almost no attention to implementation in the lower courts. What really happens in defamation trials? How often do judges grant summary judgment? Does the “actual malice” standard, as many commentators, such as Lucas A. Powe (1991), have charged, change the focus at trial from truth to press behavior? To be fair, some of this material appears in later chapters, but it lacks the same force as it would have here and is still incomplete. As a matter of style, the authors use the word “Court” to refer both to the Supreme Court and to lower courts, and it is not always immediately clear to which tribunal they are referring. I noticed a factual error as well—the brief pre-SULLIVAN history incorrectly places the application of the First Amendment against the states in CANTWELL v. CONNECTICUT (1940). It actually occurred significantly earlier, in GITLOW v. NEW YORK (1925).

The second half of the book is very different. It attempts to assess the consequences of legal rules by determining how the media have acted in different legal settings. The data are drawn from interviews the authors conducted with reporters, editors, and defamation lawyers. A broad range of media, large and small, national and state, print and broadcast, is covered. The interviews in England and Australia were conducted both before and after significant doctrinal shifts. Since the US changed direction much earlier, only one set of interviews was conducted.

The authors offer a number of interesting observations based on their interview data. Not surprisingly they find that legal rules matter. The media and press in the United States pay far less attention to defamation law when deciding what and how to publish than they do in England and Australia. The media in England in the pre-REYNOLDS period were far more cautious than they were afterwards. The LANGE decision, by contrast, had far less effect. And the media and press felt more constrained in Australia than in England. In England, not only did the media act quite differently after REYNOLDS, but given the decline in defamation suits reported, so too apparently did plaintiffs.

There is much more in the details. What follows is a sampling of some of the more interesting points. In pre-REYNOLDS England, the media claimed that defamation rules limited their reporting. Articles were reviewed prior to publication by defamation lawyers, their objective being to allow as much publication as possible while [*570] insulating the media from litigation. That practice, in turn, shaped how stories were reported and who was covered by the press. Litigious individuals were often given a pass. Truth was a defense, but prior to REYNOLDS, with the burden of proof placed on the defendant, the British media were often unwilling to publish material that they believed to be true if they were not sure they could prove it in court.

The book concludes with an assessment of the competing standards. Acknowledging once again that defamation law involves a clash of values, and that the trade-offs are more appropriate fodder for the political process, the authors focus on the consequences of different rules for these competing values. They begin by dismissing the common law approach as insufficiently protective of free speech. Most of the final chapter is occupied by an evaluation of US defamation law, specifically the “actual malice” standard and the consequences of law based on the status of the individual rather than on the nature of the issue. They contend that the “actual malice” standard does protect speech, rejecting the argument that it “chills” expression. Their interviews with members of the US press did not reveal such a “chill.” The authors also point to the absence of a “defamation bar” in the United States, an entity that still exists in England and Australia. They acknowledge the concern that litigation under the “actual malice” standard can be costly, but they contend that the problem is minimal because there is very little such litigation. The expected level of compensation is often too low to make litigation worthwhile, and “few plaintiffs succeed in obtaining an enforceable judgment” (p.251). The authors base their conclusions on statistics from the Media Resource Law Center and on secondary literature. They make a good case, but one does wonder how much weight to give to data that is self- reported. A more important problem is that smaller newspapers, for which even an occasional defamation award can be disastrous, are not considered. The authors are more sympathetic to a very different objection – the claim that the “actual malice” standard does not sufficiently protect reputation. On this issue, however, the evidence is sparse.

Assessment of the US is concluded with an argument favoring a change in focus from the defendant’s status to the issue under discussion. Such a shift would at least partially address the problem of lawsuits by corporations intended to chill criticism, the so-called SLAPP (Strategic Litigation Against Public Participation) litigation, and makes more sense generally if the concern is debate over public policy. The point is valid but not particularly related to the empirical data.

Overall, the RIGHT TO SPEAK ILL adds a great deal to our understanding of defamation law. It is not, however, always easy to digest and would best serve as a reference or addition to an advanced course on the First Amendment and the media.

REFERENCES:
Fischer, Susanna Frederick. 2002. “Rethinking Sullivan: New Approaches in Australia, New Zealand, and England.” 34 GEORGE WASHINGTON INTERNATIONAL LAW REVIEW 101. [*571]

Powe Jr., Lucas, A. 1991. THE FOURTH ESTATE AND THE CONSTITUTION: FREEDOM OF THE PRESS IN AMERICA. Berkeley, University of California Press.

CASE REFERENCES:
CANTWELL v. CONNECTICUT, 310 US 296 (1940).

DERBYSHIRE COUNTY COUNCIL v. TIMES NEWSPAPERS [1993] A.C. 534.

GERTZ v. ROBERT WELCH, 418 US 323 (1974).

GITLOW v. NEW YORK, 268 US 652 (1925).

LANGE v. ABC (1997) 145 ALR 96.

NEW YORK TIMES CO. v. SULLIVAN, 376 US 254 (1964).

REYNOLDS v. TIMES NEWSPAPERS [1999] 4 All ER 609.

ROPER v. SIMMONS, 543 US 551 (2005).

ROSENBLOOM v. METROMEDIA 403 US 29 (1971).

THEOPHANOUS v. HEARD & WEEKLY TIMES (1994) 124 ALR 1.

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© Copyright 2006 by the author Caren G. Dubnoff.

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MAPPING MARRIAGE LAW IN SPANISH GITANO COMMUNITIES

by Susan G Drummond. Vancouver: UBC Press, 2005. 288pp. Hardcover. $85.00. ISBN: 0-7748-0925-6. Paper (2006). $29.95. ISBN: 0-7748-0926-4.

Reviewed by Kisch Beevers, School of Law, University of Sheffield. Email: k.a.beevers [at] sheffield.ac.uk.

pp.561-564

On reaching the end of this extremely complex book and reflecting on the whole, it is awe-inspiring to remember that it has been written by a single author. The exactitude of its title can only really be appreciated through devouring its contents as Susan Drummond skilfully guides the reader through a maze of disciplines informing an intriguing depth of analysis. This analysis is tantalisingly punctured occasionally by short forays into a description of the author’s experiences within the Gitano community of Jerez de la Frontera, Andalucia, offering light relief from the complex critical analysis but at the same time being reflective of it. Although each chapter is somewhat distinct from the others, this is not a book that should be read out of order or in parts, because the multiplicity of its themes and arguments are integral parts of the thesis as a whole. The central paradigm unifying the scales of this thesis is the un-enacted common law (ius commune) rules of the Jerezeano Gitano marriage rites, but if the reader is expecting the extrapolation of a Gitano marriage code, then he will be disappointed.

The style and prose of the introduction are rather theatrical, setting the scene of the ‘play’ that is to follow and promising to take the reader through a journey of discovery that seemingly parallels the journey undertaken by Drummond in her research and writing. Although points are occasionally slightly over-worked in this initial chapter, the superb imagery employed in scene setting makes the reader hungry to begin the book’s journey but at the same time reticent to leave its prologue, where the reader is seduced and captured by techniques that lure him into a greed often witnessed in fictional novels of great worth. A metaphoric map highlights this interdisciplinary itinerary between comparative law and legal anthropology with Drummond warning that, as such, the strict rigor of each of the disciplines is limited during the development of the “unstable model of the interactions between the scales of the local, the national, and the global.”

The book is then divided into three main chapters each identifying a different scale of concentration. In each of these chapters the analytical text is interjected with short insights into Spanish culture, more specifically the culture of the Jerezeano Gitano communities. These interjections on one level are snapshots of events that took place during Drummond’s seven-month stay in Andalucia, but they also serve to underline, and in a sense give authority to, the analysis of the main text.

The first chapter concentrates on the scale of the state through a discussion of the development of modern Spanish [*562] family law and analysis of the reforms of the last fifty years or so. Almost obviously, the majority of the chapter is given to the socio-historical influence of the Catholic Church on Spanish family law particularly in the realms of marriage and divorce. Here the reader finds the importance of not only the power of the Church and the reinforcing agreements and unifying laws, but also the significance of the Second Spanish Republic, the internationalisation of Spain, socio-economic changes of the 1950s, the changing role of women from juridical inferiority to formal equality, and, of course, of hispanidad. The scenes in this chapter are drawn from the celebrations of Holy Week in Jerez, dramatising the struggle between State and Church, as the processions take on an unorthodoxy that underlies the emerging loosening of Church control.

It is perhaps in this first chapter that the limited rigor of the disciplines is most keenly felt. Although the chapter claims to address national Spanish family law and trends, almost all of the examples and illustrations are drawn from the Andalucian microcosm as if representative of the whole of Spain, rather than just one of the many extremely diverse cultures and socio-historical peoples that influenced the development of the Spanish state. The dangers of over-representing Andalucia as representative of the state is reflected in the omission of the formal legal division of competence between State and Comunidad Autónoma (Autonomous Community). Moreover, a mere mention of overriding local customary laws applicable in many parts of the state (derecho foral) is relegated to the middle of the second chapter, and there is no consideration of recent family law developments of same-sex marriages and ‘common law’ marriage registration.

The book as a whole contains a wealth of references to and analysis of many celebrated writers on the dominating themes of each chapter, but none more so than here in the first chapter where Drummond challenges, occasionally critically, the thesis of Kahn-Freund (1974). Although she accepts that the Spanish law reforms of the last 20 years tend to confirm Kahn-Freund’s ‘thesis about the increasing homogenisation of family law in urban, industrial states,’ she also at times identifies that changing power of church on state is more complex than he made out.

Whereas the first chapter concerns the ‘scale of state,’ the second chapter moves on to a consideration of the ‘scale of culture.’ Drummond explains: “[T]he emphasis here is on the construction of culture, including the ways which cultures are delimited and reinforced by law.” Here the reader is introduced to the lives and culture of the gypsy peoples of Jerez de la Frontera, specifically the Gitano/Flamencos, a mix of ancient peoples who came to this area of southern Spain by way of northern Africa. This chapter also contains an interesting exploration of the origins of the gypsy peoples and their linguist connections to Sanskrit and Hindustan. Much comparison is drawn between these Spanish Gitanos and the Roma as analysed by Weyrauch and Bell (1993).

The snapshots of this second chapter are of encounters with a variety of Jerezeano [*563] Gitanos, highlighting their poverty, their preference for colourful dress, the variety of ways to acquire money from those they meet, and the pollution code that dominates their lives. These snapshots are linked to the theoretical discussions of legal pluralism and the autonomous systems of law existing within and alongside official state law. They also set the scene for a consideration of the socio-historical thesis linking the emergence, treatment and identity of the Spanish gypsy to early state formation, exploring their historical development against the backdrop of persecution exemplified by the disastrous round-up and incarceration of Spanish Gitanos in 1749. The chapter draws to a close with a discussion of gitanitude, using a skilful analysis of the attempted marginalisation of an upwardly mobile Gitano lawyer, as well as a consideration of pure flamenco, its relationship to gitanitude and its incorporation into Gitano culture.

Chapter Three brings together the analyses of the previous chapters through the introduction and discussion of the specific within the general. In this chapter Drummond looks closely at the family law of Jerez’s Gitano communities while identifying and analysing the relationship between state law and customary law through a discussion of Tulley’s concept of the hidden constitution and a consideration of the complexities of common law (ius commune). This discussion of enacted and un-enacted common law and the concept of the ‘hidden constitution’ is used by the author to mount a scathing attack on the European Union’s quest for harmonisation of private law, charging the civil lawyers with a complete lack of understanding of the importance of the hidden constitution embedded in the English common law. Although seemingly out of place at first reading, this section does cause the reader to reflect and realise that the chapter’s focus, although based on Gitano marriage, does have a much wider impact that is symptomatic of the complexity of this work.

In between theoretical analyses, the reader here discovers the intricacies of the Gitano marriage laws from the pedimiento (asking of the hand), the testing of virginity, through to the point at which the couple are considered married, only then to discover that there is no set of rules to which the entire community adheres that can be identified as a marriage code. Indeed, the chapter finishes by asking the question ‘what is the general form of Gitano family law?’ Much richer, longer, snapshots of Gitano marriage incidents are described as custom or personal choice rather than ‘law’ since each incident initially explored as ‘law’ is countered by generalised exceptions pointing to the opposite being more a part of ‘law’ than the incident itself. Each so-called marriage evidences such diverse incidents that, as Drummond states, it is “tempting to conclude . . . that there is no such thing as Gitano family law.” There is no single thread, no unifying rules, but each incident signifies a symbolic and public act underlying the pluralist and inclusive understanding of what law is, and the understanding of the ius commune that changes and develops with history and influence. [*564]

Finally a short concluding chapter returns to the theme of cartography as introduced in the introductory chapter, underlining the complexity of the issues confronting comparative law and legal anthropology. By showing that the Gitano communities of Jerez de la Frontera do not fit in any of the accepted models in either discipline, that there is plurality in the un-enacted ius commune, Drummond concludes that European family law can only really be understood by analysing the multiplicity of its landscape.

Overall, Drummond has written a challenging, inter-disciplinary, sophisticated, complex, and multi-level study of the Jerezeano Gitano marriage laws within their socio-historical, national and international context that is a masterpiece of research and scholarship.

REFERENCES:
Kahn-Freund, Otto. 1974. “On Uses and Misuses of Comparative Law.” 37 THE MODERN LAW REVIEW 1-27.

Weyrauch, Otto Walter, and Maureen Anne Bell. 1993. “Autonomous Law Making: the Case of the Gypsies.” 103 THE YALE LAW JOURNAL 323.

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© Copyright 2006 by the author, Kisch Beevers.

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BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE ADMINSTRATIVE STATE

by Harold H. Bruff. Durham, North Carolina: Carolina Academic Press, 2006. 560pp. Cloth. $55.00. ISBN: 1594601291.

Reviewed by Joseph L. Smith, Department of Political Science, The University of Alabama. Email: josmith [at] bama.ua.edu.

pp.558-560

Harold Bruff’s BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE ADMINISTRATIVE STATE provides a very comprehensive (even encyclopedic) and thorough description of the legal structure of the US systems of separation of powers and checks and balances. This book is an excellent source of information on the theoretical basis of the system of separated powers, how it has worked in practice over the history of the US, and court decisions interpreting and structuring the relations among the branches.

The book is written in an engaging style. Historical episodes are described in lively ways, and legal jargon is explained thoroughly in terms that non-lawyers can understand. The branches are not discussed in isolation; Bruff emphasizes that the limits of one branch’s powers define the borders of other branches’ autonomy. In each of the areas it covers, the book describes notable controversies, historical disputes, and relevant court decisions. I cannot think of a single area of potential controversy over the powers of the three branches that is not thoroughly covered.

In relation to the executive branch, Bruff discusses (among other subjects) the limits of executive authority under statutes and the Constitution, the scope of the president’s authority to act by executive order, the circumstances under which the president’s actions are subject to review by the courts, the scope of the various legal doctrines that insulate presidential actions from such review, the presidential veto, and presidential discretion over government spending.

In relation to Congress, the book’s subjects include the limits of congressional power to delegate to other branches, Congress’ role in the appointment and removal of judges and executive branch officials, Congress’ right to manipulate the jurisdiction of the federal courts, control over government spending, Congress’ authority over its own membership, privileges, and procedures, and congressional authority to regulate and investigate presidential actions.

With regard to the judiciary, Bruff covers approaches to legal analysis of separation of powers issues, the appropriate role of courts in enforcing the principles of separation of powers (including threshold questions that allow courts to avoid disputes), the role of courts in impeachment proceedings, doctrines that protect judicial autonomy and doctrines that shield particular information from judicial inquiry.

Unlike the list of subjects above, the book is organized around four principles that Bruff asserts should structure the [*559] separation of powers system: insuring executive compliance with statutes, balancing the autonomy and accountability (with an emphasis on accountability) of each branch, maintaining the separation between executive and legislative personnel, and maintaining the overall balance of powers among the branches. These principles are quite broad, and Bruff’s theoretical argument is not explicitly emphasized in his descriptions of the various areas of controversy. Nor does the book routinely contrast Bruff’s approach to these controversies with other approaches. Therefore, the theoretical element of the book, though present, is subordinated to description. This is not a weakness. An overtly theoretical treatment of these controversies would be difficult, given the vast number and variety of subjects the book covers. Trying to maintain a focused theoretical argument throughout would distract the reader and steer the author towards shoehorning events into a narrow theoretical frame.

For most political scientists, this book will offer two primary benefits. First, its comprehensive treatment of separation of powers controversies will inform theory-building about how the branches interact and how controversies are resolved. Bruff’s descriptions of controversies are a valuable database, showing which branches have pushed particular understandings of the system in specific contexts. Also, his exhaustive coverage of inter-branch disputes means that almost every reader will be introduced to some disputes for the first time and will learn more about other disputes.

Second, the book presents a legal perspective on the disputes considered. In his descriptions of episodes and disputes related to the separation of powers, Bruff emphasizes constitutional theory, precedent, the unique characteristics each branch, historical practice, and implications for the health of the political system. His presentations take seriously the legal and constitutional arguments put forth by contestants in these disputes (Although it is true that in the last decade or so historical institutionalists within Political Science have considered many of the same types of factors upon which Bruff focuses). Factors that political scientists have tended to emphasize, such as public opinion, interest groups, elections, and the motivations of the various actors, are rarely considered. Understanding this perspective will help political scientists broaden their understanding of separation of powers and allow them to confront arguments made by legal academics.

Although this text is very valuable, there are ways that it could have been improved. The opening sections are not sufficiently integrated into the book’s core, which consists of descriptions of separation of powers controversies. The first three chapters contextualize the Constitution’s system of separation of powers and provide abstract descriptions of methods of interpretation. The book opens with a history of the idea of separation of powers, starting with its origins in Greece and Rome and its treatments by Locke and Montesquieu. It then describes the way that these ideas were understood and implemented in the American colonies, the Articles of [*560] Confederation, and the US Constitution. Although this material is relevant, the themes developed in these early chapters are not notably carried through the remainder of the book.

Overall, BALANCE OF FORCES is a valuable reference for anyone interested in historical controversies related to the separation of powers and the way US courts have interpreted the requirements of the Constitutional system of separated powers.

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© Copyright 2006 by the author, Joseph L. Smith.

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THE EUROPEAN EMPLOYMENT STRATEGY: LABOUR MARKET REGULATION AND NEW GOVERNANCE

by Diamond Ashiagbor. Oxford, UK: Oxford University Press, 2005. 384pp. Hardback. $110.00/£60.00. ISBN: 0199279640.

Reviewed by Lawrence E. Rothstein, Department of Political Science, University of Rhode Island. Email: LER [at] URI.EDU

pp.555-557

Although this volume is chocked full of information and takes a position I agree with, I found it confusing and ultimately unconvincing. Diamond Ashiagbor analyzes a mass of EU and OECD documents to trace the European Employment Strategy and to suggest that the strategy relies heavily on an open method of coordination, or “soft coordination,” allowing national variation rather than reliance on mandatory law and centralized EU regulation. The employment strategy relies on guidelines, best practice examples and reporting requirements rather than directives dictating EU-wide outcomes. Overall, however, Ashiagbor concludes that this strategy has still privileged the deregulatory, social welfare reducing, employment creation policies embodied by supply-side oriented OECD pronouncements. EU employment policy has emphasized employment numbers to the detriment of employment quality and social justice.

The language of the many EU documents relied upon for evidence is largely precatory, and there is little analysis of the details of national policies and politics in response to these documents. Furthermore, Ashiagbor is also at pains to show that the documents leave open the path to a social justice oriented European employment policy and to suggest that some countries are following such a path more closely without necessarily producing less favorable employment numbers. Thus, my confusion and failure to find the central argument supported clearly by the evidence, despite the argument’s intuitive attraction. Of course, reality is often not tidy. Both lawyers and economists have been known to prefer documentary analysis or deductive reasoning from pure assumptions to immersion in the empirical data.

Chapters One, Two and Three take on neoclassical economic theories of the role of law and regulation in labor markets and economic policy. Ashiagbor debunks the neoclassical assumption that beyond basic property and contract law, legal regulation of markets is an interference with efficiency. She suggests that legal regulation is necessary to construct and maintain markets and that markets without adequate legal regulation to support mutual trust are unable to create cooperative long-term action which is the central purpose of the employment relation. She notes as well that there is no evidence that more rigorous employee protection regulation reduces employment or creates unemployment. There is also some evidence indicating that certain kinds of employee protection regulation, for example working hour reductions, increases employment. [*556]

Ashiagbor takes issue with the notion that there is a “U.S. employment miracle” spurred by deregulatory policies and lionized in OECD documents that should be emulated by the EU. She points out problems of data comparability and interpretation such as what to do with the comparatively massive U.S. prison population. She notes that the recently lower U.S. unemployment rates and higher EU rates do not correlate historically with differences in regulation. Looking at individual European countries, particularly the Netherlands and Scandinavian countries, she shows that recent major increases in employment and decreases in unemployment have coexisted with strong employee protection and generous social welfare programs. As 2004 OECD data indicate, Sweden, Norway, the Netherlands, Luxembourg, Iceland, Denmark and Austria all had lower unemployment rates in 2003 than the U.S., and several of these countries also generated as great or greater percentage increases in their civilian employment than did the U.S. in the 1993-2003 period. Ashiagbor notes that OECD data do not back the OECD’s own deregulatory/flexibility policy prescriptions. Finally, she takes up the social justice perspective arguing that the EU should not focus solely on improving employment generation when such a perspective leads to lessening employment quality and security, income inequality, increasing poverty and less effective participation in the decisions that greatly influence the quality of individual and family life.

Chapter Four contains a detailed, heavily footnoted analysis of the evolution of EU employment policy in major documents, from 1997 and the Treaty of Amsterdam, through the Lisbon Council of 2000, to refinement of the “Lisbon strategy,” up to early 2005. This process began with the rejection of expansionary fiscal and monetary policies to achieve “full employment” and with the tying of EU employment policy to voluntary guidelines subject only to the mandatory fiscal and monetary requirements establishing the European Monetary Union. Thus the subordination of social and labor policy to fiscal and monetary policy was affirmed, if still contested by a few Member States and the European Parliament. The language of “full employment” was changed to “high levels of employment” to be achieved by increasing labor market and managerial flexibility. But the power of the EU under the employment policy articles of the Treaty of Amsterdam was considered only “supplementary” to that of the Member States and thus to be achieved by studies, guidelines and reporting requirements rather than mandatory goals or targets. This is what Ashiagbor refers to as “soft law.”

By the time of the Lisbon Council in March 2000, however, many of the Member States’ electorates proved intransigent regarding major changes in employment protection and social welfare policy. Furthermore, the data noted above, indicating that deregulation was not clearly correlated with improved employment, had grown. The Lisbon Strategy coming out of this Council attempted the reintegration of social and employment policy, arguing that high levels of employee protection and a strong social welfare system could help [*557] foster high quality employment. This encouraged development of Third Way policies, promoting entry into and transition between jobs through improved training, family leave and support, prevention of discrimination and exclusion and active labor market policies. Procedurally, as Chapter Five indicates, great weight was placed on requiring Member States to submit for comment to the European Commission and then carry out individual National Action Plans (NAPs) for employment that promoted the goals of improving employability, entrepreneurial activity, adaptability and equal opportunity. By 2005 it was clear that the Commission’s comments on and efforts to urge performance of the NAPs, struck a balance strongly in favor of measures to increase national economic competitiveness.

Chapter Six and the short concluding chapter test effectiveness of the “soft law” method for harmonizing EU employment policy in light of continuing Member State opposition to granting the Commission plenary power to set employment policy by directive. Ashiagbor concludes that this open method of coordination has been reasonably effective. Using the examples of the UK and the Netherlands, Ashiagbor demonstrates how similar labor market reforms have been pursued in two countries with very different perspectives on social policy. Both countries have moved to flexibilize employment through investment in human capital and the emphasis on continued access to quality employment, including increased part-time work, rather than a stable job. Yet the Netherlands maintains significantly more committed than the UK to employment protection regulation and a very strong social welfare policy. These differences, however, are limited as well by the mandatory adherence to the fiscal and monetary policies promulgated by the Commission to maintain the European Monetary Union.

In the end Ashiagbor still warns of the dangers of eschewing social justice criteria for economic ones. This warning would have been bolstered by more attention to the national political forces supporting and opposing deregulation and the dismantling of worker protection and social safety nets, and how these constituencies bring power to bear inside the EU. There are many, and I suspect that Ashiagbor is one, who would argue that the main goals of the founders and major supporters of the EU are improving the opportunities for, the mobility of, and the security of transnational capital investment – hence, a strong interest in decreasing the influence of workers and social welfare constituencies.

REFERENCE:
Organization for Economic Cooperation and Development. 2004. OECD IN FIGURES: STATISTICS ON MEMBER COUNTRIES (2004 Edition). Paris: OECD.

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© Copyright 2006 by the author, Lawrence E. Rothstein.

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THE VOTING RIGHTS ACT: SECURING THE BALLOT

by Richard M. Valelly (ed). Washington, DC: CQ Press, 2005. 400pp. Cloth. $105.00. ISBN: 1-56802-989-6.

Reviewed by Joseph N. Patten, Department of Political Science, Monmouth University. Email: jpatten [at] monmouth.edu

pp.550-554

President Lyndon B. Johnson signed the Voting Rights Act into law on August 6, 1965. He referred to the Act as his “greatest accomplishment as President” during his final news conference, comparing it with Lincoln’s Emancipation Proclamation. The original purpose of the Act was to provide an enforcement mechanism to the 15th Amendment by securing for African Americans the most basic of all rights – the right to vote. The 15th Amendment, ratified in 1870, made it unlawful for any state to deny voting rights on the basis of race, marking the first time the U.S. Constitution conferred the right to vote upon any demographic group.

In THE VOTING RIGHTS ACT: SECURING THE BALLOT, we learn about this landmark piece of legislation from a number of critical perspectives, including the origins of the African American suffrage movement, the role of the Supreme Court, the formulation of the Act itself, and the transforming effect of the Act on American political life. Richard M. Valelly edits this groundbreaking volume written by political scientists, historians, and legal scholars.

The volume chronicles in vivid detail the extent to which African Americans flourished politically after ratification of the 15th Amendment. About 90 percent of all African Americans resided in the South during this period, and their political power was protected by federal troops dispatched there after the Civil War. Extending voting rights to freed slaves met with heavy resistance from white segregationists for a variety of reasons, not the least of which was their numerical minority status in five southern states.

African Americans were politically energized during Reconstruction and soon came to hold nearly one-half of the State House delegate seats in Mississippi, Louisiana, and South Carolina, and 16 African Americans were elected to the U.S. Congress. Xi Wang’s essay chronicles the origins of the segregationist backlash that was facilitated by a political arrangement crafted by Republicans and Democrats during the controversial 1876 presidential election. The leaders of the parties agreed to award 20 contested electoral votes from Florida, Louisiana and South Carolina to Rutherford B. Hayes in exchange for a Republican pledge to remove federal troops from the South, effectively ending Reconstruction. The post-Reconstruction period (1877-1901) is regarded by scholars as the “nadir,” or the “Dark Ages,” of African American political life, and it is here that the southern strategy to disenfranchise voters takes root (p.57). [*551]

Robert C. Lieberman’s essay, “Disenfranchisement and Its Impact on the Political System,” highlights how southern states effectively nullified the 15th Amendment by implementing disenfranchising measures, such as literacy tests, sometimes with “grandfather clauses,” exempting from the test those eligible to vote before Reconstruction, or “understanding clauses,” granting broad discretionary powers to segregationist registrars to enroll white illiterates “who could understand constitutional provisions read to them” (p.38). Every southern state adopted poll taxes, where payments were required months in advance in the hope that the few African Americans able to pay might misplace the tax receipt by Election Day. African Americans were excluded from “white primaries” with the blessing of the U.S. Supreme Court, who upheld the notion that political parties were private associations until the SMITH decision in 1944. It was also common for southern county officials to place registration offices and polling stations in Ku Klux Klan strongholds, where African Americans were routinely beaten and sometimes killed for attempting to exercise their right to vote, all in compliance with U.S. Senator Theodore Bilbo’s (D-MS) widely released challenge in his 1946 reelection bid to all “red blooded white men to use any means to keep the niggers away from the polls” (p.53).

These measures proved successful. In Louisiana, African American voter registration fell from its peak of 95.6 percent in 1896 to 1.1 percent in 1904. South Carolina, which had an African American majority in their lower House during Reconstruction, did not elect a single African American from 1896 until the 1970s.

Congress and the Executive Branch largely deferred to southern home rule, and the Supreme Court routinely sided with southern state governments on substantive challenges to literacy tests, poll taxes, white primaries and other disenfranchising measures into the mid-20th century. The political tide began to turn after World War II, however, when the more than one million African American soldiers sent to defeat Hitler’s racist ideology in Europe returned determined to challenge racism in their own hometowns (p.63). African Americans gained “social capital” by organizing church, fraternal, and educational organizations, such as the National Association for the Advancement of Colored People (NAACP) and challenged the status quo in both the courts and the streets. Leaders such as Atlanta’s Martin Luther King, Jr., and Mississippi’s Medgar Evars organized a Civil Rights movement across the region that brought northern volunteers and national attention to white supremacy in the South (p.70). It was in this climate that Congress enacted the groundbreaking Civil Rights Act of 1964, outlawing segregation in places of public accommodations, but it failed to address voter disenfranchisement.

The Civil Rights Act (1964) also served to accelerate the southern political realignment away from the Democratic Party and toward the Republican Party, a trend that began after President Truman integrated the American military. [*552] Lyndon Johnson faced fierce opposition to his Civil Rights agenda in the South, and the Democratic Party paid a high political price in the region after its adoption that lingers today. While Lyndon Johnson received 61 percent of the national vote against Barry Goldwater in the 1964 presidential race, he received only 12.9 percent of the vote in Mississippi, and was not even on the ballot in Alabama (p.115).

Because of the political fallout from the Civil Rights Act, many national Democrats were not eager to address voter disenfranchisement in the South. Events in Selma, Alabama, however, where Dr. King was imprisoned and where peaceful voting rights demonstrators were beaten by law enforcement officials on national television, forced President Johnson and other national leaders to intervene. Southern disenfranchisement efforts were still in full force in 1965. It is in this context that President Johnson signed the Voting Rights Act into law.

One of the most prominent features of the Voting Rights Act is found in Section 2, which prohibits all states from imposing literacy tests and poll taxes, and other voting prerequisites resulting in the disenfranchisement of voters on the basis of race. The Voting Rights Act is distinct from the Civil Rights Act in that it contains permanent and non-permanent features. The two most controversial non-permanent (i.e. requiring reauthorization) provisions are found in sections 4 and 5. Section 4 outlines the “triggering formula,” describing the conditions “that would bring a jurisdiction under the protection of the act” (p.96). This provision was controversial because it meant that other parts of the Act would only target states with a history of discriminatory practices, defined as those jurisdictions that had a voter turn-out rate of less than 50 percent and a “voting test” in place during the 1964 presidential election. The “covered jurisdictions” included the states of Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and certain counties in Arizona, Hawaii, Idaho, and North Carolina.

Section 5 of the Act prohibits all “covered jurisdictions” from implementing any electoral changes without first receiving permission from either the U.S. Attorney General’s Office or a D.C. District Court. This “preclearance” provision shifts the legal burden of proof away from protected groups and to the governmental entity proposing electoral reform. Sections 6 through 8 empower the Attorney General to dispatch election examiners to oversee elections in covered jurisdictions (p.95).

The Voting Rights Act has been either substantively amended and/or reauthorized in 1970, 1975, 1982, and 1992, and the non-permanent provisions are scheduled to expire once again on August 6, 2007. Congress is expected to reauthorize the Act, although a scheduled vote for June 21, 2006, was canceled after some House Republicans voiced opposition to the “preclearance” and “bilingual ballot” provisions. Colin D. Moore’s essay, “Extensions of the Voting Rights Act,” highlights how the Act has expanded over the years. In [*553] 1975, Rep. Barbara Jordan (D-TX) sponsored a bill that extended the provisions to language minorities, requiring local jurisdictions to “provide bilingual voting registration materials and ballots” if a particular language minority constituted more than five percent of the voting population and if that jurisdiction’s voter turnout was less than 50 percent in the 1972 presidential election, thereby extending coverage to Arizona, Texas, California, Florida, New York, and South Dakota (p.105).

The Act was temporarily weakened by the Supreme Court’s CITY OF MOBILE v. BOLDEN (1980) decision, where the court ruled that laws having the “effect” of disenfranchising protected groups are permissible as long as they are not “motivated by discriminatory purposes” (p.105). This was reversed two years later, however, when Rep. Peter Rodino (D-NJ) successfully inserted language into the Act that made it unlawful for covered jurisdictions to propose electoral changes that “resulted” in the disenfranchisement of protected groups regardless of the laws “intent,” thereby establishing the “result” standard as the Act’s guiding principle.

David A. Bositis’ chapter, “Impact of the ‘Core’ Voting Rights Act on Voting and Officeholding,” reveals how the Voting Rights Act has “fundamentally transformed” American politics. It is hard to imagine, for instance, that only 5.2 percent of African Americans were registered to vote in Mississippi in the early 1960s (p.113). The situation had changed dramatically by 1968 when a majority of African Americans were registered to vote in every southern state. Galvanized in part by Jesse Jackson’s presidential bid in 1984, these trends continued into the mid-1980s, when African American registration and turn-out rates came to equal the rates of southern whites (p.114). Pei-te Lien’s essay on the impact of the Voting Rights Act on language minorities points out, however, that the Act has not been so successful in reversing registration and voting trends with Latinos, Asian Americans, and Native Americans.

One of the most thought provoking articles is Mark Rush’s essay, “The Voting Rights Act and its Discontents,” where he explores the underlying tension existing in the modern voting rights movement. Should voting rights be viewed as a positive or a negative right? Should government take affirmative steps to enhance the political position of historically disenfranchised groups (i.e., positive right), or should government merely prohibit local jurisdictions from obstructing voter access (i.e., negative right). By the 1990s, voting rights issues had become more subtle, and the Supreme Court was asked to address the philosophical question inherent in racial gerrymandering, in such cases as SHAW v. RENO (1993), MILLER v. JOHNSON (1995), and EASLEY v. CROMARTIE (2001). If it is illegal to draw a legislative district line “at the expense of one political group, can we justify manipulating it for their benefit?” (p.147). Rush also highlights voting rights scholar Carol M. Swain’s supposition that the “reelection interests of minority incumbents might be antithetical” to both the representation rights of minority voters and the Democratic Party, arguing that each [*554] would have greater political power if minorities were dispersed more broadly throughout legislative districts, rather than concentrating their power in a few majority-minority created districts.

Valelly’s edited volume does a masterful job of taking the reader through the “nadir” of African American political life and into the struggle for voting rights and beyond. While some of the narratives on seminal Supreme Court cases and political realignment trends slightly overlap, readers benefit from processing these themes through the distinct perspectives found in the intellectual kaleidoscope of the ten essays. The major contribution of the volume is that it provides an intellectual foundation from which all discussions on modern voting rights can launch.

The volume also reminds us that remnants of efforts to disenfranchise protected groups might still be with us today. A Georgia voter identification law requiring voters to possess one of six pre-approved photo identifications was approved by the Chief of the Department of Justice’s Voting Rights section in 2006 after staff members recommended that it be blocked. There are currently 675,000 registered voters in Georgia, many of whom are African American, who do not possess a photo identification driver’s license. The new measure prohibits the past practice of accepting birth certificates, social security cards, or utility bills as one of 17 types of identification previously accepted at polling stations in Georgia. Voting rights advocates believe this law will dampen African American turn-out rates in the 2006 mid-term election.

Political science research has long established that political participation is highly unequal, resulting in inequities of influence. This well-written volume makes a powerful contribution to structural explanations as to how voting trends correlate with registration guidelines and rules governing access across states. It is a must read for American politics scholars and for anyone interested in learning more about one of the most successful pieces of legislation ever to be signed into American law.

CASE REFERENCES:
CITY OF MOBILE v. BOLDEN, 446 US 55 (1980).

EASLEY v. CROMARTIE, 532 US 234 (2001).

MILLER v. JOHNSON, 515 US 900 (1995).

SHAW v. RENO, 509 US 630 (1993).

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

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© Copyright 2006 by the author, Joseph N. Patten.

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FEDERALISM, SUBNATIONAL CONSTITUTIONS, AND MINORITY RIGHTS

by G. Alan Tarr, Robert F. Williams, and Josef Marko (eds). Westport: Praeger Publishers, 2004. 256pp. Cloth $89.95/£50.99. ISBN: 0-275-98023-5. Paper $24.95/£13.99. ISBN: 0-275-98024-3.

Reviewed by Jeffrey Polet, Department of Political Science, Hope College. Email: polet [at] hope.edu.

pp.546-549

For American readers, schooled as they are on the lessons of Jim Crow, the basic claim of G. Alan Tarr and his co-editors, Robert F. Williams, and Josef Marko, might seem rather audacious: that federalism, by enhancing authority to subnational units of government, provides a greater degree of protection for minority rights than a unitary national system of government. The American experience certainly seems to augur against such a claim, and that specific issue is taken up by Tarr in his chapter on American state constitutions and minority rights. Tarr effectively demonstrates that, although states have increasingly expanded minority rights beyond those provided for by the Federal constitution, the Constitution has nonetheless remained central in protecting minorities against statewide popularly-inspired initiatives. In short, even in the American context the record of federalism in protecting the rights of minorities is, at best, mixed.

The picture becomes even more complicated when applied internationally. The editors have divided the book into two main parts, with the second part separated into three subsections. In Part I, the editors lay down the theoretical framework to explore the relationship between federalist structures and minority rights. One central problem in this regard is the process by which federal arrangements are structured. In the American case federalism evolved along two basic lines: first, as a gradual shifting of authority from the states to the federal government. That is to say, federalism was a bottom-up development whereby the formation (and subsequent consolidation) of the power of a centralized national government was the final stage of a protracted process. Secondly, American federalism had two constituent elements: demography and geography. In this too the American case proves to be somewhat exceptional (as can be seen in comparison with the case studies provided in the second part of the book). In America, demography and geography did not neatly overlap, so that identification of minorities as groups within particular regions proved difficult at best. Indeed, part of Madison’s famous argument in Federalist #10 is that an extended sphere of government will sufficiently muddle things so as to make oppression of minorities logistically impracticable. Then too, in America, demographic distinctions did not fall along linguistic lines. Clearly one of the determinative elements of the American experiment in democracy is the fact that it is uniformly English-speaking. Given the connection between language and culture, such a happenstance could not help but be propitious with regard to the prospects of [*547] the nascent republic. Here, however, the authors effectively demonstrate the difficulties with asseverating the normative character of the American experience. Federalism may be a bottom-up formation as in America, but it is more likely to be a top-down creation, and in that instance the difficulties of maintaining legitimacy increase significantly. The situation is further complicated by the fact that in top-down situations group identity tends to be more pronounced, making identity as a citizen more uncertain and group conflict more intense. In those situations, majorities have less at stake in terms of oppressing minorities, and thus are far more likely to engage in such acts. The fracturing of group identity, both presupposed and advocated by Madison, was geared toward the end of making the formation of majorities both unlikely and unstable. Across the globe, however, such groupings are more the rule than the exception.

Given the predominance of the top-down model, important questions are raised concerning the space left to subnational constitutions to provide additional rights to minority groups. The editors identify four factors that contribute to leaving this space: 1) the era in which the new system was adopted; 2) the ease with which the constitutions can be amended; 3) regional differences; and 4) how well subnational constitutions can copy or borrow from other component units. These considerations provide the framework for the case studies that follow. A second chapter by Kristin Henrard establishes many of the basic legal principles involved in resolving the possible conflicts between the demands of democracy in its majoritarian dimensions, the need to provide a stable and well-ordered state (with the concomitant imperative for minimal social harmony), and the particular claims of constituent groups. With regard to the latter, Henrard argues that a properly constituted regime will provide substantive equality for minority groups, a requisite that goes beyond simple non-discrimination principles. There is little discussion of the downside of such a claim, and one wonders whether in this regard Henrard has set the bar a little too high. In a final chapter establishing the analytical framework, Nicole Töpperwien investigates the significance of participatory rights for the sustenance of federalist regimes. The paradox here is that, although minority groups often seek to maintain their unique identity and to gain appropriate accommodations (if not outright advantages) to themselves, they also need to see themselves as one of the constituent elements of the state. To this end, they tend not to demand rights as individuals (a calculation that would strengthen the hand of the state by creating a uniform identity as citizen), but to demand rights as groups. In Töpperwien’s estimation, this is the preferred way to handle the challenges of multiculturalism, because, by providing a participatory connection to the state, it still allows for a high degree of legitimacy. In short, political oppression is stayed, not through recognition of universal equality along the lines of something like the 14th Amendment, but rather through the mutual recognition of universal differences. “The value of diversity,” she claims, “can turn into a fundamental principle of the state” (p.49). But I [*548] question whether this idea of diversity is sufficiently weighty to provide for the kind of legitimacy and social cohesion that national existence ultimately requires. One might ask, for example, what sorts of diversity ought to be valued and recognized as contributing to the strength of the political community. And then we might ask further what criteria we might employ to determine valuable diversity. While Töpperwien raises the question, the answer is wanting, except to say that whatever the criteria are, they have to be acceptable to all the parties involved. But surely this is a practical tautology that provides little guidance for actual practice. A reasonable criterion Töpperwien raises subsequently would be conflict-prevention; but even here cultural differences could be insuperable (a criticism that is suggested in part by Töpperwien’s misconstrual of the relationship between culture and politics in the American context). In short, something seems to be missing from her analysis.

The second part of the book assesses specific instances of the relationship between federalism and minority protection, dividing systems into “mature” structures, systems in the process of being transformed, and those that are “multinational” in scope. Comparativists will find much useful information in these chapters, and the editors have done an admirable job insuring their coherence and overall quality. One sense the reader develops is a feeling for the remarkable adaptive qualities of federalist arrangements – both in terms of federalism’s ability (if such agency can be ascribed) to adapt to the cultural and political particularities of different states, and to its ability to handle different problems. In Germany, federalism’s significance has little to do with its ability to protect minority rights, for Germany is a well-integrated society with few minority issues. But it has been important, and will continue to be, with regards to the massive immigration problem Germany experiences. I was particularly impressed with Francesco Palermo’s review of federalism in Italy. There, minority rights attach to territory and not to persons, with the result of strong asymmetries in the regional system. The regional arrangement, moreover, tracks different language groups with the effect that only linguistic minorities are considered to be minorities, and maximum protection is offered only within the particular region (a similar problem exists in Belgium, as demonstrated in Wouter Pas’ excellent contribution). This inevitably leads to some form of balkanization, and indeed Palermo characterizes the assimilation of linguistic groups into the Italian nation as a “risk.” This slackening of national identity is accompanied by the decline of the state (indeed, skepticism with regard to the modern nation-state is a veritable leitmotiv throughout the book) as both a source of rights and a legitimate exerciser of power. If the nation-state itself attenuates, the whole idea of “minorities” becomes increasingly indeterminate as well.

In Jens Woelk’s chapter on Bosnia and Herzegovina, the problem of federalism and minority rights is presented in extremis. First of all, it is the starkest example of a top-down model of federalism available, imposed on the [*549] region by an international coalition and ruled by international tribunals (most notably the High Representative of the International Community). Secondly, the problems of multi-ethnicity are especially pronounced (Balkanized both literally and figuratively). Third, the basic problems to be addressed are not problems of democracy per se with regard to minority rights, but essentials of the rule of law itself, in both its coercive and legitimating functions. On this score, basic principles of governance are being adjusted on the fly. If one views federalism as primarily a means of dividing power, then the Bosnian case stands as an example of the difficulty in finding the right balance of power required to keep groups apart and hold them together.

This brings me to my main criticism of the book as a whole. Federalism is a way of “splitting the atom of sovereignty” in a way that groups are functionally handcuffed in their ability to “vex and oppress” one another. Hobbes identified trust as the basic problem of liberal politics, and the restoration of a minimum of trust as the sine qua non of any well-ordered regime. Federalism may be thought of as a mechanism to enflame distrust, rather than one that can create, or at least operate on the basis of, a minimum order of trust. Indeed, as Madison notes in Federalist #10, in an extended republic where persons have little immediate knowledge of one another, “communication is always checked by distrust, in proportion to the number whose concurrence is necessary.” For that reason, increased regionalism will perchance circumvent those problems of distrust as far as regional politics go. But if rights are connected to regionalism (and/or ethnicity), then the problems of both trust and minority protections will become even more pronounced. The Bosnian example is sufficient proof of this, and ought to create skepticism concerning the prospects for democracy in Iraq, which increasingly appears as if it will be created along regional lines or not at all. Even if the former, the problems of trust are so pronounced as to make the prospects grim indeed. The authors of the text and various essays do not raise this issue, and for this reason I suspect the mechanisms of federalism and the valuing of diversity are, in the end, inadequate in themselves to the task the editors establish: protection of minority rights.

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© Copyright 2006 by the author, Jeffrey Polet.

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THE ORIGINS OF LAW AND ECONOMICS: ESSAYS BY THE FOUNDING FATHERS

by Francesco Parisi & Charles Kershaw Rowley (eds). Cheltenham, UK: Edward Elgar, 2005. 544pp. Cloth $165.00/£95.00. ISBN: 1840649631.

Reviewed by Aristides N. Hatzis, Department of Philosophy & History of Science, University of Athens. Email: ahatzis [at] phs.uoa.gr

pp.542-545

It is widely accepted that Law and Economics (L&E) is the most successful paradigm in legal theory since legal positivism. Today there is an abundance of books in L&E and its periphery: more than two dozen textbooks, and countless papers and monographs have been published on almost every imaginable topic of the legal-economic nexus. A virtual army of legal scholars work unceasingly with the tools of economics in areas where traditional lawyers have little to offer. Despite the success that sheer numbers illustrate, there is also an apparent gap in scholarship: a gap so major that it seems strange. The discussion on methodology, history and philosophy of L&E is almost non-existent inside the L&E camp.

The work on these theoretical issues is also immense, but it comes mostly from outsiders with a critical disposition. Most critics are law professors suspicious of L&E, heterodox economists, and philosophers. Their body of work is impressive, although one-dimensional. But this is not their fault. The adherents to L&E generally choose not to answer! With few exceptions (Richard Posner being the most notable one), the majority of L&E scholars do not bother themselves with theoretical issues.

This is so for many reasons: the tremendous success of L&E, the dominance of neoclassical economics which is reinforced by their eclecticism (we will get back to this), the uncharted legal territory, the many obstacles in finding publishing outlets for theoretical articles, the various mundane rewards for working on more practical problems, and so on. It is characteristic that the reaction to Kaplow’s and Shavell’s FAIRNESS VERSUS WELFARE (which was a major theoretical contribution) was impressively minimal—I suppose because most L&E scholars implicitly accepted it.

This is not necessarily a problem. As I mentioned, the eclecticism of the neoclassical mainstream, for the past five to six decades, has managed to incorporate almost all valuable insights from neighboring schools (the Austrian school, neo-institutionalism, behavioral economics, and so on). This tendency is widespread in L&E as well. However this is not enough. A theoretical discussion on the major epistemological premises is still missing.

One of the reasons I found this book particularly useful is that it reminds me that the situation was different in the beginning. This book, by two major scholars, Francesco Parisi and Charles Rowley, is essentially an intellectual history of the L&E school. Parisi is a top young scholar in the field, and Rowley is a leader of the public choice school [*543] working in the margins between the two fields. They are both prolific, and they are among the few who are mostly interested in theoretical issues and bring strong backgrounds in legal theory, political and moral philosophy.

This book is one of the many valuable collections Edward Elgar has offered in many fields of economics, most of them being very handy, especially when they gather important contributions otherwise scattered across various reviews and journals, sometimes in obscure volumes. This collection does not include journal reprints, but it allows authors to include previously unpublished or not widely circulated material. Parisi and Rowley have also contributed two introductory essays.

The choice of the 16 essayists is obvious, including the four founders, Gary Becker, Ronald Coase, Richard Posner and Guido Calabresi. There are also essays by all the major figures: Robert Cooter, Harold Demsetz, Richard Epstein, William Landes, Henry Manne, George Priest, Paul Rubin, Steven Shavell and Michael Trebilcock. In addition, there are chapters by three major economists whose contributions are at the margins of L&E: James Buchanan, Gordon Tullock (public choice) and Oliver Williamson (neo-institutionalism).

I do not have any disagreement with the choices. However I have some minor dissents. The alphabetical order of the essays might prevent some grudges, but it is not practical or even fair. The 16 founding fathers are not all of the same importance to L&E. I would prefer a bolder categorization, or (even better) a thematic presentation (e.g., intellectual history / methodology of L&E). The essays are presented in a way that is most useful to a reader who already knows the subject well, as a companion to someone who is already familiar with L&E – not an introduction to the L&E approach.

I believe that this was a conscious choice of the editors. I suspect the purpose behind the selection of the papers was not only to gather all the available essays of L&E’s intellectual history but to encourage a more theoretical approach to younger lawyer-economists. The essays by Becker, Buchanan, Calabresi, Cooter, Shavell, and Williamson prove this point. This produces heterogeneity: one can find different types of essays, such as autobiographical, methodological, philosophical, and reprints of major works. This has rather to do with the fact that the book is based on a Distinguished Lecture Series that lasted four years. The essays presented in these series are mostly published here. Some authors present their own recollections (see e.g. Manne’s essay on his pivotal role as “apostle of the message;” Epstein’s fascinating essay on his intellectual transformation; Landes’ history – who was in many respects the leader of the Chicago school), and experiences (Trebilcock’s impressive presentation of the actual work done in Canada), and most of the theoretical essays are quite original. Unfortunately, it seems that some of the founding fathers were not available, so the editors selected one of their previously published essays. Their choice was not always optimal, as I discuss below. [*544]

As intellectual history, the book is very strong. In addition to a recounting of the early years in a discussion of the major figures of the Chicago school (Kitch) and the Rowley essay, several autobiographical essays were written especially for this volume (Epstein, Manne, and Trebilcock) or reprinted here conveniently (Landes). This makes the book a valuable resource for those who work in the area. The only major essay missing is Coase’s “Law and Economics at Chicago” (1993).

There are also a number of methodological/philosophical essays written especially for the volume:
•James Buchanan disputes the epistemological feasibility of the normative Coase theorem.
•Ronald Coase summarizes his approach, also expressing some doubts on the ambition of the new L&E to extend the analysis beyond the market.
•Robert Cooter offers a new perspective on the old issue of the clash between justice and efficiency.
•George Priest (in a work originally written in 1982) makes an interesting comparison of Posner’s and Calabresi’s approaches to L&E and separates them from the Director-Coase scheme. The essay is interesting, but I will not agree that its predictions were confirmed.

Richard Posner’s essay is useful in two ways: it is both intellectual history and a methodological essay. According to Posner, L&E is not an isolated phenomenon but part of a rational choice approach to human behavior, culminating with the work of Gary Becker.

The papers by Becker, Coase, Buchanan, Posner, and Priest would nicely make up a section on the methodological foundations of L&E if the editors had organized thematically.

The essays by Demsetz, Rubin and Tullock do not fit well in the overall structure. On the one hand, I would prefer, as I already argued, autobiographical or theoretical chapters rather than reprinting their representative work. On the other hand, the choice of the Tullock paper seems to be influenced by the Rubin chapter. Shavell’s paper is a recent and interesting one, but it is also not an obvious choice for this collection. I would have included instead one of the recent papers he wrote with Kaplow on fairness and efficiency.

Conversely, Oliver Williamson’s paper (which is also a reprint) is quite suitable for this collection – and it nicely complements the original methodological essays.

The two introductory essays reinforce the need for such categorization. Rowley’s essay is an insightful intellectual history of L&E, tracing its origins to David Hume, Adam Ferguson and Adam Smith. He discusses the contributions in the prehistory of L&E, from Jeremy Bentham to legal realism and old-institutionalism. His approach is quite original especially in making connections and placing L&E in a broad movement of rule utilitarianism. I believe that this essay should constitute [*545] mandatory reading for young L&E scholars who wish to fully understand exactly what they are doing.

Francesco Parisi’s essay is a systematic presentation of the methodological issues in L&E, or rather a reconstruction of a methodological debate that never took place! In his bibliography most articles and books are written by economists rather than L&E scholars, since (as I argued in the beginning of this review) the discussion on methodology is minimal in comparison with an impressive output. Nevertheless, Parisi manages to demonstrate the importance of methodological issues, to organize the few contributions (mainly around Posner’s normative theories), and to locate them within the broader context of economic methodology and political philosophy. He sets the record straight in several instances, discrediting false beliefs about the normative L&E. His piece is most fitting with Rowley’s essay.

On the whole, this book is a valuable contribution to the intellectual history and the methodology of L&E. It gathers some of the most important essays on these questions, and it is a must-read for L&E scholars, legal theorists and economists with broader interests. Also, it comes at the right time—i.e. when L&E (after conquering the US) is rapidly spreading across Europe and beyond.

Despite some grim predictions (some of them repeated in this book) Law and Economics has been not only successful and enduring, but also all-encompassing. Its influence is so permeating that it is almost imperialistic. Legal theory and legal science in general will never be the same. Its dominance (a result of the most successful paradigm change in 20th century social science) is sometimes treated as a decline. Apparently it is not. Who would have thought 25 years ago that FAIRNESS VERSUS WELFARE would have come out of Harvard?

REFERENCES:
Coase, Ronald H. 1993. “Law and Economics at Chicago.” 36 JOURNAL OF LAW & ECONOMICS 239-254.

Kaplow, Louis, and Steven Shavell. 2002. FAIRNESS VERSUS WELFARE. Cambridge, MA: Harvard University Press.

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© Copyright 2006 by the author, Aristides N. Hatzis.

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LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST, 1670-1940

by Louis A. Knafla and Jonathan Swainger, (eds). Vancouver: UBC Press, 2005. 360pp. Hardcover. $85.00. ISBN: 0-7748-1166-8. Paper. $29.95. ISBN: 0-7748-1167-6.

Reviewed by Michael Boudreau, Department of Criminology & Criminal Justice, St. Thomas University. Email: mboudreau [at] stu.ca.

pp.539-541

One of the strengths of legal history is its inter-disciplinary nature. By drawing together multiple theoretical and interpretative perspectives, legal history has revealed the social meaning of the rule of law and the impact that the law has had upon society. The contributors to LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST – historians, legal scholars, practicing lawyers, and sociologists – reflect the inter-disciplinary scope of legal history. Moreover, this volume is part of the Law and Society Series at UBC Press. This series, edited by W. Wesley Pue, is a prime example of the excellent scholarly work that is currently being conducted on the critical issues surrounding the interaction between law and society in Canada. The eleven essays in LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST, which originated from a 1997 conference at the University of Calgary, underscore the complexities of implementing the rule of law and administering “justice” in the sparsely settled and geographically vast area of Canada’s Prairie region. As Louis Knafla notes in the introductory chapter, the Prairies represent the “least developed” region in Canadian legal history (p.2). This volume makes a notable contribution to correcting this imbalance. As well as being a valuable source for Canadian legal and social historians, LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST will prove to be beneficial to scholars outside of Canada who wish to gain a better understanding of some of this country’s key legal foundations.

The articles are divided into two parts: “First Nations and First Peoples” and “Adaptations to Modernity.” Some of the major themes include the role of discretion in dealing with Aboriginal peoples and immigrants, a commitment to English common law in litigating legal actions, fur-trade post commanders, magistrates, and judges who often acted as autonomous legal authorities, and the influence of local social, cultural, and economic factors upon the law. The need to secure stable and profitable relations with First Nations peoples often dictated the nature of legal actions and decisions in the Prairies. One important overarching theme in this book is legal culture, and although implicitly stated, this theme links all of the essays together. As much as the region itself was shaped by both internal and external political, social, and economic conditions, so too were the laws and legal precedents that evolved over the course of the 1670 to 1940 period in Canada’s western Prairies. And it is this focus on legal culture that makes LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST such an important book in explaining the origins of Canada’s current legal milieu. [*540]

The essays in Part One deal exclusively with legal and social relations between the Hudson’s Bay Company (HBC) and the Canadian state and the culturally diverse Aboriginal peoples of the Prairies. This relationship was marked by co-operation, tension, and at times hostility. The rule of law was meant to subdue and assimilate First Nations peoples. But local realities, notably the lack of resources to enforce the law and a desire on the part of most Natives to have the HBC and the state recognize and respect their laws and legal traditions, usually meant that established legal theories and practices were compromised and revised by HBC and Canadian authorities. In this sense, these essays superbly underscore the crucial difference between the law as it exists in theory and the law as it must exist in order to meet the challenges of everyday experiences. Indeed, as the law on the Prairies adapted to contemporary exigencies, a legal culture emerged – a culture that usually translated into racism towards Canada’s first peoples.

The articles by Hamar Foster, Sidney L. Harring, Russell C. Smandych, and Paul C. Nigol breathe new intellectual life into the issue of the extent to which Britain, and later the Canadian government, respected Aboriginal law and imposed Euro-Canadian law upon First Nations peoples. As Harring astutely notes, the treaty process into which the federal government entered with Aboriginal peoples was not intended to be a means of assimilation, but rather the best method to secure Natives’ lands as cheaply as possible. The Indian Act was, however, an example of “benevolent despotism” (p.115), a deliberate attempt to overcome Aboriginal resistance to European settlement and transform, if not destroy, their culture. Similarly, in order to implement the provisions of the Indian Act, the state employed the Royal North West Mounted Police and Indian Agents, both of whom formed a central part of the state’s “machinery of repression” (p.119) towards Aboriginal peoples. These provisions, as the authors suggest, leave little doubt concerning the desire by the British and Canadian governments to impose their law and legal customs upon the indigenous peoples of the Prairies.

Even when colonial officials did include First Nations peoples in legal discussions and proceedings, they did not receive equality before the law. As Smandych recounts, through a case study of the trial and execution of a Saulteaux for the murder of a Sioux, the real goal of the criminal justice system was not necessarily to dispense justice, but to prevent Aboriginal peoples from settling their disputes in the way that they had done prior to contact with Euro-Canadians. In other words, “British justice” had to be the dominant form of justice on the Prairies. One key weakness in these articles is the absence of an Aboriginal voice and resistance. While not as voluminous within the historical record as other voices, First Nations peoples did, through words and actions, make their views known to legal authorities. By not integrating more of these views and actions into their analyses, these articles are incomplete. Nevertheless, Foster, Harring, Smandych, and Nigol do underline the on-going negotiations that occurred [*541] between the Aboriginal and Euro-Canadian nations and legal systems and the social, cultural, and legal changes that resulted.

Part Two of LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST attempts to gauge how the law adapted to the profound changes that modernity brought to the Prairie region. But the essays in this section, and the general introduction to the volume, do not adequately define or explain modernity and how it unfolded across the Prairies. As a result of this important oversight, the contributions by Greg Marquis, Roderick G. Martin, Zhiqiu Lin/Augustine Brannigan, Tristan M. Goodman, Janice Erion, and John McLaren, lack an important theoretical framework and critical context. However, all of these authors demonstrate how politics, whether provincial or federal, molded the contours of law and society. For instance, Marquis and Lin/Brannigan discuss the political pressures, and interference faced by the North West Mounted Police and the provincial police forces in Alberta and Saskatchewan, respectively, when trying to enforce the law throughout the Prairie frontier. In addition, Goodman and Erion chronicle the rise of state regulation of water and power services in the first half of the twentieth century. And McLaren offers an incisive overview of the different approaches by the governments of British Columbia and Saskatchewan to integrate Sons of Freedom Doukhobors into their communities. It is this attention to the political machinations behind the law that makes these readings quite fascinating.

What LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST is missing is a more comprehensive comparative analysis. Granted, many of the articles provide intra-regional and international links between legal theory and local practices. But a broader comparison between the Prairies and the rest of Canada, especially British Columbia, would have further illuminated the key role that the Prairie West played in forging Canada’s legal traditions and culture. As well, legal history, and this volume in particular, is well positioned to shed light upon some of the current controversies and debates surrounding the place and importance of the rule of law in North American society. In this vein, the subsequent volumes that should flow from the provocative ideas and topics contained in LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST, must draw more direct links from Canada’s legal past to the country’s present, and ever-changing, legal regime.

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© Copyright 2006 by the author, Michael Boudreau.

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ESSAYS IN THE HISTORY OF CANADIAN LAW, VOL.IX, TWO ISLANDS: NEWFOUNDLAND AND PRINCE EDWARD ISLAND

by Christopher English (ed.). Toronto: University of Toronto Press, 2005. 320pp. Cloth (CDN & US)$70.00/£42.00. ISBN: 0802090435.

Reviewed by Peter H. Russell, Department of Political Science, University of Toronto. Email: Phruss [at] aol.com

pp.536-538

The focus of this ninth volume in the Osgoode Society’s splendid series of essays on Canadian legal history is Canada’s two island provinces, Newfoundland and Prince Edward Island. It contains much that is of interest about the vagaries of British colonialism and the roots of judicial activism.

The volume’s nine chapters on Newfoundland provide fascinating accounts of what editor Christopher English appropriately refers to as Britain’s “retarded colonialism.” From the early 1600s to the late 1700s, Britain was in denial that it had a colony in Newfoundland. The official line in London was that Newfoundland was a seasonal fishing station, not a colony. And even after Newfoundland, along with the coastal communities of Labrador, gained formal colonial status, the justice system reflected the Colonial Office’s predilection for government on the cheap.

The four chapters on Prince Edward Island give us a close-up look at the legal hassles resulting from Britain’s decision, one and one-half centuries after the beginning of English settlement in Newfoundland, to settle that island with tenants of English gentry who acquired ownership of island lots in a 1767 lottery. Here we get a glimpse of an unpropertied populace of tenant farmers struggling to establish the legal foundation for a new colonial society, while a motley crew of landowners’ agents and political nabobs jousted in the courts.

The book informs us of just how rough justice could be in the early days of Britain’s North American colonies. Several contributions, including Christopher English’s fine first chapter, tell us about the major role played by naval officers in administering justice in Newfoundland’s early days. In Jerry Bannister’s chapter we learn about the remarkable role surgeons played, not only as leading witnesses in homicide cases but often as magistrates – because in the tiny fishing outposts of those days, they were available, willing and regarded as “learned.” They were also difficult to convince that the deaths of badly battered women were caused by their husband’s or employer’s beatings. Nina Jane Goudie’s essay shows us that when the administration of justice became more formal in the nineteenth century, and Supreme Court judges on circuit replaced amateur local surrogates, the quality of justice experienced by residents of Newfoundland’s northern communities actually declined.

Rough as colonial justice was, it could also be progressive. This was [*537] particularly the case with respect to the rights of women. Based on an examination of all cases, civil and criminal, occurring in the courts of Newfoundland’s Placentia District between 1757 and 1823, Krista Simon shows that women were active participants in all kinds of litigation. This meant that married women exercised legal rights to own property and defend legal actions that at the time were denied their counterparts in England. Women’s use of the courts to defend and advance their interests continued into the modern period as we see in Laura Brown’s account of the legal treatment of women in the years immediately preceding Newfoundland’s joining Canada in 1949. It was not a matter of women benefiting from progressive judges but of taking their husbands to court for support payments so that they could feed their children.

If colonial justice was rough, it was also vigorous and highly political. Judges were major law-makers in these outposts of British civilization. Most of their activism was exercised in adapting English law to local circumstances. In a wonderful chapter by Bruce Kercher and Jodie Young, we meet a heroic example of such judging in Francis Forbes. Forbes, over a twenty-year period, from 1817 to 1837, served successively as Chief Justice of Newfoundland and Chief Justice of New South Wales. He justified his activism with the maxim that “of all evils upon society, I know of none more to be deprecated, than to be governed by unsuitable laws.” In dealing with land disputes in a colony lacking a system of land titles he recognized “possession quietly obtained.” This simple tenure, Forbes wrote, “is best adapted to an instant settlement, and appears to have grown out of those common exigencies which are the best interpreters of positive laws, and in their absence, become laws themselves.” Through Trudi Johnson’s chapter on property inheritance we can appreciate the economic security that the treatment of land issues by Forbes and other early colonial judges brought to Newfoundland and Labrador. Michelle Stairs’ chapter on family inheritance law in colonial Prince Edward Island shows how that colony too benefited from judges who were willing to respect wills that departed from the gender and class prejudices of English common law.

Stairs’ chapter brings out the benign side of judicial creativity in colonial Prince Edward Island. J.M. Bumsted’s overview of the judicial process in PEI’s early days, and David Butcher’s account of the nearly fifty years of litigation involved in the case of BOWLEY v. CAMBRIDGE show the pathological side of the interweaving of political and judicial life in PEI’s formative years. In the small island community where everyone knew everyone else, litigation was truly politics by other means. Political rivals fought for wealth and power in the courts presided over by judges with close ties to the litigants. In this environment judicial impartiality and independence were scarcely even shibboleths. No wonder in BOWLEY v. CAMBRIDGE, the litigants resorted four times to the Privy Council in London. Newfoundland has also seen its share of political law suits. Christopher English’s concluding chapter recounts [*538] the 1947 CASHIN libel trial in which two of the Newfoundland Supreme Court’s three judges went before their brother judge to sue a political critic for libel. Fortunately the jury failed to reach a verdict.

This collection of historical essays should disabuse political scientists of any idea that the judicialization of politics and the politicalization of the judiciary are strictly contemporary phenomena. Of course, in the colonial context where law-making by local legislatures was pristine and not particularly democratic, judicial activism took on a very different hue. Even so, it is important to understand that judicial power has been an enduring feature in political societies founded on the English tradition of governance. This book helps us appreciate that this power can be as much a force for good as for ill.

Besides giving us many insights into the law and justice system of Canada’s island provinces, the volume provides useful accounts of their legal historiography – Christopher English writing on Newfoundland’s and J.M. Bumsted on Prince Edward Island’s. Newfoundland and Labrador and Prince Edward Island may be Canada’s only two provinces without a law school, but this collection of essays by scholars, young and old, from a variety of disciplines, show that these provinces do not lack a talented legal academy.

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© Copyright 2006 by the author, Peter H. Russell.

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BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE

by Alasdair Roberts. New York: Cambridge University Press, 2006. 334pp. Cloth $30.00 £20.00. ISBN: 0521858704. eBook. $24.00. ISBN: 0511134177.

Reviewed by Daniel Hoffman, Johnson C. Smith University. E-mail: DHOFFMAN [at] JCSU.edu.

pp.533-535

This outstanding study of governmental secrecy has several conspicuous virtues. First, it is comparative in scope. Second, it pays careful attention to both the legal details of policy and the political realities of implementation. Third, the analysis is thorough and balanced, acknowledging the costs and benefit