THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11

by John C. Yoo. Chicago: University of Chicago Press, 2005. 378pp. Cloth $29.00. ISBN: 0-226-96031-5.

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

pp.102-105

To read THE POWERS OF WAR AND PEACE is to read the ideological latticework upon which the Bush Administration’s grasp for presidential power is constructed. As Deputy Assistant Attorney General in the Office of Legal Council, it was John Yoo’s September 25, 2001, Memorandum that articulated the legal arguments supporting the Bush Administration’s claims that it had inherent authority to use force against terrorists in Afghanistan. The arguments in this Memorandum, however, had even broader influence as it was the first of four legal opinions drafted to defend presidential power.

In addition to the September 25, 2001, Yoo Memorandum describing presidential war making powers, there is also a January 22, 2002, Office of Legal Council Memorandum addressing the treatment of al Qaeda and Taliban detainees, an August 1, 2002, Office of Legal Council discussion reviewing the classification and treatment of al-Qaeda held outside the United States, and a January 19, 2006, Department of Justice Memorandum supporting Bush’s decision to order the warrantless wiretapping of telephone conversations by the National Security Agency. All four Memoranda rely upon a similar logic as first articulated by Yoo in the September 25, 2001, opinion. It is this Memorandum that forms the precis of THE POWERS OF WAR AND PEACE.

The Yoo Memorandum argues that the president has extensive inherent authority to use force against terrorists. To substantiate this claim, Yoo relies upon the structure of the Constitution, judicial and executive construction of the Constitution, recent practice and tradition, and finally congressional enactments authorizing use of force. First, in terms of the structure of the Constitution, Yoo draws heavily upon the Founders’ constitutional intent, especially as glossed by Alexander Hamilton in the Federalist Papers.

For Yoo, the text of the Constitution, vests “full control” of military powers in the President to direct military operations, even absent congressional declarations of war. The basis for this claim rests upon a specific view of the presidency, again attributed to Hamilton, which asserts that the constitutional text creates a unified executive power or presidency. It is this unified conception of the presidency, along with the conveyance of executive power in the president, and an historical viewing of war powers and foreign policy activity as an executive function, that gives this office the exclusive power that it has in national security and defense issues. [*103]

Second, judicial and executive construction also endorses a strong view of presidential power in national security issues. In terms of executive construction, Part II of the Yoo Memorandum outlines numerous occasions where Attorney General or Justice Department opinions have supported presidential supremacy, if not exclusivity, in this policy area. For example, Yoo cites opinions of Attorneys General William Barr, Frank Murphy, and Thomas Gregory as arguing the president had inherent constitutional authority to commit troops overseas, or to take military action without congressional approval.

Third, historical practice and tradition also support presidential exclusivity in national security matters. Yoo cites what he claims are at least 125 times in American history where troops have been committed overseas by the president without congressional approval. Finally, Yoo points both to the War Powers Resolution and a September 18, 2001, congressional resolution authorizing the president “to use all necessary and appropriate force” against terrorists as giving Bush extensive power to maintain national security. Invoking Justice Jackson’s famous concurrence in YOUNGSTOWN SHEET & TUBE CO. that presidential power in foreign affairs is at its maximum when given legislative support by Congress, these two acts of Congress clearly endorse the notion that the president has broad if not exclusive and unlimited power to act in foreign affairs and national security matters.

How do the arguments of THE POWERS OF WAR AND PEACE compare to those of the Memorandum? There are subtle differences, even if they reach the same overall conclusions about presidential power. First, Yoo remains consistent in arguing that the Constitution, history, and practice all endorse preeminence of presidential power in foreign affairs and national security issues, leaving Congress only the powers of the purse and de-authorizing the military if it wishes to check the executive branch. The book is also clearer in stating that the judiciary should have no role in foreign affairs, viewing such issues as political questions. However, some of the arguments endorsing presidential power are expounded upon and changed.

For one, while the Memorandum stressed the intent of the framers in exclusively conveying foreign policy power upon the president, the book shifts the argument. It looks not to what the original intent of the framers was but to the original understanding of ratifiers and those who read the Constitution. Specifically, in the first four chapters, Yoo draws heavily upon Blackstone and British experiences and writings to support the claim that the ratifiers of the Constitution—including the members of the various state legislators as well as the Federalists and Anti-Federalists—all understood that foreign policy authority was exclusively [*104] an executive function. He also argues that when war making and foreign policy power shifted to Congress under the Article of Confederation, this was not a diversion of these functions to the legislative branch because this body was essentially an executive body. In addition, Yoo relies upon colonial and post-independence state constitutions to support his contention that foreign affairs are exclusively executive.

What we are left with under the Constitution of 1787 is a document that was understood as vesting plenary power in the president to act in foreign affairs and which did not make his ability to wage war contingent upon formal declarations of Congress. It is also a Constitution, for Yoo, that does not establish a fixed process for foreign policy decision making, but leaves it open to the “contemporary demands of the international system at the time and the relative position of the different branches” ( p.8). Given the somewhat open texture here, this sets the stage for Yoo to argue that the war on terrorism is a new type of conflict that demands more rapid response than in the past. In terms of what this means for the presidency, it includes vesting in him sole authority to make, interpret, and suspend treaties, including the Convention Against Torture and the Geneva Convention Relative to the Treatment of Prisoners of War, and to deploy troops.

How does one assess this book? There is no question that it offers a wooden theory of the presidency that emphasizes a strict separation of powers model of government. It is a model that even criticizes New Deal jurisprudence for improperly encroaching upon presidential power. The book concludes that the War Powers Act is unconstitutional for the same reason. But more troubling are several of Yoo’s assumptions. For one, in numerous places Yoo draws questionable conclusions based upon silence. For example, he asserts: “If we think of the allocation of war powers among the British and colonial governments as the background on which state constitutions were drawn, state silence suggests an acceptance of the British approach” (p.62). Inferring from silence is always a precarious move, and too much of the reasoning of the book does that.

Another problem is the effort to freeze and unfreeze the meaning of the Constitutional text at the same time. Yoo moves from questionable discussions of how Hamilton viewed the Constitution to how ratifiers viewed it, to then arguing that he will not rely as much on subsequent case law (which does not consistently support him) to show how foreign policy power must be vested in plenary fashion in the president while decision making remains open to contemporary demands. Is the Constitution fixed or open, and if open, why does it seem to consistently favor the presidency over Congress? Finally, no thought is given either to how American conceptions of constitutionalism differed from British views by 1787, or how the Constitution of 1787 and it augmentation of power was rebalanced by the subsequent adoption of the Bill of Rights in 1791 and future amendments.

Overall, THE POWERS OF WAR AND PEACE is a provocative, flawed, but politically important book. One should expect to see its arguments offered in future Bush Administration litigation, where one hopes that the courts will [*105] question the shaky assumptions that are propping a dubious grab for power.

CASE REFERENCE:
YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 US 937 (1952).

© Copyright 2006 by the author, David Schultz.

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FIRST NATIONS SACRED SITES IN CANADA’S COURTS

by Michael Lee Ross. Vancouver: UBC Press, 2005. 248pp. Cloth $85.00 CAD/US. ISBN: 0-7748-1129-3. Paper $29.95 CAD/US. ISBN: 0-7748-1130-7.

Reviewed by John D. Whyte, Saskatchewan Institute of Public Policy, University of Regina. E-mail: john.whyte [at] uregina.ca

pp.99-101

Much of this work is very technical, and the rewards are elusive although, when grasped, are deeply significant. The bulk of Michael Lee Ross’ FIRST NATIONS SACRED SITES IN CANADA’S COURTS is a painstaking description of legal cases – each judge’s opinion at each level of decision is parsed and analyzed to the full extent of every judicial expository frailty or, happily enough when they occur, every element of intellectual imagination, cultural understanding or subtlety in normative development. The cases receiving this detailed treatment are decisions of the British Columbia courts relating to Aboriginal (specifically, First Nations) land claims.

At the centre of this careful work is a comparison, in terms of both litigation effectiveness and differences in First Nations understanding of bases of entitlement, of two legal strategies. These are the MEARES strategy (after the MEARES ISLAND case) and the HAIDA strategy (after the TAKU RIVER and HAIDA cases). The former strategy is based on the seeking of interlocutory injunctions against development on specific lands through the registration of a First Nation’s unextinguished interest in, or title to, the land. The resulting litigation – at least so far – does not deal directly with the strength of title claims but with the relative weight of the competing interests in either granting or withholding an injunction until the issue of title can be judicially, or politically, resolved. The HAIDA strategy, on the other hand, is not grounded on the idea of irreparable loss, or harm, to property interests, but on the idea that government licenses for land development and land use have been issued without fulfilling constitutional obligations to consult with affected First Nations over adequate recognition and protection of their interests. The distinction is between a claim based on a substantive entitlement to certain land interests that cannot be ignored or destroyed through activity that is irreversibly harmful and a claim that, in essence, asserts the irreducibility of First Nation political entitlement to participate in regulation that affects key interests. One strategy is that of an interest holder and the other that of a self-determining distinct political society. The former strategy relies on obtaining current recognition and protection for what an indigenous people once unequivocally held and the latter strategy relies on the idea of protecting what an indigenous people once unequivocally were.

From the perspective of determining the most authentic form of the politics (and jurisprudence) of recognition, there is probably no basis for preferring political identity over recognition of property interests. Both speak to the idea of a [*100] fully normative, self-regulating society prior to settlement and to the idea that, however horrible the practices of colonization, it is still possible to restore partial dignity of both the settler society and the indigenous society through accepting the non-assimilationist reality of continuing political authority and collective entitlement. In truth, Ross hardly relates his detailed account of case law to these broader constitutional (or inter-societal) meanings, with the result that the effort of sifting through the details of lawyers’ arguments and courts’ justifications is scantily rewarded, apart from the joy of having a detailed knowledge of a complex body of jurisprudence, a reward that is not to be dismissed lightly if one is responsible for tendering legal advice.

Ross is a little bolder in assessing the effectiveness of the two strategies in terms of which best vindicates First Nations’ interests. He identifies the higher and more respectful level of inter-cultural relating that takes place under the HAIDA strategy. That strategy is based on the Supreme Court of Canada’s elaboration on the recognition of Aboriginal rights in section 35(1) of the Constitution Act, 1982. This judicial development goes beyond simply placing a restraint on the state’s extinguishment powers or a guarantee of a freedom to exercise rights. It establishes an on-going role, through political and regulatory participation, in the state processes that engage vital interests. The state must not only recognize rights. It must consult with First Nations political institutions about those rights in order to completely avoid infringement or, if state limitation of a right is compelling or essential, to ensure sensitivity to, and respect for, Aboriginal rights. In other words, the HAIDA strategy more explicitly constructs validation of First Nations political authority, as well as of reconciliation and an on-going relationship based on mutual acceptance.

Although the account of legal cases dominates this book, it is not the whole book, nor is it its primary intellectual project. As the title suggests, Ross is interested in the capacity of the Canadian legal process to grasp the concept of sacred sites and to factor that concept into its legal order. Ross’ interest in the MEARES and HAIDA strategies is not just to determine the greater effectiveness in protecting First Nations land interests, but in exploring which shows greater promise in grasping and honouring the idea of sacred sites. However, at the end of his work he states that under both strategies there is insufficient sensitivity to the nature of the claim for the protection of sacred sites, and he notes the judicial failure of cultural understanding that lies at the heart of the failure to recognize the weight of claims to preserve sacred sites. And, of course, he is right. Courts’ understanding of what sacred sites are is deplorable. Courts’ treatment of sacred sites is unfair and betrays an epistemological bias against First Nations people. To most courts a claim to protect a sacred site is heard simply as a hyper claim – a mere rhetorical convenience, perhaps – and is not placed in the context of preserving essential identity or preserving the right relationship with community and Creation. Of course, it takes new [*101] cultural understanding to understand land as not simply the currency of economic transactions but as space where humans have sought to experience, and have experienced, connection to the spiritual, the transcendent and the eternal – space that the greater spirit behind our existence has identified as the place in which (and more importantly, through which) the experiences of atonement and redemption might be fashioned.

Ross, the cultural bridge-builder is, naturally, less pedestrian than Ross, the lawyer. His search for a key to cross-cultural understanding of sacred sites is more artful, elliptical and lyrical (although he is also relentlessly repetitive). In the competition for resources there is bound to be skepticism over any claim and over the provenance under which it is made. But there is a deeper malaise in this failure to respect the struggle to protect sacred sites. We are well used to accommodating claims based on deep cultural differences when we harbour a sense of respect for the people whose customs we are asked to accept. The experience of colonizing indigenous peoples however is not one that has produced respect. In fact, respect would have slowed down the process of exploiting a new land. We used every form of denigration to strip away respect for Aboriginal people and their cultures, social order, languages, religions and sources of strength and identity. We believe that we have moved past the period of destructive colonization, but what clearly lingers is the notion that indigenous instruments of spiritual experience, unlike our major systems of faith, can still legitimately be negotiated away in the face of the imperatives of markets and economic development. Although Ross, at the end of his work, claims to be hopeful about reforming the courts’ approach to claims to protect sacred sites, his book does not produce a basis for hope that we will soon factor into the jurisprudence of First Nations relations the ideas of living on blessed land, or of having a spiritual relationship with land.

CASE REEFERENCES:
TAKU RIVER TLINGIT FIRST NATION v. BRITISH COLUMBIA (PROJECT ASSESSMENT DIRECTOR), [2004] 3 S.C.R. 550.

HAIDA NATION v. BRITISH COLUMBIA (MINISTER OF FINANCE), [2004] 3 S.C.R. 511.

MACMILLAN BLOEDEL v. MULLIN (Meares Island case), [1985] 3 W.W.R. 577 (B.C.C.A.).

© Copyright 2006 by the author, John D. Whyte.

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THE LOGIC OF PERSECUTION: FREE EXPRESSION AND THE McCARTHY ERA

by Martin H. Redish. Stanford CA: Stanford University Press, 2005. 320pp. Cloth. $55.00. ISBN: 0-8047-4804-7.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber [at] Grinnell.edu.

pp.92-98

THE LOGIC OF PERSECUTION, by Martin Redish is a well-crafted and consistently engrossing attempt to reconfigure our understanding of “McCarthy era” constitutional history (the late 1940s-50’s public and private efforts to counteract and repress perceived threats to national security from domestic and Soviet communists) in light of, and in relation to, interpretations of various facets of First Amendment jurisprudence. Its synergistic and pragmatic use of historical materials, formalist conceptions and categories, facets of conventional and non-conventional First Amendment theory and doctrinal analysis, and democratic political theory (all of this familiar to political scientists, if not legal scholars, as a meld of legal and political model materials) make for arguments and conclusions which are, in and of themselves, and in light of current political and legal events, sufficiently serious and purposeful to be worthy of our careful attention and critical assessment.

The first chapter introduces Redish’s historical and formalistic approach to McCarthy era anti-communist activities (Joseph McCarthy himself has virtually no role in the analysis) which, combined with free speech theory, constitutes the general framework for the book as a whole. Via the so-called Comintern and Verona documents, Redish seeks to transcend what he locates as the typical bifurcated, right-left ideological debates about the McCarthy era. These documents purportedly confirm the extent to which there were, in fact, sustained (covert) communist intentions and activities potentially adverse to the nation’s security. Redish contends that understanding these documents requires an approach which goes beyond typical bifurcated ideological thinking—wherein virtually all counter-communist activities are either warranted or repressive.

As I read it, Redish’s free speech theory has two fundamental premises. The first evolves from the conventional distinction between protected speech and unprotected action (even if speech-correlated): speech that coaches or supports the violent overthrow of the government may be protected, versus espionage activities, which are not protected. The second premise is that the preeminent reason that justifies protecting political speech is to guarantee a political process that provides for “self-rule, popular sovereignty, and public accountability” (p.9). Working out from these premises, Redish’s synergistic use of his argumentative materials leads repeatedly to finding that “constitutional reality is far more complex than either the standard liberal or conservative positions on the issues might suggest” (p.12). [*93] Indeed, the complexity of the realities of First Amendment considerations is the pragmatic motif of Redish’s treatment of McCarthy era counter-communist activities through the chapters that follow.

Chapter Two works out from the two premises to construct an historical-formalistic characterization of “the legal framework established by the anticommunist network to fight communism and communists” (p.25). This characterization first focuses on what is identified as the 1950s “right-privilege” distinction: First Amendment concerns are high when government subjects citizens to criminal penalties following speech and activities, but is abated when governmental policies restrict benefits (privileges), even in exchange for trading off a right. Pointing out that such trade-offs are now forbidden by the “unconstitutional conditions” doctrine, Redish then draws a set of categorical distinctions to answer questions arising when benefits and deprivations violate the First Amendment. From there, Redish evaluates whether or not, or to what extent, there are serious First Amendment problems with McCarthy era policies, such as denying communists positions in government; preventing communists from leadership positions in labor unions, excluding communists from teaching in public schools, and creating loyalty security programs.

Redish continues with categorical distinctions to provide a conceptual “typography” for framing a number of other McCarthy era laws and policies. These include the Smith and McCarran Acts (forbidding advocacy or organizing for the sake of forceful overthrow of the government and requiring communist organizations to register with the government respectively); House Un-American Activities Committee (HUAC) investigations of supposed domestic and foreign un-American activities, subversion, and propaganda, as well as associated constitutional questions about the scope of HUAC’s authority; and private shunning such as boycotts and blacklists. In light of historical evidence documenting communist espionage during the period and his categorical typography, Redish proposes a tripartite hierarchy for situating the constitutionality of anti-communist policies: clearly constitutional, clearly unconstitutional, and “a third category. . . [that] is far more ambiguous and is therefore deserving of considerably more intense constitutional analysis” (p.45). This third place in the hierarchy is where THE LOGIC OF PERSECUTION is meant to make a contribution to McCarthy era constitutional history, and free speech theory more generally considered.

The emphasis in Chapter Three is on free speech theory. Its main point is to rejoinder legal scholar Vincent Blasi’s “pathological perspective” on First Amendment. As Redish portrays it, Blasi contends that First Amendment jurisprudence in “ordinary times” should be formulated so that it will compensate for efforts to repress speech and expression in putatively extra-ordinary times. Redish presents historical, logical, theoretical, practical, and [*94] normative reasons for rejecting a pathological perspective. Accordingly, using the McCarthy era as a paradigm, he defends a “broad-based value analysis” (p.60) of the First Amendment, one that expands on the speech theory premise about political processes to include “the positive role of the free speech guarantee as a catalyst in tapping and developing the uniquely creative and intellectual capacities of the individual” (p.61). (Political Scientists might take some satisfaction from Redish’s point that theory, categories, or doctrines do not say much about whether a Court can be efficacious in protecting First Amendment concerns in times of duress.)

Chapter Four may be the key chapter. It addresses facets of constitutional questions about when advocacy of unlawful conduct falls under the umbrella of First Amendment protection. Focusing on the Comintern and Verona documents, pre-Cold War politics, and the reasoning in DENNIS v. UNITED STATES (sustaining convictions under the Smith Act), Redish concludes that: 1) the ideological right is correct about the very real threat posed by communists during the McCarthy era; 2) the ideological left is correct that the government engaged in constitutionally unwarranted activities; and 3) past and current First Amendment theory and doctrines on unlawful adequacy fail to manage the competing interests manifest in the positions of the right and the left. To compensate for that, Redish advances his candidate to “accommodate all of the vital competing interests implicated in the regulation of unlawful advocacy” (p.131), what he calls the “selective categorization model” (p.67).

This model rejects a mono-theoretical approach to First Amendment doctrine and would have adjudicators choose one of three current conventional First Amendment doctrinal models (referred to as definitional, categorical, or speech-protective balancing), “on the basis of a pragmatic attempt to tailor First Amendment interpretation to the unique needs of specific situations” (p.67). Redish’s analysis of the conventional models (as well as of his own) leads him to say that selective categorization will not escape altogether the “intellectual confusion” (p.68) and potential case-by-case manipulations (p.69) that attend current mono-theoretical approaches to managing competing interests in First Amendment adjudication. Hence, the primary virtue he claims for selective categorization is that it requires “defined conceptual marking points that establish the categorical distinctions to be applied” (p.69). Once in place, it would offer the best chance that there could be “a large speed bump in the way of . . . suppression” (p.123) associated with the excesses of McCarthy era policies.

At a higher level of generality, Redish also explains what he thinks are the boundaries of limits on the protection of unlawful advocacy by constructing a novel four-fold categorization for judicial fact finding related to advocacy and unlawful conduct—”confined” unlawful advocacy, “unconfined unlawful advocacy, speech-acts, and informational speech.” Here again, Redish claims that the primary virtue of his approach is its commonsense [*95] appreciation of the reality of competing interests when it comes to advocacy and unlawful conduct. He also defends his four-fold categorization as the best, pragmatic response to the enigmatic nature of the text of the Constitution and history of the First Amendment, and frankly speaks to the strengths and weaknesses of his own approach. Once more, Redish makes the point that “no constitutional doctrine or precept can restrain a Court and a nation hell-bent on suppression” (p.123).

Hell-bent suppression is the topic of Chapter Five. Redish considers both HUAC investigations of communism in Hollywood alongside private efforts, such as blacklisting, to counter perceived communists threats in the motion picture industry. The principal argumentative chord that Redish strikes here combines notes from free speech theory with those from rights of association and non-association. One note draws on a comparison and contrast between the logic of BOY SCOUTS OF AMERICA v. DALE (recognizing a First Amendment right of association that legitimized the BSA to expel a homosexual scout leader) and the shunning (e.g., private blacklists) of communists, whether subsequent to or independent of HUAC investigations. Another note, put together with the first, involves a critical analysis of the theoretical and doctrinal weaknesses of DALE, leading to a third note which Redish intends to be a novel contribution to free speech theory.

This note involves “the affirmative right of association,” put together with a “right of nonassociation” and “the line of cases recognizing a First Amendment right not to be forced to speak” (p.134). Redish’s composition leads him to defend yet another categorical distinction, this one between protected active and passive rights to refuse to associate. To illustrate, DALE rights cover the (active) right to refuse to associate by a group with a specific political or social purpose it espouses. As I understand it, Redish would expand DALE rights to include a (passive) association right to refuse to associate and “not to speak” with those persons that a group finds offensive, independent of the political or social purposes of the group (e.g., an orchestra refusing to play with a racist, or anti-Semite.)

This proposed expanded DALE doctrine would legitimize as First Amendment protected behavior the McCarthy era shunning of communists by those who found communists offensive (p.134). Granted that legitimization, Redish ventures to say that, HUAC’s actual practices aside, governmental activities akin to them, properly formulated and executed to expose private political affiliations of citizens “facilitating the exercise of nonassociational First Amendment rights” (p.135), may be justifiable. Redish takes care to articulate how and why any such exercise of power in the name of nonassociational rights (and rights not to be forced to speak) also conflicts with conventional First Amendment rights of privacy. To manage these conflicts he builds on the speech/action distinction to frame a tri-partite categorization of forms of shunning behavior based on “the reason to shun” (the cognitive variable) and “the nature of the personal [*96] interaction being shunned” (the non-cognitive variable) (p.149).

I excuse myself from a summary of the formalistic arguments, boundary drawing, and findings about free speech, privacy, and governmental power that ensue. I will, however, risk the distortions that attend summing up things where the devils are in the details. The bottom line is that tri-partite categorization formulation is designed to bring to the fore the extent to which some shunning behaviors would be, when sorted out by tripartite categorization, more ambiguous than convention would expect, and perhaps produce First Amendment close calls! That said, the chapter ends with the admission and admonition that the ambiguities and complexities arising from this categorical sorting out may have “created more problems than. . . [they] solved” (p.171). To the extent that that is so, Redish suggests that these lessons in ambiguity and complexity can be constructive, in and of themselves.

The final substantive Chapter Six covers free speech theory and public education. The conceptual key to Redish’s approach to McCarthy era governmental policies regarding public education (e.g., investigations into communist influences, dismissing known communist teachers, and loyalty oaths) is a “virtually intractable dilemma” (p.178). “To the extent a community uses its education system. . . as. . . a. . . means of inculcating societal values in its youth, a troubling inconsistency between the values of free thought underlying the constitutional right of free expression and the functions performed by public education necessarily arises” (p.18). Redish critically reviews three doctrinal models regarding value inculcation and free thought, and finds them inadequate in the face of this dilemma because they “give rise to potentially chaotic and harmful judicial interference in the educational process, or both” (p.205).

Redish’s remedy is the “anti-indoctrination model.” It is constructed to work within the paradox by line-drawing strategies reflecting three central principles: 1) judicial recognition that there is no such thing as a false idea (p.186), 2) judicial deference to pedagogical discretion to make curricular choices (pp.190, 206), and 3) due judicial vigilance for unwarranted policies “to influence the future political, social, or economic views of. . . . students” not related to curricular discretion (p.206). What holds these three [*97] principles together and drives line drawing between legitimate and illegitimate public policies is the macro-principle that the State (p.190) and local educational authorities have “enormous unchecked discretion to transmit values through the traditional curriculum” (p.210). Not surprisingly then, Redish concludes that McCarthy era investigations of teachers for their political (communist) convictions are not necessarily illegitimate, and refusing to hire or excluding teachers with beliefs that conflict with school authority values is permissible (solely though in connection with courses where teacher convictions contradict the values that school authorities are trying to teach). Moreover, requiring loyalty oaths could be legitimate in terms of the three principles, but is not legitimate as implemented during the McCarthy era (conventional law on loyalty oaths having it about right).

Redish concludes the chapter by trying his hand at extrapolating from the McCarthy era analysis to contemporary issues, such as school bulletin boards, textbook selections, and then doubling-back to the McCarthy era to address policies controlling teachers’ political activities. Substance aside, what these extrapolations and the previous analysis add up to methodologically is that there just does not appear to be a “cure” (p.218) for the vexing constitutional issues of public education and free speech. Consequently, the final pitch that Redish makes for adjudication along the lines of the anti-indoctrination model is that it would be better than any other approach at uncovering and exposing the dilemmas involved, as well as, at the margins, providing some (small) greater possibility of shining a light on illegitimate exercises of school discretion.

The last chapter is terse. It emphasizes a defense of the historical-formalist approach to the McCarthy era and its implications for innovative conceptions of unlawful advocacy, the rights of nonassociation, and public education. Beyond that, the conclusion crystallized for me what were otherwise sporadic, but recurring, associations I had involving the text and recent political and constitutional events and issues—e.g., the Patriot Act trial of Professor Sami Al-Arian in Florida; President Bush’s defense of Executive Power to use the National Security Agency to intercept domestic private communications without a warrant; the broader issue of the legitimate reach of Executive power to restrict civil liberties in “wartime;” and the Dover Area School District (Pa.) controversy and trial over the introduction of “intelligent design” into the school curriculum.

Likeminded scholars and graduate students who have a taste for the argumentative style of subtle (sometimes knotty) formalistic distinctions mixed with political model considerations, and who can tolerate the potential for frustrating some of their own ideological and doctrinal convictions, might enjoy trying their hands at extrapolating from Redish’s McCarthy era analysis to like contemporary events and issues. (As an aside, this book is well crafted and lucid, but it is also formalistic—so, I suspect that undergraduates will need some guidance to navigate the categorical channels of Redish’s argumentative style.)

In fairness to the author, I admit that I found it hard to read this book solely on its own terms, without recent events in mind. Those readers with greater self-discipline will take on the task of evaluating what Redish has to say in light of the political science, legal, and history literatures on free speech in times of political unrest and crisis. And readers of a First Amendment jurisprudential will test the strengths and weaknesses of Redish’s “pragmatic formalism” (Redish 1995, at 9) and its accommodations of categorical imperatives with consequentialist considerations. [*98]

To sum it up, the preface sets out the three goals of this book: to re-conceptualize the McCarthy era from the perspective of free speech theory; to use the McCarthy era as a paradigm to reconsider free speech theory in historical-formalistic terms; and to have historical-formalism inform both the study of constitutional history and law (pp.ix-x). The book delivers on these three goals, and does so in an intellectually delightful and practiced way.

REFERENCES:
Blasi, Vincent. 1985. “The Pathological Perspective and the First Amendment.” 85 COLUMBIA LAW REVIEW 449-514.

Gillman, Howard. 1996. Book Review: The Constitution As Political Structure. 544 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 226.

Redish, Martin. 1995. THE CONSTITUTION AS POLITICAL STRUCTURE. New York and Oxford. Oxford University Press.

CASE REFERENCES:
BOY SCOUTS OF AMERICA v. DALE, 530 US 640 (2000).

DENNIS v. UNITED STATES, 341 US 494 (1951).

© Copyright 2006 by the author, Ira L. Strauber.

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STRATEGIC BEHAVIOR AND POLICY CHOICE ON THE U.S. SUPREME COURT

by Thomas H. Hammond, Chris W. Bonneau and Reginald S. Sheehan. Stanford: Stanford University Press, 2005. 328pp. Cloth $65.00. ISBN: 0-8047-5145-5. Paper $24.95. ISBN: 0-8047-5146-3.

Reviewed by Chad Westerland, Department of Political Science, University of Arizona. Email: cwesterl [at] email.arizona.edu

pp.87-91

Strategic alternatives to the attitudinal model have both implicitly and explicitly invoked rational choice models to explain the choices justices make. Until now, this literature has been missing a fully integrated model of the sequential decisions made by the Court. With STRATEGIC BEHAVIOR AND POLICY CHOICE ON THE U.S. SUPREME COURT, Thomas Hammond, Chris Bonneau, and Reginald Sheehan have attempted to fill this major void. The authors apply a coherent and clearly specified spatial model to each stage of the Court’s decision making process. The goal is to use the model to generate a set of behavioral predictions that distinguish between strategic and sincere decisions at each stage in the process.

The book is organized into three sections. Part I gives an initial outline of the assumptions that underlie the rational choice model that is to be applied and provides a review of the problems the authors have with the attitudinal model and, to a lesser extent, the existing invocations of strategic alternatives. Chapter 2 consists of a list of seven pairs of distinctions between different theories of decision making, which incidentally is the first of many similarly presented lists of ideas (for example, distinction 2 is itself a list of six problems with theories of attitude activation). The aim is to justify the rational choice model advanced later, since the seven distinctions serve as the fundamental assumptions for the authors’ model. The distinctions vary in importance, but as I will discuss below, a central distinction is the question of whether or not a status quo policy position must be explicitly modeled. The existence of a status quo is essential to the model advanced in the book, as it provides a reference for all decisions. In fact, the model is not possible without a well defined status quo.

Chapter 3 defends the theoretical perspective advanced in the previous chapter by critiquing the problems the authors have with the attitudinal model. The authors have four problems (and three issues) with the attitudinal model as developed by Segal and Spaeth (1993, 2002). Hammond, Bonneau, and Sheehan find Segal’s and Spaeth’s invocation of attitude-activation theories in the first version of SCAM to be inconsistent with the version advanced in SCAMR. They argue that more than the final vote needs to be explained, given that justices make multiple decisions before the vote on the merits and that the Court sets policy with written opinions. Six reasons are also given for why justices’ merit votes might reflect strategic considerations. After the determination of a need for a [*88] strategic model of decision making, the authors note that advocates of strategic supplements to the attitudinal model have failed to provide formal models of strategic behavior, which results in an inability to distinguish adequately between sincere and strategic behaviors.

Part II is the application of the model. After a superfluous chapter on the general utility of formal models (Chapter 4), the assumptions and definitions of the model are given. Some of Chapter 5 merely introduces rudimentary concepts central to any spatial model, such as ideal points and the shapes of utility functions. More importantly, several essential assumptions behind the model are presented. In particular, there exists a status quo, justices have perfect information about the preferences of other justices, cases are unidimensional and independent, justices cannot write concurring opinions, and opinion writing is costless.

I imagine there will be a fair amount of variance in how readers respond to these initial assumptions. I will briefly discuss two of my concerns. The existence of a status quo policy is to some extent an obvious assumption to make. The authors state that “[i]f a justice does not know the location of the status quo at every stage . . . he or she could scarcely make any rational decision at all” (p.85). The Court, however, specifically devotes its resources to cases in which the legal state of the world may be less than clear. To be sure, the status quo might simply be the policy location of the lower court decision under review or existing Supreme Court precedent, but then what is the status quo when there is circuit or state and federal conflict or in a case with novel issues? Further, assuming perfect information about the location of the status quo ignores a very strong rationale for why the Court’s process exists in the first place. The authors ignore, for example, Tim Johnson’s work (2001, 2004) on oral arguments. If orals are used by justices specifically to gather information about the policy implications of the case, then it is reasonable to infer that this includes determining the location of the status quo. The decision not to allow for concurring opinions is also troubling. The rationale for doing so is that the authors cannot explain why justices would do so within the context of their model (p.93). Clearly, the option to agree with the outcome but not with the location of the policy set in the majority opinion should have implications for how opinion coalitions are formed.

In presenting the model, the authors start with the Court’s final decision and work backwards. Chapter 6 applies the spatial model to the final vote and coalition formation. The model is clearly presented, and the results and implications are thoroughly examined. The model itself is straightforward. Nine justices arrayed in a unidimensional policy space align in various coalitions depending on the location of the status quo and the location of the proposed new policy. Also, three variants of the model on how justices respond to draft opinions are offered, which are really three different sets of assumptions. In the open-bidding model, justices freely and aggressively distribute responses to draft opinions, and in the median holdout version, [*89] justices will not vote until policy moves as close as possible to their respective ideal points. The result of both versions is simply the median voter theorem. Setting the policy at the median’s ideal point is always the equilibrium outcome. In the agenda control model, justices passively respond to draft opinions, meaning justices will either endorse or not endorse the opinion. If the opinion is better than the status quo for a justice, it will be endorsed. The result from this version of the model is that an opinion writer may be able to move policy away from the median and closer to her ideal point. The authors also show that in any of the three versions all coalition sizes are possible since the final coalition size will depend on the location of the status quo. At the end of Chapter 6 (and the following three chapters), the authors provide a useful and easily digestible summary of the theoretical results.

Chapter 6 is critical since forward-thinking justices will be making decisions at earlier stages based on where policy will eventually be set. If policy will be set at the median’s ideal point, then opinion assignment, conference voting, and cert decisions are not very interesting. Who cares who writes the opinion or who assigns the opinion if all of the justices know that the opinion will eventually converge on the median’s ideal point? If O’Connor is the median, then policy set forth from a coalition of Scalia, Thomas, Rehnquist, Kennedy and O’Connor is no different from the policy set forth by a coalition of Stevens, Souter, Breyer, Ginsburg, and O’Connor. This means that if the open-bidding and median holdout models are correct, then there is no need to model any of the other stages, with the possible exception of the cert decision. The authors recognize this obvious fact, and note that if either the open-bidding or the median holdout model is true, then there is no need to continue (pp.133-137). Thus, the agenda-control model must be persuasive for the rest of the book to have any appeal. The absence of any serious discussion about which of the three variants is most likely suggests the authors are agnostic, but given their own assumption of costless opinion writing, the agenda control variant is surely the least likely model. Why would policy motivated justices passively accept any opinion that is better than the status quo but worse than another majority preferred outcome, if a costless behavior can achieve that outcome? Presumably, if writing a majority opinion is costless (or even relatively cheap), then drafting alternative opinions would be easy enough. And since all justices are assumed to have perfect information about other justices’ preferences, convergence to the median would not be difficult. The agenda-control variant would have to be an endogenously created and maintained norm of deference to opinion writers, but no justification in Chapter 6 is given for why such a norm would ever be considered.

Chapter 7 presents the opinion assignment model under the agenda control variation. Although the model shows self-assignment is always best (not surprising if the opinion writer matters and writing is costless), the authors state that “the empirical literature suggests that self-assignment is often not possible” (p.142). This [*90] assertion is not explored further. However, the model shows that, if the agenda variant holds and if self-assignment is not an option, then the opinion assignment can change the Court’s policy output. This is a function primarily of the distance between the median and the status quo; the closer the median is to the status quo, the less assignment will matter because that gives the opinion writer less room to maneuver. The authors thoroughly explore the implications of the agenda control model for opinion assignment.

Chapter 8 models the conference vote. Again, in the agenda control variation, the ability of the opinion writer to pull policy away from the median induces incentives for strategic conference voting. Under this condition, the model becomes considerably more complicated. Justices have incentives to misrepresent their positions in the conference, and the Chief Justice, who should always vote with the majority in order to assign the opinion, must determine whether or not conference positions are sincere. Since the goal of the associates is to get the assignment, at least one justice would be likely to express support for the Chief Justice’s ideal point. Once again, this stage of the model is carefully developed and clearly presented. The authors conclude the chapter by noting that if the agenda model is not accurate, then “the complex logic that we have developed in this chapter will be largely irrelevant” (p.212).

The final chapter in Part II concerns certiorari. The results here are obvious: sincere justices will always vote to grant cert if their ideal point is not the status quo, but if the justices are strategic, then cert will be granted if the median’s ideal point is not exactly on the status quo. The cert model is consistent across the three opinion response variants. In light of the essential (yet uncited by the authors) work of Cameron, Segal, and Songer (2000) and Lax (2003), the cert model presented in Chapter 9 can hardly be seen as an advance.

Part III consists of a chapter on the empirical implications of the model and a chapter on directions of future research. Chapter 10 details briefly what the model ultimately means for each stage in the process. Hammond, Bonneau, and Sheehan also discuss how the models may generally inform research on strategic decision making on the Court. Chapter 11 conducts a reexamination of the essential assumptions of the model and presents a cursory discussion of how legal considerations might work within the context of the model. The authors mention in Chapter 11 that the agenda control model may be justified as a time saving device, as justices may not want to trouble themselves with converging to an equilibrium (p.266-7), but given the importance of this particular variation, this discussion is not sufficient. While many of the theoretical points are given further consideration, an opportunity is missed since neither of the concluding chapters do much to connect the theoretical results of the model to the existing literature.

In the Preface, the authors state that their book should be seen as an extended “if . . . then” argument. This point certainly [*91] must be kept in mind when working through the model. This does not mean, however, that all “ifs” are equally interesting. The absence of a strong argument for the agenda control model makes me wonder about the ultimate payoff of Hammond’s, Bonneau’s, and Sheehan’s work, since otherwise they are simply stating that the median voter theorem applies to the Supreme Court. Regardless of the state of the literature, that is not a major revelation.

REFERENCES:
Cameron, Charles M., Jeffrey A. Segal, and Donald R. Songer. 2000. “Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court’s Certiorari Decisions.” 94 AMERICAN POLITICAL SCIENCE REVIEW 101–116.

Johnson, Timothy R. 2001. “Information, Oral Arguments, and Supreme Court Decision Making.” 29 AMERICAN POLITICS RESEARCH 331-351.

Johnson, Timothy R. 2004. ORAL ARGUMENTS AND DECISION MAKING ON THE UNITED STATES SUPREME COURT, by Timothy R. Johnson. Albany, NY: State University of New York Press.

Lax, Jeffrey R. 2003. “Certiorari and Compliance in the Judicial Hierarchy: Discretion, Reputation and the Rule of Four.” 15 JOURNAL OF THEORETICAL POLITICS 61–86.

Segal, Jeffrey A. and Harold J Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.

Segal, Jeffrey A. and Harold J Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. New York: Cambridge University Press.

© Copyright 2006 by the author, Chad Westerland.

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THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW

by Helen Duffy. New York: Cambridge University Press, 2005. 540pp. Hardback. £60.00/$110.00. ISBN: 0521838509. Paper £29.99/$50.00. ISBN 0521547350.

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

pp.84-86

After the events of 9-11, President Bush had a choice: he could either respond to the terrorist attacks as criminal acts or as acts of war. Were he to have chosen the former, his options could have included using the United Nations, international law, the International Court of Justice, and perhaps even the International Criminal Court as forums and bodies to deal with terrorism, al-Qaeda, and the Taliban.

Bush chose war. In so choosing, he also opted for a set of policy options that would espouse anticipatory military action in the name of self defense. It would yield classification of captured Al-Qaeda and Taliban as “enemy combatants” and therefore not entitled to prisoner of war status under the Geneva Convention Relative to the Treatment of Prisoners of War. He, or rather memoranda drafted for him by John C. Yoo—now at Boalt Hall—and later by the Office of Legal Council, including the infamous “torture memo,” led to the unilateral suspension of the 1994 Convention Against Torture, thereby endorsing the interrogation tactics found at Abu Ghraib. Finally, Bush’s disregard of international humanitarian law resulted in presidential orders prescribing the treatment of detainees at Guantanamo Bay.

In making his choice to respond to the events of 9-11 as acts of war, Bush opted to invoke his executive power and authority as Commander in Chief to interpret international law to his liking. Yet were these interpretations credible? Could the actions that Bush took be read as being consistent with international law? According to Helen Duffy, the answer is a resounding no.

THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW should be read by Yoo, Bush, and others who seem to assert that international law is not binding on the United States and that America can simply disregard it as the country moves forward in its war on terror. Helen Duffy—a human rights specialist, former legal officer for the International Criminal Tribunal for the former Yugoslavia, and past counsel for Human Rights Watch—has authored a magnificent overview of international law as it addresses terrorism. She applies her arguments almost point by point to show the dubious legal stance of the Bush Administration in how it has classified and treated prisoners and engaged in military action. The book offers a great chapter by chapter analysis of international law or conventions, followed by specific application or critique of how well Bush policies stack up against them. [*85]

Part One of the book commences with seeking to understand the concept of “terrorism” under international law. Noting that there are no clear or consistent definitions of terrorism, Duffy indicates that a variety of domestic and international laws, conventions, and norms nonetheless could have been used to label these acts as criminal, and therefore subject to prosecution. Their classification under domestic law could have been murder, ranging to crimes against humanity under international law. In addition, in direct response to claims by the Bush Administration that the war on terror was a new kind of struggle not envisioned by international law – that is, acts of aggression by non-state actors – Duffy provides ample documentation to show how under current law individuals could be held responsible.

Parts Two and Three provide detailed discussion of international human rights, humanitarian, and criminal law, as well as the rules on national self defense. Nowhere, Duffy concludes, did these rules give the United States the unilateral authority to invade Iraq to enforce Security Council resolutions, and they certainly did not justify Bush’s “anticipatory self-defense” strategy for either Iraq or Afghanistan. In reaching these conclusions, the author undertakes a detailed discussion of the circumstances under which a state can be held responsible for individuals, and she also shows how the Bush Administration selectively misread U.N. and Security Council Resolutions to justify its invasion of Iraq to prevent it from harming the United States with its nonexistent weapons of mass destruction.

Where the book really is impressive is in its engagement of humanitarian law and Bush’s misclassification and maltreatment of individuals captured and suspected of being terrorists. Duffy points out that the term “enemy combatant” does not exist in international law. Either one is a captured soldier or a combatant and therefore entitled to prisoner of war status under Geneva Convention III, or one is a civilian and entitled to treatment afforded the protections of the Fourth Geneva Convention. There is no legal limbo under international law – only under Bush’s gloss of it. Finally, Duffy brings her reading of international humanitarian law to an extended analysis of the classification and treatment of detainees at Guantanamo Bay, concluding again that international norms fail to support the United States.

Overall, the conclusions of the book are sobering. While acknowledging the events of 9-11 to be a tragedy, Duffy finds little legal support for the Bush Administration’s efforts to combat the war on terrorism. She notes Bush’s unilateralism and pick-and-choose flavor towards international law, and contends that, overall, it is damaging to the fabric of international cooperation in addressing terrorism. The American approach, as she notes, has already hurt legal prosecution of terrorists in Germany, and it is surely damaging to the prospects of peace and security as well. [*86]

THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW is an important contribution to an understanding of what the war on terror has become and what it could have been had international law been followed.

© Copyright 2006 by the author, David Schultz.

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MERCY ON TRIAL: WHAT IT MEANS TO STOP AN EXECUTION

by Austin Sarat. Princeton and Oxford: Princeton University Press, 2005. 352pp. Hardback. $29.95/£18.95. ISBN: 0691121400.

Reviewed by Edward Kent, Department of Philosophy, Brooklyn College, CUNY. E-mail: ekent [at] brooklyn.cuny.edu

pp.81-83

George Ryan, Governor of Illinois (later convicted for corruption while serving in an earlier political office), startled both proponents and opponents of capital punishment when he pardoned 4 and granted clemency to the remaining 167 Illinois prisoners on death row shortly before he left office in January, 2003. Opponents of capital punishment viewed Ryan as a hero in support of their cause; proponents saw his action as opening up a nest of worms and to be condemned as a travesty of justice.

Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, is author, co-author, editor of more than fifty books, including WHEN THE STATE KILLS and LAW, VIOLENCE, AND THE POSSIBILITY OF JUSTICE (both Princeton). In the present volume he explores the subtle difference between granting clemency in capital cases to avoid miscarriages of justice (which seems to have been the Ryan justification), as opposed to the older notion of clemency as an act of mercy (which has gone out of fashion in the U.S. with the cynical exploitation by politicians in recent decades of the well stoked boiler of revenge as the primary justification).

Sarat makes the central point through his six chapters of text (162 pp.) that mercy is an inherently disorderly concept, not readily shaped by rules and, thus, difficult to frame within a legal context as a guide for administrative clemency. These chapters – some expansions of earlier essays – respectively explore: 1) the decline in clemency decisions with the rise in the U.S. of the victims’ rights movement and retributivism that have “forced rejection of mercy and compassion;” 2) the resistance to gubernatorial clemency reflected in three case studies in which clemency was considered scandalous; 3) the William Haines’ critique of the Ryan action as a “raw exercise of power against the law itself;” 4) the recent rejection of rehabilitation in favor of retribution as the primary aim of punishment under the aegis of the Rehnquist Court; 5) a reexamination of Ryan’s own justification for clemency “within a victim centered political and legal environment;” 6) the current precarious state of clemency which places “mercy on trial.”

For those of us who deplore the death penalty, now almost uniquely practiced in the United States among civilized nations, Sarat’s book illuminates and highlights what one can fairly characterize as a degenerating American religio-political culture. It is a culture that glorifies revenge and retributive killing with ironic claims of religious authorization for barbaric practices deriving from ancient religious traditions [*82] – particularly the notorious lex talionis, first formulated in the commercial code of the Babylonian King, Hammurabi, and based on his assumption that his gods despised mankind and, therefore, had to be placated by pleasing sacrifices, including executions of wrongdoers in measure with their capital crimes (roughly dated in the 17 century BCE by recent scholarly assessments). Sarat’s lack of attention to such theological roots and their manifest revocations of the long-standing rabinical and Christian traditions, which have deplored the death penalty as being either a justified or practical mode of punishment, would be my only criticism of his useful explorations here: “Vengeance is mine, sayeth the Lord!” “Thou shalt not kill!” Capital punishment is inherently aberrant, and mercy is not the only or even, perhaps, the primary consideration that justifies its abolition.

One cannot help but feel some sympathy for Ryan – trained as a pharmacist and not as a lawyer – as he stumbled through the death penalty thickets. Obviously he was troubled by the discovery that at least 13 innocent persons had ended up on Illinois death rows. – more than the number actually executed since the death penalty had been revived in 1976 – and that he, himself, had nearly allowed the execution of an innocent retarded man, Andrew Porter, by his failure to grant him clemency. It was not an act of mercy, but rather a determination that the penalty should not be imposed as a consequence of miscarriages of justice upon innocents, that led Ryan to grant mass clemency. It is useful to have clearly in mind the fact that an act of clemency is not necessarily an act of mercy. However, this fact is disconcerting, as it suggests that clemency – or the lack of it – may all too frequently be a political act, possibly more determined by the granter’s private interests than those either of the beneficiary or society at large. The lesson here is that punishment – and particularly its most deadly allowable form, short of torture in addition to execution – has taken on a political dimension having little to do with the long-stated modern humane purposes of punishment – deterring crimes, rehabilitating criminals, or compensating victims. Rather, recent American penal practice relating to the death penalty has stumbled into the cesspool of revenge – allegedly comforting or somehow bringing “closure” to victims or their families by killing perpetrators – or as a cynic might observe, scoring higher rating points for the media who obsess with such things.

In sum, Sarat is much more measured in his comments on the revenge motives of our modern American criminal justice system than those more familiar with religious history might be. He sees our legal system stumbling along with the uncertainties of mercy poised as a threat to rule-determined legal decisions; those seriously trained in theology are watching a culture running on empty and being exploited by its worst elements. Since Sarat’s book has been published, we have witnessed the much publicized execution and denial of clemency to Stanley (Tookie) Williams by the Terminator. A religious charlatan has told us that Ariel Sharon is being punished by a G-d who deplores his sub-dividing of Eretz Israel. And earlier, as Texas [*83] Governor, President George Bush denied clemency, and presided over the execution of a born-again Christian, Karla Faye Tucker. Such actions are of one piece – moral and religious travesties.

Of additional use are the book’s two appendices – the Ryan statement of his reasons for granting clemency delivered at Northwestern University College of Law on January 11, 2003, and charts of grants of capital clemency by states, 1900-2004.

This book is rich in details for those who care about these issues. Its observation that clemency is disorderly when framed only as mercy is well-taken. There are, fortunately, other good reasons for granting clemency.

REFERENCES:
Sarat, Austin. 2001. LAW, VIOLENCE, AND THE POSSIBILITY OF JUSTICE. Princeton, NJ: Princeton University Press.

Sarat, Austin (ed). 2002. WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION. Princeton, NJ: Princeton University Press.

© Copyright 2006 by the author, Edward Kent.

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CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESED INDIGENOUS PEOPLES OF THEIR LANDS

by Lindsay G. Robertson. New York: Oxford University Press, 2005. 263 pp. Hardback. £17.99/$29.95. ISBN : 0-19-514869-X.

Reviewed by Mathew John, Fellow for Law and Culture, Centre for the Study of Culture and Society, Bangalore, India. E-mail: Mathew [at] cscsban.org

pp.78-80

In this compelling book Lindsay Robertson undertakes a detailed historical reconstruction of the 1823 US Supreme Court decision in JOHNSON v. M’INTOSH. Justice Marshall’s decision in this case held that the discovery of the Americas “gave the state by whose subjects or by whose authority it was made the exclusive right to settle, possess, and govern the new land, and the absolute title to the soil, subject to certain rights of occupancy only in the natives.” The decision, according to Robertson marked a founding moment in the legal regime that was fashioned to conclusively determine European land claims in the Americas. Moreover, the decision also set in motion a calamitous course of events which eventually led to the forcible appropriation of indigenous Indian lands. This book provides a detailed social history of the parties and processes that took this case through the Supreme Court. In doing so it highlights the significance of the case for the early republic and for indigenous land policy in the US, as well as other British Colonies.

Like any case-centered history, CONQUEST BY LAW focuses the bulk of its attention on describing the various social processes and actors that pulled it together and made for its significance. Robertson traces the origins of the case to the machinations of William Murray, western agent for David Frank and Company a prominent Philadelphia based trading firm. Murray’s speculative dealings in indigenous Indian land lay at the root of the JOHNSON case. He Formed the Illinois and Wabash Companies through which speculative purchases were made in large tracts of indigenous Indian lands west of the Allegheny Mountains. Such purchases were barred by a 1763 proclamation by King George III. Under the shadow of this proclamation, the purchases gave the company only a tenuous claim on the property. Against this background Robertson eases us into the story of the JOHNSON case by devoting detailed attention to the companies’ efforts to clarify title to their dubious transactions. These efforts would lead the company to the guile of Robert Goodloe Harper, a canny counsel who had successfully argued the case of questionable land purchases made by another company, the New England Mississippi Land Company, before the US Supreme Court (Chapter 1).

Harper’s stewardship of the claims of the Illinois and Wabash Companies through Congress and eventually to the US Supreme Court is an important part of the narrative structure of the book. The account of Harper’s charge includes detailed accounts of a series of submissions to Congress as well as [*79] various historical uncertainties, which for a long time kept the JOHNSON case far from the doors of the Supreme Court. However what is most significant to the larger story is the collusive manner in which the case was put together and argued when it eventually did get to the courts. Indeed, the only way the companies could get their case to court was to stage collusive litigation that purported to eject landholders whom the companies would claim were squatting on lands that legitimately belonged to the companies. However, details of the collusion could only come to light through Robertson’s serendipitous discovery of JOHNSON case documents held by the Illinois and Wabash Companies. With these records, Robertson is able to demonstrate that the selection of litigants, the choice of lawyers to represent opposing positions, as well as the determination of arguments were all stage-managed by Harper and his cohorts. One suspects that the milieu of the early American Republic provided seemingly unlimited possibilities to unscrupulous speculators for various forms of unjust enrichment.

Collusion or otherwise, Harper’s elaborately laid out plans were unwittingly scuttled by Justice John Marshall. Harper had meticulously organized arguments so that the parties would agree on all facts and would contest the case on one question alone – the effect of the proclamation of 1763 (pp.53-59). This was a question, Harper believed, to which precedent would compel a resolution in his favor (p.56). He might have well succeeded had it not been for Justice Marshall who reiterated the 1763 proclamation’s ban on indigenous Indian land purchases and, more importantly, went on to elaborate the “discovery doctrine.”

Justice Marshall could have well decided the JOHNSON case without any reference to the “discovery doctrine.” However, as Robertson points out, the case was in effect a pawn in Justice Marshall’s own designs regarding conflicting interests in the early republic, as well as to consolidate the authority of a fledgling Supreme Court. Taking us through Justice Marshall’s effort to mitigate a confrontation with the Virginia legislature as well as his concern for ensuring lands promised to his erstwhile colleagues in the Virginia Revolutionary War militia, Robertson makes the case that it was these contingencies that motivated articulation of the discovery doctrine in the JOHNSON case (Chapter 5). The decision consigned the Illinois and Wabash Companies to the recesses of history and, more importantly, underwrote the Indian removal policies embarked upon by states like Georgia with active support of the Federal Government (Chapter 6).

CONQUEST BY LAW is an important contribution to the study of the extension of European ideas and governance to other parts of the world, and the work sheds considerable light on indigenous land policies in the United States. However, it is precisely in puzzling the broader significance of this case that one finds Robertson’s account a touch limiting. Although the importance of the “discovery doctrine” to the development of indigenous land policy in the US is indisputable, it is not quite so clear that [*80] Justice Marshall’s labors in the JOHNSON case represent the origin of the doctrine. To advance such an account, one must engage the history of ideas to be able mark the ideational horizons within which judicial choices are made. Anthony Pagden (1990) offers precisely such an account when he traces the discussion of property rights of American Indians to the 15th and 16th century debates in early modern Europe. A careful reader would notice that Robertson is not oblivious to the legal possibilities available to Justice Marshall. He acknowledges the observations of key political figures, like Jefferson and others, that mere discovery was insufficient to grant title (pp.87, 127-128). Nonetheless, even though Robertson suggests the diversity of legal choices from which “discovery” was selected, his emphasis on judicial politics eclipses a more forceful discussion of the (limited) horizon of ideas that could be traced to Europe’s appreciation and consequent conquest of native America.

One might argue that the specificity of his enquiry absolves Robertson from a more detailed enquiry into the history of ideas. However, he does indicate that he sees his scholarly labors having a salience for contexts beyond the borders of the US. His “Afterword” is just such an attempt to show how the “discovery doctrine” has traveled to judicial forums in Canada and Australia. Unfortunately, beyond stating the fact that the doctrine has traveled across jurisdictions, the implications of and the questions raised by such conceptual journeys is left unexplored. In an entirely different context Ranajit Guha’s (1996) invaluable work on the permanent settlement of Bengal is an instance of what such implications might be – that is, to point to the limitations of the European legal imagination when faced with the ‘bewildering’ diversity of land relations in contexts such as India. Although Robertson is diffident on this score, his efforts are a timely reminder of the intellectual labors that await us in our future readings of decisions as important as JOHNSON.

REFRENCES:
Guha, Ranajit. 1996. A RULE OF PROPERTY FOR BENGAL: AN ESSAY ON THE IDEA OF PERMANENT SETTLEMENT. Durham: Duke University Press.

Pagden, Anthony (ed). 1990. THE LANGUAGES OF POLITICAL THEORY IN EARLY-MODERN EUROPE. Cambridge: Cambridge University Press.

CASE REFRENCES:
JOHNSON v. M’INTOSH, 21 U.S. 543 (1823).

© Copyright 2006 by the author, Mathew John.

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CONGRESS AND THE CONSTITUTION

by Neal Devins and Keith E. Whittington (eds). Duke University Press, 2005. 336pp. Cloth. $84.95. ISBN: 0-8223-3586-7. Paper. $23.95. ISBN: 0-8223-3612-X

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

CONGRESS AND THE CONSTITUTION comprises a series of essays discussing many different contexts in which Congress grapples with constitutional issues. Its contributors explicate these situations and describe the processes used by Congress and the quality of its deliberations. The argument of the volume as a whole is that congressional interpretation of the Constitution is sufficiently frequent and meaningful that it deserves to be studied by scholars of the American political system and legislative bodies. It succeeds in showing that Congress must interpret the Constitution in order to carry out its duties and that in many situations its efforts are creditable. The book includes informed discussion of how congressional interpretation of the Constitution actually does affect the operation of the government, as well as arguments about how congressional interpretation should influence the government.

One of the strengths of the essays in this volume is that they show very good awareness of recent theoretical and empirical scholarship into how Congress works and integrate these findings into discussions of congressional dealings with the Constitution. This book does not focus merely on evaluating Congress’ ability to get the Constitution right; it uses sophisticated understandings of congressional structure and members’ incentives to explicate the situations in which Congress interprets the Constitution.

One of the more impressive aspects of the book is that it presents very useful information for scholars interested in understanding how Congress’ use of its constitutional powers affects other departments of the national government. Michael Gerhardt’s chapter on the federal appointment process argues convincingly that Congress has created a nuanced and complex understanding of its role. By creating nomination procedures, dictating qualifications for particular offices, distributing powers across federal offices, and evaluating nominees, Congress has shaped the balance of power between itself and the president in the appointment process. This balance of power allows the president varying latitude, depending on the nature of the office under consideration. One implication of this finding is that the president can more or less appoint officials who mirror his own policy preferences, depending on senatorial practice regarding appointments to the particular office. Thus, students of the bureaucracy could use this finding to assess the extent to which particular agencies are likely to mirror the president’s policy goals. [*77]

Several chapters of the volume illustrate how Congress avoids grappling directly with the meaning of the Constitution. One would think that Congress might confront the meaning of the Constitution most directly when the Supreme Court, in reviewing a federal law, tells Congress that it has gotten the meaning wrong. However, Mitch Pickerell’s chapter on congressional responses to the Court’s invalidation of federal laws indicates that Congress typically tries to achieve its policy goals by rewriting the contested statute in a way that respects the Court’s decision on the matter. Thus, Congress can achieve its policy goals while avoiding a direct confrontation over the meaning of the Constitution. This conclusion is so plausible that it seems obvious after it has been explained, but it is nonetheless an uncommonly nuanced understanding of the interactions between Congress and the Court.

Some of the chapters make normative arguments about the deference with which the Supreme Court should treat Congress’ understanding of the Constitution. William Eskridge and John Ferejohn, for example, argue that some federal laws are “super-statutes.” These extraordinarily significant laws reflect a novel understanding of congressional powers that, once accepted by the popular culture, will have consequences beyond the original law. The Civil Rights Act of 1964 is perhaps the best example. The Court, argue Eskridge and Ferejohn, should take seriously the understanding of Congress’ constitutional powers manifested by the super-statute and thus absorb it as part of its own reasoning regarding the issues.

Similarly, Devins’ analysis of congressional incentives to conduct good-faith fact-finding suggests that the Court should treat Congress’ fact-finding efforts with deference in some areas (such as separation of powers) but be suspicious in areas where legislators’ electoral incentives are likely to color their judgment (such as federalism). Additional essays by Mark Tushnet, Barbara Sinclair, and Elizabeth Garrett and Adrian Vermeule evaluate whether Congress, given its institutional characteristics and the electoral goals of its members, has the capacity to interpret the Constitution.

Bruce Peabody’s engaging chapter investigates the extent to which members of Congress believe in their own ability to interpret the Constitution. Peabody shows that legislators believe they have institutional authority to interpret the Constitution, and that their perspectives (as compared to judges’ perspectives) are valuable for achieving a workable Constitutional understanding.

This book would be appropriate for a graduate course on Congress. Assigning individual essays to different graduate students would generate a profitable discussion about Congress’s interpretation of the Constitution in varying contexts. This volume includes much that is very original and thought-provoking, even for a number-crunching social scientist like myself.

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

For more information about this book, go to Duke University Press

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HOBBES ON LAW

MOBILE PEOPLE, MOBILE LAW: EXPANDING LEGAL RELATIONS IN A CONTRACTING WORLD, by Franz von Benda-Beckmann, Keebet von Benda-Beckmann and Anne Griffiths (eds). Burlington, VT: Ashgate Publishing Company, 2005. 344pp. Hardback. $114.95/£60.00. ISBN: 0-7546-2386-6.

THE CONSOLIDATED ASYLUM AND MIGRATION ACQUIS: THE EU DIRECTIVES IN AN EXPANDED EUROPE, by Peter J. van Krieken. The Hague: T.M.C. Asser Press, 2005. 345pp. Paperback. $65.00/£38.00. ISBN: 90-6704-180-7.

MIGRATION AND REFUGEE LAW: PRINCIPLES AND PRACTICE IN AUSTRALIA, by John Vrachnas, Kim Boyd, Mirko Bagaric, Penny Dimopoulos. Melbourne: Cambridge University Press, 2005. 362pp. Paperback. US$95.00/£45.00/AU$79.95. ISBN: 0521618088. Adobe eBook. US$76.00. ISBN: 0511111673.

Reviewed by Samuel S. Stanton, Jr. Visiting Assistant Professor, Department of Political Science, University of Wisconsin-Stevens Point, sstanton@uwsp.edu

pp.71-75

These three books address an important area of growing concern for scholars and students of both international law and human security—the international movement of people across borders and within states. These works consider the movement of people both of free choice as migrants (legal and illegal) and by necessity (refugees).

In MOBILE PEOPLE, MOBILE LAW (edited by Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Anne Griffiths), the reader receives an anthropological view of how mobility affects and is affected by law, and how the mobility of legal ideals affects people in areas of the world where those ideas did not originate. The introduction to the collection, written by the editors, lists the focus as two-fold (in keeping with the title). One is mobility of the law based on globalization forces. The question is what happens when norms of globalization, which in the parlance of most of the authors means Western ideas, laws, and values, encounters national and local law and is applied to specific situations (p.2). The second focus is on the mobility of people and organizations as actors in the process of making law mobile.

For some political science and legal scholars there will be a degree of linguistic confusion due to the fact that this work is a compilation of essays by scholars who are primarily anthropologists. For instance, what the authors refer to as customary law is generally referred to in political science as social practices, religious practices, or social traditions. The point remains the same—religious organizations, societal groupings (such as ethnic groups and tribes) create practices to which members adhere, and these practices often clash with modernization and with the political laws of the state.

While the focus is commendable, what primarily occurs in this work is little [*72] more than use of individual stories to throw darts at the influence of globalization on individuals and groups of people in developing countries. While many of the essays lend themselves more to sociological study, two essays stand out for application to political science and international law. One is Chapter 7, by Melanie Wiber, assessing the effectiveness of epistemic communities versus local innovation in the creation of law regulating access and economic gain from natural resources. The second is Chapter 11, by Sally E. Merry, looking at how international agreements are generated.

Wiber’s essay considers how the Canadian government adopted the notion of epistemic communities, best understood through the ideas expressed by Haas (1992), to the issue of fishery management in Nova Scotia. Wiber’s assessment is that the epistemic community that was created was narrowly focused on two issues: economics and quotas. Wiber also faults the creation of policy based on recommendations of the epistemic community, because the community did not include participation of the fishermen. What Wiber’s essay does is give us pause to consider the negative ramifications when an epistemic community format is applied to policy development, particularly when the epistemic community is not well defined.

Merry presents a quite lucid account of how international agreements are arrived at by consensus of diplomats and represent a disjuncture from what most states (and many individuals) would actually prefer to see created. She refers to this as “wordsmithing . . . to produce a single document despite these gaping disparities in views” (p.221). I would recommend this essay highly to any students of international organizations, and particularly to those who engage in interactive diplomacy simulations, such as Model United Nations or Model Arab League.

One other essay of note is Marie-Claire Foblet’s examination of dual citizenship and freedom of movement in Europe and their affect on judicial decision-making (Chapter 15). Foblet’s essay considers the problems of definition and terminology and their role in perfecting “choice-of-law” techniques in family law and their application to the legal position of migrant Muslim females.

Overall, the essays are well-written and represent the results of extensive field research. Unfortunately, it seemed at times as if the researchers crossed the line of objective observation and became too sympathetic to the subjects of their observation. As noted in the preceding paragraphs several of the essays should be utilized in studies of globalization and international law, but many lack strong objectivity and diminish the overall quality of the volume.

THE CONSOLIDATED ASYLUM AND MIGRATION ACQUIS is Peter J. van Krieken’s attempt to create a user manual regarding migration and refugee law in the European Union. As such, this book should be standard reading for migration and refugee law students who intend to practice in the EU, as well as for judges and agents of government in [*73] the EU who deal in any way with these issues. Elegant in its simplicity, this book looks at each of the major EU Council documents that set standards of practice. Included are the criteria and the detailed rules and an explanatory section for each.

The book is divided into three parts. The first part addresses refugees (asylum seekers). The Dublin Criteria and Dublin Rules are considered, as are standards for reception of asylum seekers, for granting and withdrawing refugee status, for qualification of individuals as refugees, and for giving temporary protection to individuals. A legal definition of refugee in the EU is understood according to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

The second part of the work focuses on migration. Individual sections look at long-term residency, pursuit of economic activities, students, volunteer service workers, victims of trafficking, and family reunification. Also considered are the provision of social security for migrants and the mutual recognition of decisions to expel migrants by other members of the EU. Finally, part three looks at legislative and communications issues within the EU, with particular emphasis on how these issues create definitions and stem from the 2004 EU Constitution.

Particularly useful to non-legal scholars who may use this book is the discussion of the Schengen visa and Schengen Information System produced by the Schengen Agreement (1985) and Schengen Convention (1990) and incorporated into the EU by the Amerstdam Treaty in 1999 (pp.11-15). For those unfamiliar with the idea of the Schengen Agreement and Convention, it represents the abolition of internal border controls and creation of a single external border for the control of transnational travel. A single visa with common rules was adopted to allow free movement of persons within the signatory states (p.11).

van Krieken also addresses some arguments made in favor of and against allowance of immigration to Europe. Visions for the future, the ageing of Europe, population size, availability of jobs, agricultural issues, manufacturing, remittances, the need for high-skilled labor, and trust within the society, are among the issues addressed. However, these topics are only briefly touched upon in the introduction and are not fully developed. Nonetheless, if one looks at the development of criteria and rules regarding migration and refugee status in the EU, it is not a great stretch to see the interplay of different opinions about these issues.

Overall, van Krieken has made a very informative and user-friendly contribution. He does not attempt to make argumentative examination of the rules, only to trace the rules, and explain their genesis. The work is thorough and provides a reference tool that should be welcome on the shelves of students, academics, practitioners of the law, and agents of government who work with migration and refugee issues in the EU. [*74]

John Vrachnas, Kim Boyd, Mirko Bagaric, and Penny Dimopoulos provide an informative and practical guide to migration and refugee law in Australia in MIGRATION AND REFUGEE LAW: PRINCIPLES AND PRACTICE IN AUSTRALIA. The organizational style is, for the American reader, more like that of a technical manual than a scholarly work. However, I assure readers that the work is quite scholarly. In keeping with the sub-title, in each section the authors address the statutes and related case law. The writing is clear, and explanations of statutes and cases are well constructed.

The authors of MIGRATION AND REFUGEE LAW trace the historical origins of migration laws and explain the relevance of this history to the modern immigration debate. They convey an understanding of current migration law by explaining the statutes and assessing the influence of case decisions on the process of granting immigration visas and differentiating various classifications of migration and refugee status.

This first half of the book will be useful to students of law and to academic study of court decisions. I believe this book will be a welcome addition to the readings for a wide variety of courses on Australian law and on migration law in general.

For students of human security issues, the second half of MIGRATION AND REFUGEE LAW will be of great interest. Here the authors define current international law (the 1951 Convention and 1967 Protocol) regarding refugees, and assess the Australian statutes that enable this law. Then in a break with the pattern created earlier in the book, they argue for a “fundamental re-think” in determining qualifications for refugee status.

The 1951 Convention and 1967 Protocol basically qualify individuals for refugee status if they are at risk of persecution by the government of their country of origin for political opinions, religious beliefs, nationality, race, or membership in a particular social group. The belief that one is at risk of persecution has to be well-founded. In short, the authors argue that this definition is based on Cold War calculus and should be reconsidered.

The authors propose that a person be categorized as a refugee based on basic concerns of human life (food, water, shelter) and on whether a person has well-founded fear of a violation of physical integrity or personal liberty (p.317). This definition is based a deontological versus consequentialist approach to understanding universal moral standards. This results in the development of a hierarchical understanding of human interests which places greater importance on the necessities of life and human liberty than on politics, religion and social classifications. The presentation is logically organized and provides a framework for developing arguments in ongoing studies in human security.

MIGRATION AND REFUGEE LAW might seem on the surface to be targeted primarily at legal students and Australian constitutional scholars, but [*75] the last half of the book has universal appeal. I would recommend at least this part as an addition to any course focusing on human rights, particularly refugee issues.

A common stream of thought runs through these three divergent books. In her essay in MOBILE PEOPLE, MOBILE LAW, Merry discusses the creation of international agreements as consensus that does not meet the desires of most countries. The documents on asylum and migration in the EU, organized by van Krieken, exemplify the international agreement that results from this process. As pointed out in MIGRATION AND REFUGEE LAW, several leaders in the EU expressed desires in the late 1990s and early 2000s for revamping the asylum rules to be more in line with modern realities than were the rules under the 1951 Convention and the 1967 Protocol (p.175). However, if one reads the documents as passed by the EU Council, asylum is still based broadly on the 1951 Convention and 1967 Protocol, rather than on the greater concern for human needs expressed in Chapter 18 of the Vrachnas, Boyd, Bagaric, and Dimopoulos book.

Collectively these works develop an informed statement about the history, process of development, implementation and application of migration and refugee law. Considering them separately, however, two of the works are clearly more important to legal and political science study of these issues.

REFERENCES:
Haas, Peter M. 1992. “Introduction: Epistemic Communities and International Policy Coordination.” 46 INTERNATIONAL ORGANIZATIONS 1-35.

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

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AIDS AND THE SEXUALITY OF LAW: IRONIC JURISPRUDENCE

by Joe Rollins. New York: Palgrave Macmillan, 2004. 256pp. Hardcover. $45.00. ISBN: 0312240066.

Reviewed by Susan Burgess, Department of Political Science, Ohio University. Burgess [at] ohio.edu

pp.68-70

In AIDS AND THE SEXUALITY OF LAW, Joe Rollins explores the jurisprudence of various federal appellate cases from 1985 to 1995 that address AIDS in a wide variety of contexts including adult theaters, blood donation, and prison administration, as well as litigation successfully brought by people who are HIV positive. Relying on various authoritative narratives, especially from science, Rollins argues that these cases are notable not only for what they say, but also for what they fail to say about sexuality. Purportedly scientific authority is wielded in these cases to assert that AIDS is solely a gay disease that can be effectively contained if deviant sexuality is adequately disciplined by law. Drawing heavily on queer theory, Rollins’ analysis of these cases offers a compelling account of an interesting set of outcomes, and a fascinating explanation of the political constitution of sexuality.

Rollins’ opening chapter explains several tenets of queer theory, such as the heterosexual-homosexual binary, the instability of identity, the role of the closet in constructing authoritative knowledge, and the role of irony in understanding and challenging such constructions. In subsequent chapters, Rollins applies these insights to the aforementioned cases. Through these cases, Rollins reveals the utility of academic queer theory for understanding the politics of the law of AIDS. Even though the judicial scripts vary widely, Rollins persuasively unites these cases into one coherent conceptual structure which he calls “ironic jurisprudence.”

In many of the cases that Rollins examines, the apparent solidity of heterosexual identity is shown to be ironically dependent on the identification of homosexuality with AIDS. This identification is rather shaky because the cases often depend on questionable scientific knowledge about AIDS and its transmission, along with the closeting of more challenging and reliable information about the virus. For example, in the blood donation cases, gay men with AIDS are constructed as active, spreading the virus to unsuspecting heterosexuals by polluting the donated blood supply, dirtying needles, or working as nurses on unknowing patients. Homosexuals are implicated in carrying AIDS by virtue of their sexual identity and risking the spread of the disease to heterosexuals who would otherwise appear to be risk-free.

In the adult theatre cases, Rollins argues that laws upholding regulation in the name of public health erroneously mark “alternative” sex as a cause of AIDS, thus serving to further closet homosexuality while fostering a positive construction of heterosexuality. [*69] Although border patrol tactics of surveillance and identification of patrons actually do nothing to promote public health, they do serve to further the illusion that homosexual identity is per se dangerous. Homosexuals are materially disadvantaged in these cases, while the privileges and benefits of heterosexuality, such as privacy and invisibility, are protected.

In cases dealing with prison administration, Rollins suggests that the desire to maintain the illusion of complete and unbroken power in prisons is more important than admitting that sex regularly occurs, along with the attendant risk of AIDS. Even when the Court concedes in one case that a prisoner has been sexually abused in prison, such violence and its consequences for the possible transmission of AIDS are constructed as unique. Because sex challenges the power of the prison, its existence must be denied outright. In this context, a negative construction of homosexuality is not as necessary. The practice of sexuality more generally is rendered invisible.

Finally, Rollins presents several case scenarios depicting homosexual identity as more stable than in the cases discussed in previous chapters. Gay men with HIV are humanized through compassionate narratives of self-determination and mortality. Interestingly, where homosexuality is more stable, the power of the state is more flexible. Accordingly, even though HIV-positive litigants are generally successful here, these cases allow the courts to expand state power significantly, an ironic conclusion if ever there was one.

Thus, Rollins calls for us to embrace his construction of “ironic jurisprudence.” He notes that the irony connotes instability and flexibility, while jurisprudence is often associated with stability and order in law. Irony compels one to note the contingency of meaning and the contestability and negotiation present in judicial narratives. Thus, even though AIDS is consistently portrayed as a gay disease, health effects are typically maximized in the cases dealing with heterosexuals who are HIV-positive, and minimized in those dealing with gay men who are HIV-positive. Accordingly, Rollins concludes that “what is preserved most assiduously in these materials are social privileges, hierarchies of institutional and political power and identity categories” (p.150). He argues that irony can serve as a kind of lightness in the face of such contradiction, promoting contestation and the possibility for change. Where jurisprudence seeks to stabilize, irony offers laughter in the face of power and domination, serving as a survival strategy which, ironically, is even more useful as the situation becomes increasingly grim.

This book is quite impressive in several ways. It is the most comprehensive work on AIDS, sexuality, and case law that I have come across. It is theoretically sophisticated, yet a compelling read. No mean feat for any political scientist, this achievement is particularly impressive in Rollins’ case, as he is dealing with the interesting and [*70] provocative, yet notoriously abstract and jargon-filled area of queer theory.

Rollins’ book makes an important contribution to the queer theory literature for understanding the politics of law and sexuality. “Mainstream” Political Science has only recently begun to recognize queer theory as an important part of political theory but remains reluctant to integrate its insights into interpretive and empirical work. This lag may be due to fact that, when queer theory broke into the academy in the early 1990s, much of it came out of the humanities and was rooted in psychoanalytic theory and literary criticism. However, as political scientists such as Elizabeth Wingrove and myself have more recently noted, the work of Judith Butler and other founders of queer theory may have significant import for the study of political authority and institutions. Rollins is well on his way to establishing himself as a leader in this effort.

REFERENCES:
Burgess, Susan. 2006 (forthcoming). “Queer (Theory) Eye for the Straight (Legal) Guy: Lawrence v. Texas’ Makeover of Bowers v. Hardwick.” 59 POLITICAL RESEARCH QUARTERLY.

Wingrove, Elizabeth. 2000. ROUSSEAU’S REPUBLICAN ROMANCE. Princeton: Princeton University Press.

© Copyright 2006 by the author, Susan Burgess.

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THE CONSTITUTION OF INDEPENDENCE: THE DEVELOPMENT OF CONSTITUTIONAL THEORY IN AUSTRALIA, CANADA AND NEW ZEALAND

by Peter C Oliver. Oxford: Oxford University Press, 2005. 392pp. Hardback. £50.00/ $95.00. ISBN: 0-19-826895-5.

Review by Andrew McDonald, Visiting Scholar, The Institute of Governmental Studies, University of California, Berkeley. Email: andrew.mcdonald [at] gtnet.gov.uk

pp.65-67

THE CONSTITUTION OF INDEPENDENCE is a work of formidable scholarship. Peter Oliver analyses how it was that Australia, Canada and New Zealand came to end their constitutional ties to the United Kingdom. Each of the Dominions effected the change through different means and at different times, but common concerns run through the contemporary debates over the route to independence. Oliver focuses on the legal and theoretical bases for each of the transitions. And, in particular, he worries away at one central question: how could the UK Parliament’s competence to legislate for the Dominions be brought to an end? According to orthodox British constitutional doctrine, as espoused by Dicey, Parliament is sovereign. It cannot be bound by the actions of others; nor can it bind successor Parliaments. Thus there is a logical problem with any ‘final’ act – in Westminster or a Dominion Parliament – to cut the link between the UK and its former Imperial possessions. Those who imbibe pure Diceyan doctrine might question the validity of such measures – and conjure up the spectre of a subsequent reassertion of Westminster’s dominance.

This, then, is the territory that Oliver crosses – and re-crosses. This work takes in 150 years of constitutional history in three countries. It is a work of constitutional theory – ending by offering some explanatory models which the three states may find helpful in understanding their own emergence as fully independent entities. It is a work of constitutional law – charting the attempts, successful and otherwise, to effect the final legal separation from the UK. And it is a work of intellectual history – putting the constitutional evolution of each Dominion in its intellectual context and exploring the interplay between legal developments and their interpretation by lawyers and academics.

Oliver’s command of sources is impressive – especially when he is addressing the Canadian story. He is at his most illuminating in discussing the conflicts that bedeviled the search for a domestic formula to amend the Canadian constitution. He shows how disagreement amongst Canadians helps explain the absence of a domestic formula from the British North America Act 1867. Hence, discord was inherent in Canada’s first national constitutional settlement. And it resurfaced in successive debates over the amending formula – in the run-up to the Balfour Declaration of 1926, before the Statute of Westminster of 1931, and episodically thereafter until the patriation of the constitution in 1982. [*66]

The Canadian story provides the spine for the book. Indeed, those with a particular interest in New Zealand may consider themselves somewhat short-changed by Oliver’s bias towards Canada, of which he has specialist knowledge. New Zealand’s story – first on the road to independence with a Charter in 1840 and a constitution in 1852, but last to complete the journey – is told more briefly. Australia’s trajectory is given fuller treatment. Oliver is particularly interesting on the popular involvement in the preparation and ratification of Australia’s 1900 constitution – and on the influence this process has had on Australian understanding of its claims to full independence from the UK.

But aside from some unevenness and a structure that occasionally leads him into repetition, his comparative methodology works well: the same questions are asked, and asked rigorously, of the three case studies. And common themes are identified and used to illuminate the story of each state.

But Oliver’s final plea to the reader exposes one of the book’s few failings. He hopes that he has demonstrated the importance of constitutional theory in the course charted by the three states. It is certainly true that all readers of this work will have a richer understanding of the development of constitutional theory in the three countries. But some will surely ask whether the book has demonstrated the unimportance of constitutional theory in the political development of each nation. Oliver abhors theoretical confusion: his is a search for theoretically satisfying explanations of the transition to independence. Yet his subject is the acquisition by three countries of the ultimate authority over their own constitutions. That was an inherently messy business. It was not driven by theory – although it was undoubtedly influenced by it. As Oliver concedes, political and social pressures were to the fore: theory may have complicated the path taken, but ultimately its role was secondary. The quest for independence was not to be denied by a theoretical conundrum.

Oliver quotes Brian Slattery’s (1983) observation that Canadian independence derived not from the Statute of Westminster of 1931, nor from the Canada Acts of 1982, nor indeed did it arise from any particular legal event. Rather, it was “at root a matter of fact.” This is an uncomfortable conclusion for Oliver, but many will feel that his own analysis has tended to confirm this simple assessment of the brute realities. Politics repeatedly intrude on his subtle narrative of ideas and theories. Consider, for example the view of the Canadian Supreme Court in 1982 that the constitutional reform package taken through by the Trudeau Government was irreversible. As Oliver notes, one might have expected the Court, which in the Patriation Reference of 1981 had demonstrated its faith in orthodox Imperial constitutional theory, to regard any parliamentary act to be reversible. But the Court was not taking a view on an abstract question of theory. It was ruling on a reform package which had just been sanctioned by the UK Parliament, the federal Canadian [*67] Parliament and by all but one of the Canadian provinces.

It would have been possible to have told this story from a quite different perspective: as a political narrative with consequences for constitutional theory. This might have helped us to understand better the intellectual developments that Oliver charts. But that is to argue for a quite different sort of book from the one Oliver has written. His contribution should be praised for what it is: scholarly, rigorous and illuminating.

REFERENCE:
Slattery, Brian. 1983. “The Independence of Canada.” 5 SUPREME COURT LAW REVIEW 391.

© Copyright 2006 by the author, Andrew McDonald.

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BEYOND THE FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND PLURALISM

by Samuel P. Nelson. Baltimore and London: The Johns Hopkins University Press, 2005. 240pp. Cloth. $50.00. ISBN: 0-8018-8173-0.

Reviewed by Steven B. Lichtman, Department of Political Science, University of Vermont. Email: steven.lichtman [at] uvm.edu

pp.59-64

Contemporary First Amendment theorists must inevitably struggle with a curious “problem.” The First Amendment worked—and it worked in spectacular fashion. Gone are the days in which American governments – federal or state – attempted to engage in wholesale censorship. In 1964, Lenny Bruce was jailed for a blue standup routine delivered at New York’s Café Au Go Go; in 2005, Howard Stern secured a $100 million dollar five-year contract to appear on satellite radio. Even in a post-9/11 world in which basic civil liberties seem to be under threat from initiatives like the USA PATRIOT Act, the aborted Total Information Awareness scheme, and the recently-revealed domestic eavesdropping program, it is exceptionally rare to see government try to repress speech directly. If the First Amendment is a civic teaching tool, then, it appears to have taught us well.

That, however, is precisely the problem. While the lessons of freedom of speech and the values it represents have been well-learned by individual citizens, the lessons of First Amendment law and how to prevail in speech disputes have been well-learned by government and powerful private actors with censorial interests. There are two major reasons that government today rarely attempts to shut down expression directly: (1) it knows that it cannot, and (2) it knows that it does not have to. Indirect restrictions aimed at one thing (such as tracking potential terrorists) but with the side-effect of limiting speech can achieve censorial goals without offending the First Amendment to a degree likely to generate judicial rejection. Furthermore, censorship done by private parties instead of official actors does not even bring the First Amendment into play.

It is the strained duality between the First Amendment and free expression that is the subject of Samuel Nelson’s thought-provoking book. The First Amendment, Nelson argues, has become an incomplete and inadequate means of protecting free speech, and yet because of its dominance in the discourse of free speech, we have become hamstrung by it, unable to break away and seek a new means of valuing expression in contemporary America. We are confined, Nelson insists, by “a legal and proceduralist focus of debates about speech under the First Amendment framework” (p.3). This confinement, Nelson continues, has led us to a point in which the free flow of information that the First Amendment purports to preserve can easily be compromised.

One pertinent example Nelson provides is the Texas stockbroker who, on his own private time, was also a prominent public advocate against affirmative action. His employer, citing the [*60] company’s code of conduct as justification for its actions, ordered him to curtail his off-the-job political activities, and fired him when he refused. While the First Amendment is the standard means of adjudicating free speech claims, it is inapposite to the behavior of a privately-held corporation claiming a dubious pecuniary relationship between its public image and the unrelated political activities of one employee. That such a problem is not at all rare, and is in fact common to modern free speech disputes, is clear evidence for Nelson that a new paradigm for free speech is in order.

Nelson is, of course, not the first scholar to notice the First Amendment’s limited scope. In a 1986 article, Owen Fiss memorably claimed that the so-called “Free Speech Tradition” of protecting the street-corner speaker against governmental harassment was no longer sufficient to vindicate free speech. Indeed, this stress on speakers’ autonomy had led to the bizarre result of corporations claiming to have the same free speech “rights” as natural persons—and of those claims succeeding. Now, two decades later, the problem Fiss identified has become more acute, and BEYOND THE FIRST AMENDMENT is a broader philosophical investigation of the limitations Fiss exposed. Nelson adroitly demonstrates how a series of traditional explanations for free speech must be adjusted or even abandoned so as to accommodate new realities, especially in an internet age where conflicts about speech can easily transcend the borders of the American First Amendment regime.

The first half of the book is devoted to describing – and dismantling – three strands of thought that are said to justify free speech: libertarianism, expressivism, and egalitarianism. Each of these chapters is an impressive survey of the relevant academic literature on free expression, and taken together, they paint a comprehensive picture of the variegated nature of First Amendment theory. There are isolated times in which Nelson’s categorizations lead to some unwieldy linkages – his “expressivism” is a broad umbrella which covers both Thomas Emerson’s stress on individual self-fulfillment and Alexander Meiklejohn’s focus on democratic decisionmaking, a structure which glosses over the important distinctions between individualistic theories of free speech and communitarian visions – yet these quarrels do not detract from Nelson’s rich and wide-ranging review of the field.

The most important contribution of BEYOND THE FIRST AMENDMENT is its attempt to offer up a new model for understanding and safeguarding free speech. Having laid out his argument for the First Amendment’s contemporary deficiencies, Nelson proposes a new “pluralist” framework that shakes off the strictures of the unitary understandings he has been examining. Grounding his framework in the concept of “speech acts” advanced by John Searle and J.L. Austin and in the moral pluralism (as opposed to interest group pluralism) espoused by Isaiah Berlin and Charles Larmore, Nelson argues for an approach to expression that “denies . . . the [*61] existence of a single principle by which to judge all outcomes” (p.141).

This approach would avoid the awkward gymnastics in which other theorists have had to engage so as to allow their theory to accommodate situations that do not appear to be covered, such as Meiklejohn’s shoehorning art into his theory about speech and self-government by suggesting that exposure to art makes individuals better-formed as democratic citizens. A pluralist approach, by contrast, would dispose of the need to rationalize art into some other value, and would defend art as one of a series of values that are not superior or inferior to one another, but worthy of protection and recognition on their own terms. Speech act theory, by placing expression in broad social contexts such as the speaker-listener relationship and the commonalities of language, “denies a single underlying metric for what counts as speech” (p.147), and thus enables Nelson’s model to take shape.

As a purely philosophical matter, Nelson’s pluralist framework is certainly intriguing. The model must be more than a mere talking point, though, and Nelson wisely endeavors to show how the pluralist framework can be deployed as a means of resolving actual cases. The Supreme Court’s 1989 application of the First Amendment to flag-burning was, to Nelson, nothing more than a rote gesture that failed to account honestly for the legitimate reactions of onlookers. Using a group of veterans reacting to flag-burning protestors at a Memorial Day parade as his counterexample, Nelson shows that, while the traditional First Amendment approach mandates that “the flag-burning speaker is protected, and the audience of veterans has no claim to make,” the pluralist approach instead provides that “both the speaker and the audience have claims to make, and these may be resolved politically” (p.147).

Perhaps one way of describing Nelson’s pluralist framework is to depict it as Stanley Fish with a smile. Fish has famously argued that “free speech” is nothing more than cheap rhetorical cover for pure politics; political actors who seek to advance their agendas need only lay claim to the label of “free speech” and their chances of success increase exponentially. Where Fish was deconstructive, Nelson is constructive. Fish was merely urging a cantankerously candid approach that would recognize this tomfoolery for what it is. Nelson’s pluralist model not only acknowledges, a la Fish, that “nonspeech issues are turned into speech claims for the rhetorical benefits that come along with an invocation of free speech,” but it also enables such claims to be taken off the table entirely as needless distractions, so as to “clear the way for a debate over freedom of speech” (p.156) in the relevant arenas for dispute resolution. Nelson’s model is thus both attitude and method; it allows us to be both Fishian adults about free speech in general and effective arbiters of free speech disputes in particular.

A drawback of this approach, one which Nelson addresses with varying degrees of success, is the elevation of the audience’s interests to the level of a virtual veto. A framework for speech that legitimates the claims of listeners as [*62] legally actionable seems to allow for just as much injury to the concept of freely-flowing information as the monist frameworks Nelson so persuasively disparages. Nelson comments at length on the 2002 libel verdict won in Australia by a mining tycoon who objected to material that appeared in an online version of the American business magazine Barron’s. Ultimately, Nelson concludes that in finding for the mining tycoon, despite the fact that Barron’s has few readers in the southern hemisphere, the Australian court simply took the wrong approach to free speech. Yet it must be noted that this case was resolved in a manner Nelson deems incorrect, notwithstanding the High Court of Australia’s recognition that publishing is “a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension” (DOW JONES & CO. v. GUTNICK, 2002). That the High Court got the result wrong in a Nelsonian sense while seemingly adopting a Nelsonian framework for its analysis is a powerful indicator of the seductive nature of audience-indulgence, and its potential for shutting down speech.

Nelson argues that a properly pluralist approach would “judge speakers by the standards of their own national understanding of freedom of speech or by the standards for speech prevalent in the countries that they see as their primary audience” (p.171), something which the Australian court arguably failed to do. In adopting this position, however, Nelson seems to drift uncomfortably close to the mistakes of American courts that dismiss the audience’s role. Nelson would have resolved the Australian case, for example, by unilaterally writing off an entire section of listeners as functionally irrelevant. The only method of closing the veto-loophole that pluralism opens, it seems, is a solution that at the very least gives courts a power that can be easily abused.

Nelson’s critique of the contemporary First Amendment-centered outlook on freedom of speech also tends to understress an important competing point. It has been argued elsewhere that the First Amendment was designed not as a thumping celebration of speech for its own sake, nor even as an acknowledgement that democracy requires citizens to have access to freely-flowing political information, but instead as a means of preserving American federalism and limiting the power of the national government. Leonard Levy has specifically suggested, for example, that the speech and press clauses were intended to reserve any potential powers of regulation in this area to the states. Akhil Amar has likewise pointed out that modern-day fretting about the stifling nature of a “community standards” approach, while not unwarranted, belies the original tendency of free speech advocates to seek out state legislative and judicial officials for protection against threats to expression coming from Congress.

Any limitations of the First Amendment may thus be a problem not just of theoretical construction, but a problem of the historical perspective from whence the Amendment emerged. Put another way, the First Amendment’s truncated reach is more likely a design [*63] defect, rather than a manufacturing defect. If the First Amendment does a poor job of protecting speech, this is the case not because the Amendment has been clumsily applied and interpreted by two centuries’ worth of constitutional lawyers and judges, but rather because the Amendment was invented for an entirely different purpose. Furthermore, if the Amendment were exclusively about federalism, it seems to have accomplished its mission, which could make Nelson’s plaintive appeal for reform even harder to hear. This is not to apply a triumphalist sheen to the First Amendment; it is simply not sufficient to say that the Amendment has done its intended job of cabining the reach of the federal government and be done with the inquiry. If anything, this merely gets us back to the original problem Nelson identifies, and shows how right he is. Yet Nelson’s argument would be even stronger were he more cognizant of this powerful historical counterweight that serves as added resistance to the reformulation he advocates.

BEYOND THE FIRST AMENDMENT is an intriguing and important contribution to the literature on free speech. While it is likely beyond the grasp of all but the most talented undergraduates, its overview of First Amendment theory is an excellent resource for graduate students beginning to explore the field. For scholars, it is a challenging and provocative work sure to cause us to reassess how we teach and write about the subject.



REFERENCES:
Amar, Akhil Reed, 1998. THE BILL OF RIGHTS. New Haven, CT: Yale University Press.

Austin, J.L., 1962. HOW TO DO THINGS WITH WORDS. Cambridge, MA: Harvard University Press.

Berlin, Isaiah, 1969. FOUR ESSAYS ON LIBERTY. New York: Oxford University Press.

Emerson, Thomas I., 1970. THE SYSTEM OF FREEDOM OF EXPRESSION. New York: Random House.

Fish, Stanley, 1992. THERE’S NO SUCH THING AS FREE SPEECH. Oxford: Oxford University Press.

Fiss, Owen. 1986. “Free Speech and Social Structure,” 71 IOWA LAW REVIEW 1405.

Larmore, Charles, 1996. THE MORALS OF MODERNITY. Cambridge: Cambridge University Press.

Levy, Leonard W., 1999. ORIGINS OF THE BILL OF RIGHTS. New Haven, CT: Yale University Press.

Meiklejohn, Alexander, 1948. FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT. New York: Harper.

Searle, John R., 1969. SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE. Cambridge: Cambridge University Press. [*64]

CASE REFERENCES:
DOW JONES & CO. v. GUTNICK, 2002 AUST HIGHCT LEXIS 61.

TEXAS v. JOHNSON, 491 U.S. 297 (1989).

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

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BEYOND GARRISON: ANTISLAVERY AND SOCIAL REFORM

by Bruce Laurie. New York: Cambridge University Press, 2005. 328pp. Cloth $65.00/£45.00. ISBN: 0-521-84408-8. Paper $23.99/£19.99. ISBN: 0-521-605217-2.

Reviewed by Mark Tushnet, Georgetown University Law Center. E-mail: tushnet [at] law.georgetown.edu.

pp.56-58

Historian Bruce Laurie intervenes in a number of discussions among historians about the nature of the ante bellum antislavery movement. I stress that he is a historian talking primarily to historians, because much of the book has the feel of “inside baseball,” with Laurie assuming that his readers already know a great deal about the people and organizations involved in antislavery in Massachusetts. For example, Laurie devotes much attention to antislavery organizations in Massachusetts cities and towns other than Boston because, in his view, historians have paid too much attention to Bostonians. Laurie’s immersion in historians’ debates means that his book will be of limited value to non-specialists.

“Limited,” though – not “none.” For non-specialists, the book is a detailed case study of the ways in which reform movements manage the tension between purity on the issues that most animate their adherents, and the reality that making progress on those issues requires forming coalitions with others who are concerned more with other issues – and therefore requires compromise and at best incremental progress. “The great question that haunted abolitionists was whether to fight only for emancipation or for emancipation in conjunction with other reforms” (p.287). Laurie’s argument is “that political action was an effective strategy consistent with moral rectitude and not a naïve plunge into a smarmy world of compromise and accommodation” (p.5).

For Laurie, as for other students of antislavery, William Lloyd Garrison represents the purist concerned only with abolition, whose purism limited the direct effects of his advocacy. Indirectly, of course, Garrison like other purists inspired others who, more willing to compromise, did make progress toward abolition: “Garrison’s relentless agitation in the name of equal rights shook a nation that needed plenty of shaking. . . . But while Garrison may have awakened the conscience of some Northerners, he also led his followers into something of a moral dead end” (p.5). As the subtitle of his first chapter says, Laurie presents a story of the development of antislavery “from moral suasion to politics” (p.17). In the end, though, politics involved compromise and “difficult” alliances (p.288). As Laurie puts it, “eclectic reform . . . was a mixed blessing, a source of strength and weakness at once” (p.288).

The engine of the movement from purity to coalition, Laurie argues, was the involvement of the “middle ground of ordinary people” (p.24) in antislavery politics. Those people differed from Garrisonian purists because they cared about political issues in addition to antislavery. Laurie’s story is about the [*57] way in which political antislavery became increasingly influential as its adherents expanded their concerns to include first the rights of labor, and then women’s rights and temperance. The general impression Laurie leaves is that this expansion was relatively unproblematic for most of those involved; historians, he suggests, have overemphasized the difficulties of an expanded antislavery movement because of their focus on the Garrisonians and (not unrelated) on Bostonians.

This story is told by means of a quite detailed examination of the various antislavery political parties in Massachusetts. Again, the names of organizations and parties blurred more often than I was comfortable with as a non-specialist: First there were Garrisonians, then the Liberty Party, then the Free Soil Party, then the Know Nothings, and eventually (outside the period of Laurie’s main focus) the Republican Party. Because one can easily get lost in the details, I think – but only think – that the dynamic Laurie identifies is one in which an organization becomes a limited coalition, is unable to achieve much of any of its members’ goals, and disappears, to be replaced by another organization that takes its predecessor’s goals as its own and expands those goals to increase the coalition’s size. The Liberty Party was “not preoccupied with the national question of slavery, as nearly all historians assume. Though attentive to the national scene, they also figured prominently in the politics of civil rights and labor reform in Massachusetts” (p.83). Later Laurie again describes the “cross-fertilization of abolitionism and labor reform” (p.145). By the early 1850s, the end of the period Laurie examines, antislavery had become one of the package of issues around which the leading reform political organizations formed – perhaps the most important issue to many, but not the party’s only goal.

The main line of Laurie’s argument deals with the ways in which reformers put together their coalitions. There is, though, one striking point that political scientists will relish. At a crucial point the Liberty Party achieved real, though short-term, political success because of the peculiar voting rules in Massachusetts. The rule in elections in the 1840s was pure majority rule (50% plus 1), in multi-candidate elections without a runoff. If no candidate achieved a majority, the state legislature chose the governor. When reform candidates were reasonably attractive (or traditionalists particularly unattractive), they could throw the election into the legislature, where they could then engage in vote-trading to ensure that the new governor would support legislation advancing some of the reformers’ policies. Laurie devotes several pages to a discussion of the “remarkable and unexpected” (p.111) repeal in 1843 of Massachusetts’ ban on interracial marriage. He quotes a contemporary who attributed the enactment to several years of petitioning, which were said to have “produced great change in the public mind on this subject during the last twelvemonth” (p.111). Sensibly enough, though, Laurie points to the decision rule. Votes in the state’s lower house were decisive, the Senate having supported repeal for several years. And [*58] those votes were forthcoming because of a “deal . . . in which the Democrats agreed to get behind several civil rights measures in return for the Libertyites’ giving Democrats the governorship, the speakership of the House, and control of the Senate” (p.112). This anecdote might readily be used to illustrate more general propositions about the importance of decision rules for political success, and more specifically about the impact of plurality rather than majority decision rules.

I have tried to explain why non-specialists, and particularly scholars in fields other than history, might find Laurie’s work a useful case study. I should note, though, that there is much more in the book than I have discussed. One thread running through the work, and particularly prominent is the chapters dealing specifically with “the politics of race” (ch. 3) and “the limits of paternalism” (ch. 8), is an analysis of the ways in which antislavery’s advocates had paternalistic attitudes toward African Americans that, though not viciously racist, limited the degree to which they were willing to support initiatives aimed at reducing discrimination against African Americans even as they did work against some forms of discrimination.

In sum, non-specialists can mine Laurie’s work for examples of the way in which reform politics works. The nuggets are there, but it takes some digging.

© Copyright 2006 by the author, Mark Tushnet.

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NEGOTIATING PRIVACY: THE EUROPEAN UNION, THE UNITED STATES AND PERSONAL DATA PROTECTION

by Dorothee Heisenberg. Boulder, CO: Lynne Rienner Publishers, Inc., 2005. 211pp. Cloth. $49.95. ISBN: 1-58826-380-0.

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

pp.53-55

NEGOTIATING PRIVACY is a pithy (no lisp intended), little book. It is chock full of information concerning the contents of and procedures used for formulating the Organisation for Economic Co-operation and Development (OECD) Guidelines on the Protection of Privacy and Transborder Flows of Personal Data of 1980, the European Data Protection Directive of 1995, the US-EU Safe Harbor Agreement of 2000 and, very briefly, the US-EU Passenger Name Record Agreement of 2004. For those unfamiliar with these documents and their origins, this book provides a good introduction. The main theme of the book, however, is an analysis of the politics that led to the negotiation of the Safe Harbor Agreement and an attempt to answer two questions: Why did the US and the EU disagree on privacy protection? Why, if the Safe Harbor Agreement seems to favor the US position of lesser privacy protection for personal data and a self-regulatory approach, may it be said that the EU is still the global leader in setting data protection standards? Dorothee Heisenberg does answer both of these questions, but, as I shall try to explain, the answers seem to gloss over deeper questions and are not fully convincing.

Both the US and the major EU countries had subscribed to the voluntary basic personal data protection principles of the OECD Guidelines which included many of the elements of the EU Directive to which US businesses and the US Safe Harbor negotiators objected. These common elements were the requirements that personal data held by a company be made available to the data subject, that only the minimum amounts of data, necessary for the stated purpose they were collected, be held, and that data flows to other countries or companies not compliant with the guidelines be prohibited. In any case, few US companies had endorsed the principles despite urging by the Reagan Administration.

Heisenberg notes the fundamental differences in US and EU approaches to data protection. First, the EU Directive, reflecting national practices in Western European countries, particularly France and Germany, mandates a comprehensive national regulatory scheme enforced by a national data protection commissioner. US data protection is piecemeal. Where regulation exists, there are differences between the handling of public and private sectors, state and federal regimes, and particular industries. Each company or agency is charged with enforcing its own guidelines. The EU Directive focuses on direct regulation of the collection and use of personal data, prohibiting “excess” data collection and restricting use to the original and stated [*54] purposes of the collection. Notification to the national authority and to the data subject of the collection and use of the data are required at several stages. The US framework assumes that most data collection and use is both acceptable and beneficial, that guidelines should be primarily voluntary, and that regulation should only address documented instances of abuse. Enforcement in the US depends on the initiation of action by a data subject rather than a government official.

Heisenberg looks at the political processes and effective interests by which the EU Directive and later the EU bargaining position on Safe Harbor were formulated and compares these to each other and to the formulation of the US bargaining position on Safe Harbor. She looks at several public opinion polls from the US and from Europe and concludes that the US and European publics similarly viewed privacy protection as an important government function and therefore that there were no fundamental cultural or historical reasons for the difference in the approaches to the protection of personal data. Rather, the difference could be attributed to the participation of different interest groups. The EU Directive was primarily formulated by a Working Party of privacy experts and particularly the national Data Protection Commissioners in a process that did not include business interest groups because they were already subject to extensive data protection regulation in member countries and because many had not yet recognized the profitable transfer of data made possible by the Internet. The US position on data protection was primarily formulated by business and technology interests under the guidance of the Department of Commerce. By the time of the Safe Harbor negotiations, however, the EU Commission, for whom the Working Party served only in a marginal advisory role, was more attentive to the demands of European business interests anxious to avoid stopping the lucrative flow of data between the EU and the US.

Here it seems to me that Heisenberg’s conclusion indicates a failure to probe the differences behind the interest group line-ups. There are fundamental historical and cultural reasons behind these differences, particularly if one looks at political and legal culture, not simply public opinion. Western European countries, such as France and Germany, which incidentally have no direct equivalent of the English word ‘privacy,’ have regulated the processing of personal data by both public and private entities under the rubrics of ‘human dignity’ and ‘liberty’ since the 1970s and these efforts have been furthered by the courts. The French have had a national regulatory commission in place since 1978. Secondly, US political culture seems to be more dependent on the financial contributions of business interests, and therefore more responsive to these interests, than the Western European political culture of parliamentary systems, multiple parties and limited election periods. In fact just as the EU Data Protection Directive was being developed, the Republicans having recently captured the Congress were solidifying their links to K Street lobbyists. Ira Magaziner, who helped to [*55] formulate the Clinton administration self-regulation position for the US Safe Harbor negotiations, had earlier experienced the power of economic interests who opposed his efforts at developing a regulatory scheme for health care.

Heisenberg concludes that, despite the Safe Harbor Agreement allowing for individual US company compliance and self-certification with privacy standards less strict than the EU Directive requirements, the EU is still the leader of a global privacy regime. Heisenberg suggests that no other countries have opted for a self-regulatory Safe Harbor type system. Those countries that have substantial commerce with the EU have moved forward on national regulation, centrally administered that reflects EU standards. But in reaching this conclusion, she seems to gloss over her own findings that few non-member countries have achieved adequacy certifications from the EU, yet data flows have not been halted. The Working Party and the European Parliament, rather than the EU Commission, have been strong advocates of maintaining data protection standards by stopping data flows to non-complying countries. Even among EU member states, however, national legislation fully embodying the Directive’s standards has been slow in coming. By mid-2004 only Germany, the Netherlands, Belgium, Ireland, Luxembourg and France had fully compliant legislation. Throwing further doubt on Heisenberg’s leadership conclusion is the fact that European airlines, despite the EU Commission’s warnings of possible violation of the data protection Directive, have generally turned over airline passenger information to the US government.

In sum, this book is valuable for its descriptions of the various data protection regimes and their origins. It also has an extensive and useful bibliography. It fails to provide a clear methodology, an insightful theoretical perspective or uncontradicted conclusions.

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

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THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES

by Eyal Benvenisti and Moshe Hirsch (eds). NY: Cambridge University Press, 2005. 330pp. Cloth. £55.00/$95.00. ISBN: 0521835542.

Reviewed by Sanford R. Silverburg, Department of Political Science, Catawba College. Email: ssilver [at] catawba.edu.

pp.50-52

International law, traditionally (which means historically) has had to deal with instruments that would aid in the creation of various forms of global order and structure. This noble goal has most often been directed towards its political obverse—armed and violent conflict. In the contemporary political world, the most visible shift in importance from inter-state relations to global trading patterns has led observers and scholars to develop perspectives on how international law can generally affect cooperative behavior among political entities.

The book under review is a compilation of papers, edited by Eyal Benvenisti and Moshe Hirsch, that were presented at a conference held at the Hebrew University of Jerusalem Faculty of Law in June 2001. The ultimate aim of the diverse collection is to examine the influence of international legal norms and institutions on state behavior in the conduct of policies that control trade and the environment. The analysis generally proceeds along two dimensions: 1) the incentive of states to abide by customary international law, soft law, and mutually agreed multilateral conventions; and 2) various authors look at specific case studies with unique issues in international trade and international environmental protection. There is an overall theoretical starting point that the two disciplines, international relations and international law, are related in the ways scholars from both fields approach problems on the globe; in fact, the disciplines are shown to be interrelated. In this regard, the literature is burgeoning with contributions from Scott (2004), Boyle (1985), and Reus-Smit (2004) pointing to a nexus between hard law and soft law, and legalization versus judicialization against realism, institutionalism, and liberalism. There are also, it should be noted, signs of interest among political scientists to deal with treaty compliance (von Stein, 2005), despite differences in methodological approaches (Simmons and Hopkins, 2005).

The understanding here is that international norms and institutions in some important way determine the orientation of states, which ultimately leads them to international cooperation, all of which is better understood through theories of international relations. Hence the book begins with an overview of three of the more prominent and contemporary theories of international relations: realism, institutionalism, and liberalism. With realism, the international legal counterpart is the territorial state. Institutionalism is projected onto the UN Charter. The third paradigmatic approach, liberalism, is made emblematic by individuals and [*51] interest groups, both of which operate under the aegis of states. Central to making the connection between international relations and international law is the role of “power” which is highlighted throughout the various contributions.

Kenneth Abbott and Duncan Snidal examine the pathways states take to reach varying levels of cooperation through conventions, multilateral agreements, and legalizing cooperative regimes. Eyal Benvenisti reviews the relationship of efficient remedies to the use of custom as a rule to determine judgment. He studies the role of international judges and arbitrators in establishing guiding norms for cooperative behavior. An essay by George Downs and Michael Jones reflects upon what rational choice theorists have long argued, that agreements – in this case treaties – are sustained best when the parties can expect the terms will be respected to the extent that “respect” is an acceptable characteristic of a signatory’s goals. There is a strong relationship between levels of political development and the ascription of respect to the state. Evidence is also presented that defection from agreements is frequently related to the importance of the agreement to a party that defects. In an essay that seems to present the obvious, to wit: “[t]he international system is changing” (p.136), substantial evidence is presented to ponder its credulity since states remain generally in tact. Reviewing agreements on human rights and arms control, the environment, and trade, however, do allow us to speculate on potential permutations.

Moshe Hirsch advances a theoretical perspective regarding why states comply with international norms when the global trend toward globalization would expect something different. The approach to the study of norm compliance matches, in some manner, the approach to globalization in terms of supporters and detractors. He notes that, although globalization is a unique phenomenon, it is in reality truly a subject that confers benefits upon the global North. Compliance to international norms, banally speaking, is in the theoros’ eyes, a paradigmatic approach. Hirsch makes a relational comparison and, perhaps surprising to none, suggests that such analyses “do not lead to a single conclusion” (p.192).

What is the record of norm compliance in Latin America? Here Arie Kacowicz reviews the process of arbitration as it is employed in territorial disputes in the southern hemisphere. Two case studies are reviewed: a border question between Ecuador and Peru, the Oriente/Marañon question and, perhaps, more widely known, the Beagle Channel question between Argentina and Chile. Kacowicz observes that Latin American countries, in general, are predisposed more to political or diplomatic protocol than formal legalistic processes. It is empirically concluded that while states might comply with international norms, pacta sunt servanda in this case, they simultaneously do not necessarily abide by international obligations, admittedly a nuanced version of inter-state compliance.

In an essay directed toward international trade, the authors timidly admit that [*52] “[i]nternational trade agreements often stem from the economic gains that leaders expect to derive from cooperation” (p.217), but contends that domestic political gains also serve as a basis for acceding to international agreements.

As the global mood changes its emphasis away from raw power politics and territorial expansion to universal human rights, Petros Mavroides draws a connection between the WTO and developing countries. His approach is to apply nondiscriminatory trade practices to states whose human rights policies might be derelict since it is in the purview of WTO members states to abide by the rule of jus cogens. The author notes that the two dimensions of interest, increased trade with institutionalized framework of WTO-created trade relationships and a commensurate demand for human rights compliance, but finds no necessary connection.

The intent of the editors is certainly laudable: show the relationship between theories of two related academic disciplines and employ a context to introduce the nexus. The problem is one that is embedded in any edited work, allowing some authors to explore their individual interests, rather than focusing on a central thesis. Nevertheless, the substance of the effort can only enhance the body of testable hypotheses for both quantitative and qualitative analysis in either discipline, and bring them closer together for further future study.

REFERENCES:
Boyle, Francis Anthony. 1985. WORLD POLITICS AND INTERNATIONAL LAW. Durham, NC: Duke University Press.

Reus-Smit, Christian (ed.). 2004. THE POLITICS OF INTERNATIONAL LAW. NY: Cambridge University Press.

Scott, Shirley V. 2004. INTERNATIONAL LAW IN WORLD POLITICS. Boulder, CO: Lynne Rienner.

Simmons, Beth A.. and Daniel J. Hopkins. (2005). “The Constraining Powers of International Treaties.” AMERICAN POLITICAL SCIENCE REVIEW. 99
(November): 623-631.

Stein Jana von. (2005). “Do Treaties Constrain or Screen?” AMERICAN POLITICAL SCIENCE REVIEW. 99 (November): 611-622.

© Copyright 2006 by the author, Sanford R. Silverburg.

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A FAIR HEARING? ETHNIC MINORITIES IN THE CRIMINAL COURTS

By Stephen Shute, Roger Hood, and Florence Seemungal. Devon, UK and Portland, OR: Willan Publishing, 2005. 232pp. Cloth. £35.00/$64.95. ISBN: 1-84392-084-0.

Reviewed by Mary Atwell, Department of Criminal Justice, Radford University. Email: matwell [at] radford.edu

pp.48-49

It is most likely that the audience for this book in the United States will be limited. Although the subject is significant and the authors are scholars with fine credentials, the presentation of the material in the driest of monographic styles and the cost of the slim volume will probably restrict its appeal. Nonetheless, there are some points that may be of interest to the readers of the LAW AND POLITICS BOOK REVIEW.

Roger Hood, one of the researchers responsible for this work, was the author of an important report, RACE AND SENTENCING, produced in 1992. That study, carried out at the behest of the official Committee on Racial Equality, examined disparities in sentencing and had an influence on the understanding of racial bias in the criminal justice system in Great Britain. A FAIR HEARING is a follow up report that focuses on impressions about the role of race in the courts. To identify those perceptions, Hood and his colleagues interviewed more than one thousand subjects—defendants, attorneys, judges, magistrates, witnesses, and other court personnel—about whether they experienced racial bias or whether they believed such prejudice existed. The authors make a good, though brief, argument that perceptions of bias in the criminal justice system undermine the system’s effectiveness. Those who experience or believe that the institutions of justice are unfair are more likely to withdraw their support from them and less likely to feel they have the responsibility to obey or cooperate with those systems. This skepticism is even more common if the incidents of bias follow a history of prejudice and discrimination. Thus, a study of perceptions of racial injustice is justified as a way to raise public awareness and lead to necessary reforms, just as the examination of disparate sentencing did.

One early chapter is devoted to the research design and to some of the difficulties that might interfere with reaching the information sought by the study. The authors explained why they included a sample of white people along with their interviews with members of ethnic minority groups. If both whites and ethnic minorities shared perceptions of unfairness regarding the outcomes of their cases, the cause quite possibly was something other than racial bias. It seems reasonable that social and economic class would influence both outcomes and perceptions in the criminal justice system. Most American researchers tend to see race and class as intrinsically related factors. Oddly enough, the authors of A FAIR HEARING barely mention class, nor do they explain its omission from their consideration. Another thought-provoking issue raised, but just barely, is [*49] whether participants’ perceptions were concerned with procedural fairness (if they were treated with respect and whether they believed their rights were protected) or with distributive justice (whether minorities believed they were treated comparably with other defendants). The authors note these different meanings of justice, but when quoting from their respondents, they mix the two definitions together and provide no discussion of the possible contradictions between equality and fairness. To put the problem simply, often defendants are asking for cultural sensitivity while magistrates claim they practice equality by treating all who come before them “exactly the same.” Sorting out these theoretical issues that are closely related to the research questions could have been given more attention if the authors had provided a substantial review of the literature and a more thorough discussion of their findings. Although the governmental bodies that supported this work might not have required those features, a general audience of scholars would find them extremely useful.

Shute, Hood, and Seemungal conclude that the percentage of ethnic minorities who believe they had experienced racial bias in the courts was lower than expected. Judges, attorneys, and other court personnel attributed those generally positive results to a “cultural shift” in the last decade that included initiatives to make the courts more sensitive to a multi-cultural society. The final chapter addresses the future—ongoing efforts to reduce the reality and perceptions of racial discrimination in the judiciary. Suggestions include more minorities at all levels of court personnel, less formality, the use of laypersons’ language instead of “legalese,” more interpreters, and more individualized sentences. The book would have benefited from a more extensive discussion of the implications of those changes—for example, would more discretion in sentencing open the door to more prejudice? But clearly the authors’ purpose was not to provide exhaustive, or even extensive, discussions of the implications of their research. Although they analyzed their quantitative data, they simply laid out their subjects’ verbal responses with minimal comment. Any real discussion of the meaning of their work for actual policy development has been left to others.

The book includes the sixteen page interview schedule used in questioning defendants. It could serve as a model for students developing a research instrument. The questions used to interview judges, magistrates, barristers, solicitors, witnesses, and other court personnel are unaccountably omitted.

In Britain, as in the United States, racial disparities may well be the most difficult and the most critical issue facing the criminal justice system. All attempts to address those problems and to formulate policies that will reduce discrimination are valuable. But to be useful to a wider audience, Shute, Hood, and Seemungal should have gone beyond merely reporting their results and provided a larger intellectual context for their work.

© Copyright 2006 by the author, Mary Atwell.

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HATE CRIME

by Nathan Hall. Devon, UK and Portland, OR: Willan Publishing, 2005. 298pp. Hardback. £40.00/$59.95. ISBN: 1-84392-131-6. Paper £18.99/$29.50. ISBN: 1-84392-130-8.

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

pp.42-47

It is by now a truism that the politics of crime and punishment is easily overwhelmed by what might be called the pathology of anecdotal evidence, by which I mean the eagerness of legislators – aided and abetted by a twenty-four hour news cycle and their counterparts in the executive branch – to allow penal doctrine and policy to be driven by hasty causal judgments drawn on the basis of insufficient or misunderstood empirical data. While this piece of conventional wisdom admittedly takes on the aura of a self-fulfilling prophesy, there is little room for doubt that the occurrence of even a single shocking episode of criminal violence at the wrong time and place is capable of influencing the outcome of an election. As William Stuntz (2001) has thoughtfully argued, popularly elected officials of all ideological stripes thus have strong incentives to react decisively to such incidents, most often by placing increasingly harsh standards of punishment at the disposal of prosecutors, in an effort to inoculate themselves against any insinuation of being “soft on crime,” which apparently constitutes one of the mortal sins of modern democratic politics.

If this is an accurate depiction of the politics of crime generally, then it is especially true in the case of “hate crime” legislation, which is to an unusual degree susceptible to the anecdotal pathogen. To be sure, any morally decent person was moved by a sense of outrage when it was reported that three avowed white racists in Texas shackled a defenseless black man to the bumper of their truck with a chain and dragged him several miles to his death, or when a young gay man in Wyoming was savagely beaten, tied to a post, and left for dead by two men towards whom he allegedly had made a flirtatious overture, to cite two especially prominent examples of the phenomenon. But despite our understandable disgust at these sorts of crimes, they can hardly come as a complete surprise, since the occurrence of antisocial behavior prompted by spiteful motivations and myopic cultural prejudices – like its more virulent cousins, genocide and warfare – must be as old as the history of civilization itself. Nevertheless, such widely publicized outbursts of bigotry are nowadays met by urgent demands for the passage of stricter sentencing laws, without much thought being given to the true scope and dimensions of the problem or the unintended consequences of the putative solution.

From this perspective, Nathan Hall’s new monograph, HATE CRIME, a wide-ranging survey of the latest social science research on the subject from a predominately British perspective, is a refreshing exception to the partisan tone that is, unfortunately, all too common in [*43] the literature. Though Hall makes it clear that he remains, on balance, a supporter of contemporary efforts to combat the incidence of bias motivated crime (pp.237-38), he frankly acknowledges that “our apparently unquestioning efforts to combat hatred are in fact based on questionable [empirical] foundations” (p.xix) and are “fraught with moral and practical difficulties” (p.148). As a result, he says, we find ourselves in the position of “attempting to respond to a threat posed by an apparently growing social problem,” but without “a thorough consideration or understanding of exactly what we are trying to tackle” (p.233). He thus suggests – correctly in my view – that if we hope to mount an intellectually credible defense of hate crime legislation, then we must first grapple with a series of seemingly intractable conceptual, empirical and normative issues, which set the parameters within which the study proceeds (p.xvi).

To his credit, Hall pursues this bracing agenda in an accessible, undogmatic and critical style, which undoubtedly owes much to the pedagogical origins of the book. A professor of criminology at the University of Portsmouth, Hall explains that his decision to undertake the project was prompted by the persistent complaints of the students in his graduate seminar on hate crime about the lack of a suitable textbook on the subject (p.xii). Consistent with this purpose, he states that the material covered in the book is not intended to provide the reader with a definitive set of prescriptions, which do not in any event exist, but rather to “present the opposing viewpoints that . . . reflect the complexity of the hate crime ‘problem’ and the difficulties we face in determining our responses to it . . . so as to allow the reader to make up their own mind” (pp.xix-xx).

These pedagogical concerns likewise explain the ambitious scope of the book, which covers a broad array of relevant topics, including: the conceptual difficulties of defining prejudice and determining the appropriate scope of hate crime laws (pp.1-37); a brief historical survey of bias motivated violence (pp.38-54); the complexities of measuring the nature and social implications of hate crime victimization (pp.55-71); the largely neglected problem of understanding the sociological and psychological profile of hate crime offenders (pp.72-112); a comparative survey of the current state of legislative efforts to address the problem in the U.S. and England, including the theoretical and moral debate about, and the legal challenges to, the legitimacy of existing hate crime statutes (pp.113-49); and, finally, the challenges involved in the policing of hate crime, again in a comparative perspective (pp.150-232), which is Hall’s particular area of scholarly expertise.

Though I cannot in the space of this review discuss each of these complex issues in any detail, it will hopefully suffice to highlight two persistent themes that recur throughout the literature. Perhaps most importantly, there is the vexing threshold question of defining the phenomenon of hate crime in the first place. For example, Hall [*44] notes that in 2001, the population of the U.S. was nearly six times greater than the combined population of England and Wales, whereas according to official tallies, England and Wales experienced more than 12 times the number of racially motivated hate-crime incidents (though not necessarily prosecutable offenses) than the entire U.S. (p.18). The following year, the 43 police organizations in England and Wales recorded more than 31,000 racially motivated offenses – most of which involved an allegation of “harassment” – whereas more than 12,000 police organizations in the U.S. recorded only about 4,400 racially motivated offenses during the same time period (pp.57-59).

Something must be amiss here, since it cannot be plausibly maintained that Britain is a vastly more racist society than the U.S. Instead, one suspects that the glaring discrepancy in these figures reflects a difference in the definition of racial intolerance, at least for purposes of collecting official crime statistics. And so it is: in Britain, the definition of a hate crime incident is exceedingly flexible and depends largely on the subjective perception of the potential victim, such that “anyone can be a victim of hate crime if they believe themselves to be so” (p.11). In the U.S., by contrast, the comparatively meager nationwide statistics compiled by the FBI reflect both the specific categories of prejudice and types of offense delineated in the federal reporting statute (p.5). The empirical terrain is further complicated by the fact that state laws and reporting requirements also lack any semblance of uniformity, which means that “almost every U.S. state has a different legal definition of hate crime” (pp.5, 118-20). Nor is this simply a matter of bureaucratic incompetence, since Hall points out that there is no more agreement among scholars than there is among legislators and police officials about how hate crime is or should be defined (pp.1-4, 132-39).

Given the striking lack of academic and professional consensus on this fundamental issue, it is very difficult, and perhaps impossible, to get an accurate handle on the incidence of bias-motivated crimes across jurisdictional, much less national, boundaries. Hall therefore concludes that while we have good reasons to believe that prejudices of various sorts are a pervasive – and probably even a necessary – feature of normal psychological experience (pp.23-34), “when we talk about hate crime, we could be talking about a number of very different things depending on where we happen to be” (p.6). As a consequence, he states that we simply have “no idea how much hate crime there really is” (p.71).

This is a telling conclusion, because it suggests that the problem cuts deeper than a mere methodological difficulty with the collection of preexisting raw data. To the contrary, it implies that we tend to find the data we are looking for and that, ironically, any working conception of hate crime is liable to be as inescapably parochial as the assorted prejudices present to varying degrees in each of us, ultimately no more rationally justified than a preference for fish and chips and warm beer. But if this is true, then the distinction between the typical hate crime and its ordinary counterpart [*45] would appear to be an arbitrary construct, which arguably exposes the tenuous normative justification of the entire enterprise. This explains, I think, the sneaking suspicion among many civil libertarians that the movement has less to do with protecting vulnerable minority communities from actual harm than with the dubious use of criminal sanctions in, as Hall puts it, “a symbolic attempt to repair the damage of the past” (p.44).

Apart from the burden placed on freedom of expression, the critics argue, such a strategy is unlikely to succeed in any event. For as Andrew Sullivan (1999) has acutely observed, unless we were prepared to stipulate that the dominant social group (i.e., heterosexual white males) is excluded from the class of possible victims, then every crime is potentially a hate crime and “[a]ll we will have done is widened the search for possible bigotry, ratcheted up the sentences for everyone and filled the jails further.” In this regard, Hall reports that, according to the official FBI statistics, blacks are three times more likely to have committed a hate crime than whites (p.236), which we may safely assume was not the intended result.
In response, the advocates of hate crime legislation maintain that this sets the justificatory bar too high. In other words, even if there is no universally valid conception of hate crime that rationally compels the adoption of such a policy, the argument goes, it might still have sufficient democratic pedigree to constitute a legitimate response to certain forms of bigotry among the members of a political community. This is a fair point, to be sure, and if we confine the analysis to a single jurisdiction, it is certainly possible to carve out – by legal fiat if necessary – a sociologically distinct set of bias motivated offenses. As far as the U.S. is concerned, for example, Hall points out that the Supreme Court famously held in WISCONSIN v. MITCHELL (1993) that a statute that enhances the penalty for selecting the victim on the basis of his or her race does not impermissibly single out for harsher treatment the expression of officially disfavored ideas per se and therefore withstands scrutiny under the First Amendment (pp.140-43).

Even so, we would still have to confront the thorny question of why this type of conduct is deserving of more severe punishment than normal crimes. In sum, the justification for such differential treatment rests on the assertion that a hate motivated crime is worse, and hence deserving of more punishment, because it inflicts (or risks) greater social costs in terms of the psychological impact on victims and potential victims (pp.66-69, 132-34). Though Hall allows that this area of research is also empirically underdeveloped (p.66), the claim does have a strong intuitive appeal, and is arguably true whenever an offender acts with the specific intent to inflict serious emotional harm on a particular victim or to harass and intimidate an identifiable group of which the victim is a member. This explains the distinction between an ordinary act of vandalism and burning a cross on a black person’s front yard or painting a swastika on a synagogue. Nor would such a regime constitute a sharp departure from established Anglo-American [*46] practices, since it traditionally has been within the discretion of a sentencing judge to tailor the amount of deserved punishment, all morally relevant facts being considered, including that the defendant sought to victimize an especially vulnerable person or cause widespread fear.

The extent to which this rationale correlates seamlessly with group affiliation is a separate question, however. The basic problem with victim selection statutes of the sort approved in MITCHELL is that, by focusing on the group affiliation of the victim rather than the harm intended by the defendant, they are a singularly ineffective vehicle for isolating those crimes, and only those crimes, that genuinely deserve harsher treatment. Consider the following two cases. On the one hand, the defendant in MITCHELL was a young black man from Kenosha, Wisconsin, who was convicted of assaulting a randomly chosen a white person, with the result that his maximum sentence was increased substantially, from two to seven years imprisonment. But while the defendant’s motivation clearly brought his conduct within the literal terms of the statute, as Francis Kamm (1993) has argued, it strains credulity to believe that the victim was singled out because of his perceived membership in a despised and vulnerable group, and still less that a run-of-the-mill assault, however morally offensive, posed an in terrorem threat to the white majority in Wisconsin. Thus, apart from the symbolic value of castigating the defendant’s bad attitude, the social justification for more than tripling the range of his punitive exposure is not easily discernable.

On the other hand, it is quite easy to imagine a crime that is motivated by the crassest sort of racial bigotry, but that escapes the terms of the statute altogether. Suppose a white supremacist targets a white civil rights worker for a similar assault, not out of any racial animosity toward the victim herself, but to discourage her from dating a black man or participating in an inner-city voter registration campaign. Because the victim was not selected on the basis of her race, this offense would not constitute a hate crime under the statute approved in MITCHELL, notwithstanding the defendant’s transparently racist intentions and the potentially chilling effect of the crime. If it happened in Kenosha, all else equal, he would be facing the prospect of not more than two years in jail.

Whether this leaves the proverbial glass half full or half empty is a judgment about which reasonable minds may perhaps differ, but it is by no means clear that a legislative policy that mandates harsher punishment for the expression of obnoxious viewpoints, even if indirectly, will predictably lead to a more just and humane social order. The chief virtue of Hall’s book, I suggest, is that it forces us to reconsider the efficacy of invoking criminal sanctions in an effort to resolve such deep-seated cultural divisions.

REFERENCES:
Kamm, Francis M. 1993. “A Philosophical Inquiry into Penalty Enhancement.” 1992/1993 ANNUAL SURVEY OF AMERICAN LAW 629-36. [*47]

Stuntz, William J. 2001. “The Pathological Politics of Criminal Law.” 100 MICHIGAN LAW REVIEW 505-600.

Sullivan, Andrew. 1999. “What’s So Bad About Hate?” THE NEW YORK TIMES MAGAZINE, Sept. 26, 1999, 12 pgs., available at http://andrewsullivan.com/print.php?artnum=19990926 .

CASE REFERENCE:
WISCONSIN v. MITCHELL, 508 U.S. 476 (1993).

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

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PROSECUTING INTERNATIONAL CRIMES: SELECTIVITY AND THE INTERNATIONAL CRIMINAL REGIME

by Robert Cryer. Cambridge: Cambridge University Press, 2005. 392pp. Hardback. £60.00/$110.00. ISBN: 0512824745. Also available in Adobe eBook format. $88.00. ISBN: 0511113811.

Reviewed by Caryl Lynn Segal, Department of Criminology and Criminal Justice, University of Texas at Arlington. Email: csegal [at] gmail.com

pp.38-41

International law practitioners are the primary audience for Robert Cryer’s PROSECUTING INTERNATIONAL CRIMES. Case law citations are scant, and its use is probably limited to research projects. Political scientists whose area of expertise is Eastern Europe or Africa will find a plethora of useful data about the prosecution of crimes committed in Rwanda and the former Yugoslavia. The account of problems involved with international criminal law and its prosecution is well-written and exceptionally detailed.

Cryer explores the establishment of the adjudicatory tribunals set up to address crimes committed by regimes in Rwanda and the former Yugoslavia and how jurisdiction was recognized under existing treaties dealing with these international criminal violations. He extensively traces the history of international criminal prosecution and justice.

International crime, loosely defined, finds its roots in the 5th and 6th centuries BCE when empires acted upon the premise that there should be restraint on warfare. Whether one could truly classify the actions taken under this general rubric as international law is open to scholarly debate.

A papyrus that dates to c.1000 BCE involves a dispute “over the authority to prosecute actions by foreigners on a foreign ship” (p.11). Disciples of Confucius spoke of criminality in relation to unjust wars. The Greeks would “prosecute” and then execute Spartans for violations of the Greek law of war. In Ancient India, a process that might today be considered a trial was used to find those who violated the rules to be outcasts and to strip them of privileges (p.12).

By the 6th century, Romans had promulgated Articles of War that included punishment for violations. The Koran contains a restraint on waging war with commanders, and in the Christian world, there were also penitential books and decrees as early as the 9th century CE.

Decrees were issued after the Battle of Soissons and Hastings that applied to both sides, thus initiating a form of “victor’s justice,” which, to a degree, continues today.

In the 14th century one finds an analogy to modern international criminal law in “the enforcement of the laws of war through the laws of arms, or jus militare.” In 1872 the first of many scholars, Gustav Moynier, proposed an international criminal court, based [*39] upon the still prevalent belief that national judges might not be independent or impartial. The proposed statute, which was never ratified, raised the still unanswered question of who defines relevant law.

Commissions were mandated after World War I to investigate responsibility for starting the war. Among the early proposals was the notion of an Allied High Tribunal, but eventually a compromise was reached: Germany would try suspects nationally in Leipzig. Two “famous” trials did take place in 1922. The legacy of Leipzig, according to Cryer, is “the fear that a State is unlikely to engage in active prosecution of its own nationals before its own courts, and that therefore international supervision or proceedings are needed, or prosecution before another State’s courts” (p.35) must occur.

The Moscow Declaration of 1943 was preceded by a United Nations War Crimes Commission to investigate war crimes and advise on procedural rules for punishment. Out of this would evolve the Nuremberg International Military Tribunal (IMT), and the trials that followed represent the first practice of modern international law.

The genocides in Rwanda and the former Yugoslavia prompted the United Nations to take action to bring those responsible to trial. The International Criminal Tribunal for the Former Yugoslavia and, shortly thereafter, the International Criminal Tribunal for Rwanda were established, each with unique features.

The genesis of the International Criminal Court was a request from a coalition of sixteen Caribbean and Latin American nations to enforce national laws based on the 1988 Vienna Convention Against the Illicit Trafficking in Narcotic Drugs and Psychotropic Substances (p.57). These nations were seeking an independent forum as a means to address these crimes, in light of the significant challenges to their own judicial systems presented by the power and influence of rich drug barons.

Cryer observes that selective enforcement has been and remains a problem, as does the cloud of “victor’s justice.” Although there has been a movement towards international enforcement, Cryer notes that “there is a risk of losing substantive justice when we revert to individual States because often it becomes contingent on the willingness of States to fulfil (sp), among other things, their international obligation to punish international crimes” (p.73).

Two issues must be addressed: the inherent right to assert territorial jurisdiction that remains with a sovereign nation and the appropriateness of prosecuting a crime in the place, or near the place, where it occurred. Both present dilemmas. The former Yugoslavian and Rwandan tribunals addressed these issues differently, and the experiences of both are reflected in the Rome Statute.

The Rome Statute, adopted in 2002, attempts to address the multitude of problems that arise in the prosecution of international crimes. The Statute [*40] recognized many unresolved problems and created a “full-fledged regime of international criminal law enforcement” (p.143), involving both national courts and the ICC itself. In addition to the formulation of substantive rules, appropriate reactions to violations are also covered. Procedures for the Prosecutor, in addition to rules for national courts, were also established.

After the treaty establishing the International Criminal Court was drafted, another unresolved issue arose: the right of a nation to try its own accused citizens. Indeed, this is the primary reason why the United States has not signed the treaty.

A major unavoidable failure is that the ICC is a treaty-based court, with the obvious problem that decisions cannot be imposed on non-signatories. Cryer points out that one solution would involve having the Statute ratified as part of the UN Charter; alternatively the Security Council might impose duties upon all member nations. Without the occurrence of one or the other, the States subject to duties may well remain fewer than those subject under the UN Tribunals’ Statutes.

Quoting Mahnoush Arsanjani (p.145), Cryer explains that the ICC was not intended to replace national courts but rather to act when a national court does not do so. Thus a balancing of interest occurs that accepts criminal law as falling under the sovereignty of a State but seeks prosecution of international crime in the absence of the State’s action. The result is a mixture of deference to national jurisdiction, with challenges being an ongoing possibility. The ICC may not assume jurisdiction in a case unless the State is unable or unwilling to undertake the prosecution.

The statute enumerates the meaning of a State’s unwillingness or inability to prosecute. In reality taking over jurisdiction from a State presents many hurdles, some of which may be insurmountable. State co-operation is necessary to enable a successful prosecution. Common law States will still seek the establishment of a prima facie case before extradition, and Civil law States present system-specific prohibitions on surrendering nationals. In addition, evidence gathering, questioning of suspects, appearance of witnesses, subpoenaing and assessing documents, and selective enforcement, represent but a few of the multitude of challenges.

In his exploration, Cryer illustrates a primary difficulty the international tribunal faces: “when an enforcement agency or officer has discretional power to do nothing about a case in which enforcement would be clearly justified, the result is a power of selective enforcement. Such power goes to selection of parties against whom the law is enforced. Selective enforcement may also mean selection of the law that will be enforced” (p. 233, quoting Kenneth Kulp Davis).

The Rome Statute attempts to deal with this issue by defining crimes, in many instances, “narrower than customary international law permits, or in some cases requires” (p 287). Only in the instance of “persecutive” crimes against [*41] humanity does the Statute clearly establish what the law is. Rather than allow development of law by interpretation, the idea is to have the court “concern itself with those atrocities which are universally recognized as wrongful and condemned” (p.237).

Comparative criminal law has long recognized that each society defines crime according its own standards and values. The term “terrorist” provides an example of the complexity. The thesaurus in Microsoft Word 2003 lists radical, fanatic, activist, revolutionary, and rebel as synonyms. But by 2006 the international community appears to have agreed that the term should apply to those who indiscriminately target civilians and whose acts are understood to be “against humanity.”

The effectiveness of the ICC remains to be determined and may well be hampered by having fewer than half the members of the United Nations as signatories. But the fact that such a tribunal was established is in itself a major accomplishment and hopefully has brought the world community closer to prosecuting international crime, although a number of obstacles remain.

© Copyright 2006 by the author, Caryl Lynn Segal.

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IMMIGRANTS AT THE MARGINS: LAW, RACE, AND EXCLUSION IN SOUTHERN EUROPE

by Kitty Calavita. New York: Cambridge University Press, 2005. 278 pp. Paperback. $39.99/£22.99 ISBN: 0-521-60912-7. Hardback. $90.00/£50.00. ISBN: 0-512-84663-3.

Reviewed by Marc-Georges Pufong, Department of Political Science, Valdosta State University, Valdosta, Georgia. Email: mpufong [at] valdosta.edu.

pp.31-37

Among several contending issues in the ongoing European economic integration, that include Spain, Italy and 23 other EU Member States, immigration certainly is at the centerfold. According to one observer, “migration is a latter-day Pandora’s Box in the social and economic issues it raises within EU” (Vatahov 2002). To others, international immigration and its consequences rank among the greatest problems of contemporary Europe. Accordingly, the nature and magnitude of migration problems causes the development of a common migration policy to seem indispensable (see EU Commission Communication of 3.12.2002). For example, pursuant the outline anticipated in the Amsterdam Treaty (1999), the priorities developed and set out by the Tampere European Council (1999), an EU policy on migration and asylum has gradually been put into effect. Several components of this comprehensive EU policy are currently in force as enacted by the European Parliament and the Council.

In an anticipatory attempt to size the readiness of the then 10 EU Candidate Countries, a conference held in Slovenia on October 28, 2002, tackled the problem of illegal migration as well as migration related crimes in the South East region of the European Union. In attendance at that meeting were Ministers of Interior from Austria, Albania, Bulgaria, Bosnia and Herzegovina, Hungary, Macedonia, Romania, and Slovenia, as well as representatives of the Danish EU Presidency and the European Commission whose presence illuminated the seriousness of immigration concerns for the European Union. In the end, a joint declaration on European security standards was adopted for implementation in the South East European Region. Consistent with the Tempere European Council policy goals, the declaration committed signatory countries to joint immigration measures. The goal is to prevent and combat illegal migration and related criminal activities associated with immigration by establishing common standards and policies, harmonizing legislation, visa issues, policies for removal and readmission of aliens, as well as judicial and police co-operation (Vatahov 2002).

Thus, illegal immigration within the context of an enlarged EU is a big concern, especially through the so-called Balkan route, considered a primary source of illegal migration. Indeed, illegal movement is closely related to other forms of organized crimes, notably human trafficking. According to Euro Statistics, in the recent years, human trafficking has become one of the most prevalent and lucrative criminal [*32] businesses surpassing the drug trade. Also according to a 1999 EU POLICY REPORT ON THE FUTURE OF IMMIGRATION, the EU had been preparing a range of policy measures to cope with these problems, including a system to reject groundless demands from asylum seekers, rapid repatriation, effective management of external borders, and readmission agreements with non-EU countries. However, a recent study confirms this seemingly urgent but contradictory outlook in EU immigration policy vis-à-vis stated policy of openness and free movement. Gallyla Lahav (2004) asserts that both the EU public and elites favor adoption of restrictive immigration policies despite requirements of open borders, concluding that EU public opinion is not too diffuse to influence policy on immigration. Briefly stated, neither the public nor elites are likely to have liberal opinions on immigration issues.

In IMMIGRANTS AT THE MARGINS: LAW, RACE, AND EXLUSION IN SOUTHERN EUROPE, Kitty Calavita focuses on Spain and Italy. Both countries are member states of the European Union, and both are experiencing large-scale immigration. Calavita locates her study within the broader tradition of “law in action,” thus drawing from and extending her previous work on the contradictions of immigration law (see Calavita 2001). Her attention to detail is challenging and breathtaking. She sees contradiction in Italian and Spanish immigration laws that treat immigrants exclusively as workers with legal status contingent on their continued work permit. In her view, these laws pull into two directions. They cautiously welcome immigrants as workers on one hand, and yet on the other, restrict their ability to settle by denying them permanent residence, while underwriting ambitious programs designed to integrate them into the social and cultural life of the community. To be sure, none of these options is optimally settling or satisfactory.

In this book Calavita explores immigration laws and immigrant experiences in these two southern European states. Her accounts show significant similarities to boarder states in the southern United States experiencing similar immigration issues. In her delineation, she exposes the tension between the observed temporary and contingent legal status of most immigrants in contrast to government emphasis on integration. Her argument demonstrates the gap between law and the rhetoric of politics, one that stresses urgency in facilitating integration. As demonstrated, while Spain and Italy fail in this effort, this paradox is addressed by combining theoretical insights with extensive data collected over a decade from a range of sources. Calavita demonstrates the connection between the role of immigrants as a source of cheap labor in both countries and their legal prescription tied to social exclusion, criminalization, and racialization. She extrapolates to more general questions of citizenship, belonging, race, and community, to contexts beyond Southern Europe and the EU in general. In the end, her approach in this book has both theoretical and practical relevance. Theoretically, she is interested in marginality and exclusion, and [*33] practically, on contradictions in seemingly divergent policy options.

In Chapter 1, Calavita sets forth a foundation for the book with a painstaking account of how Spain and Italy, long considered exporters of labor, also became targets of large scale immigration during the 1970s and 1980s. Her initial assessment of the political and economic contexts also serves as the backdrop for further explaining the forces that shaped issues of immigration law in both countries. The influx of new immigrants to Spain and Italy, she observes, occurred at precisely the moment when northern European countries began closing their doors to third-world workers. In a way, the restrictive immigration policies of other European countries made both Spain and Italy alternative destinations. However, Calavita argues that increased economic opportunities and higher wages associated with a wide economic gap between Southern EU countries and those of northern Africa were by far most critical in attracting people who sought better paying jobs (pp.1-21).

In Chapter 2, Calavita provides the political and sociological context of law in action. Here she asserts a relationship between the politics of immigration and immigration law. She sets a central theme, one that not only questions but also describes how immigrant marginality is socially constructed and constantly reconstructed, despite similar and concurrent emphases on social integration in both countries. For Spain, especially, and Italy to lesser extent, 1985 is important because Spain became part of the European Union that year. In addition, five other EC countries signed the Schengen Accords, whose intent was to foster unimpeded flow of immigration within Europe. While Spain did not join the Schengen Accords that year, it enacted its first organic law on rights and liberties of foreigners. The law also was intended to control illegal immigration to the Spanish territory. Calavita concludes the chapter with discussion of illegalities built into more recent laws, the logical outcome of a system that welcomes third world immigrants because they provide the local economy with cheap labor. Put differently, for both Spain and Italy, Calavita agues that the contingent nature of immigrants’ legal status is underscored by instability inherent in the very programs designed to legalize them (pp.22-47).

In Chapter 3, Calavita pays particular attention to demographics in order to trace the economic locations and working conditions of immigrants in both countries (pp.48-74). To that end, she sketches the size, makeup, and geographic distribution of immigrant populations, as well as the Spanish and Italian economies, regional and structural political divisions. The picture that emerges from this assessment is what the author calls “economics of alterité.” According to Calavita, immigrants’ location within the economy reinforces their “otherness” and does so through a stigmata of poverty. In other words, she argues that regardless of the sector of employment or geographic region, immigrants are “others;” the notable “new untouchables” who do the work that local citizens largely shun. [*34]

In the end, what Chapter 3 captures best is the remarkable mutuality in legal and economic marginality of immigrants in both countries. As Calavita sees it, this is how legally constructed “otherness” is compounded and partially reproduced in locations populated mainly by immigrants in both Spain and Italy. She sees in these two critical explanatory variables: (a) the fragility of immigrant legal status contributing to their disempowerment vis-à-vis employers; and (b) their concentration in the underground economy, which jeopardizes their ability to legalize their existing status.

Chapter 4 explores more thoroughly the contradictions inherent in the concept of “immigrant integration,” since it embodies a policy central to immigration politics in both countries as well as the broader European Union (pp.75-98). Integration, she argues, also reflects the sense of urgency which local political leaders, including those of anti-immigrant groups, attach to immigrant integration efforts in general. She sees efforts to enact laws or initiate policies and programs as an intense effort to integrate. However, immigration policy in Spain and Italy hopes to fill the needs for labor but reflect suspicion of immigrants for their ‘Otherness.’ For a fuller picture, she also delves into the various meanings of immigrant integration by tracing the various laws, policies and programs designed to promote it. The concept of integration, she argues, “does yeoman’s work in both Italy and Spain. . . . [I]t fills semantic space between politically correct assimilation and the politically unpalatable multiculturalism,” and “promises a cohesive community while assuring respect for difference” (p.97). Thus, Calavita concludes that immigrant marginality that is so beneficial to the economy of Spain and Italy also creates a class of outcasts that is unacceptable to liberal democracies that herald inclusiveness.

Chapter 5 focuses on the dynamics of immigrant exclusion despite claims of integration. Titled “The Everyday Dynamics of Exclusion: Work, Health, And Housing,” the chapter focuses on the daily expectations of immigrants mindful of their legal status which makes them vulnerable as a group (pp.99-124). Armed with empirical information presented in preceding chapters, Calavita focuses on the difficulties encountered by immigrants in accessing fundamental necessities, such as housing and health facilities and the ripple effects of institutionalized irregularities for those who are either temporarily legal or illegal. She conceptualizes these necessities as “fundamental prerequisites for social belonging” as she revisits the marginalization implicit in policies that construct immigrants as contingent workers (p.100). In the face of marginality imposed by law, she argues, the push to integrate meets defeat halfway. She explores system breakdowns, and obstacles to their repair to demonstrate how institutionalized irregularities constructed by law, economic marginality, administrative-bureaucratic hurdles, and racialization interact to preclude immigrants’ full social participation, as well as the exercise of their rights in core arenas of health care and housing. Calavita [*35] concludes the chapter with an examination of immigrant groups who increasingly organize strikes and stage sit-ins, while demanding the realization of social and economic rights under current laws.

In Chapter 6, “Fuel on Fire: Politics, Crime, and Racialization,” Calavita delves into the stigmatized world of immigrants to examine criminalization, as well as political and media exploitation and related racialization – a theme explicit in the literature on immigration politics (pp.125-168). Immigrants, she argues, are excluded, treated as criminals, seen as different, considered dangerous, and above all, racialized “others.” While some scholars describe the social exclusion of “others” as a counterproductive effort at community building, Calavita sees racialization as part and parcel of the “economics of alterité” (a reference to difference), comparable to those who at other times and in other places were themselves declared racially inferior. The dynamics she argues, are structurally driven, motivated and fueled by politicians and a media, who make a career from the frightened and the ghoulish. Inferring from a 2002 Italian and Spanish public opinion study demonstrating a significant correlation between immigrants and crime, Calavita argues that whatever the link, the symbolic criminalization of immigrants is fueled by hot political rhetoric and the media that thrive on the heat (p.129). Finally, furthering the argument made in Chapter 5 that exclusion from basic social amenities is an inevitable by-product of poverty and dysfunctional laws, the overall gist of Chapter 6 is that the racialized process of immigrant exclusion is reinforced by their criminalization stigma, a form of institutionalized irregularity.

The Conclusion presents a summation of previous chapters but with a theme of its own. Calavita surmises that immigrants are caught in a “vicious circle” of exclusion, from which they are unlikely to escape. The larger argument of this book is that this pivot is itself the product of law and policies across the globalized economic community. It is a product of law, she argues, in alchemy of economics, race, identity, and exclusion in the sense that immigrants’ “otherness” is a legal construct formally codified. This is true, of course, since immigration laws and policy construct people as non-citizens with limited rights and privileges. Further, immigrants who achieve legal status no sooner find that their new status is contingent and unstable, with periods of illegality and vulnerability that bleeds into periods of legality.

Specifically, Italian and Spanish immigration laws makes it virtually impossible for immigrants to gain admission as legal residents outside those sectors where wages and working conditions are inadequate to attract sufficient local workers. That is, law by its very effect, guarantees labor under conditions shunned by the indigenous working class, an arrangement that produces economic “otherness.” Yet, as skillfully argued by Calavita, even the most ambitious policies of “immigrant integration” are doomed by the very law it creates when confronted with the contradictory policy of economics of alterité [*36] (difference) within the legal infrastructure that supports it. In many ways therefore, immigration exposes the contradictory nature of and fragmentation within the contemporary global economy, where those who need most are very much excluded, contrary to policies designed to do just the opposite.

In the final analysis, Calavita’s work invites a rethinking of consequences, a dialogue and discussion on issues involving immigrant inclusion and exclusion through politics, law and economics. As intimated, her hope is to further understanding of the implications of immigration for citizenship, race, belonging, national identity, and the fashioning of an enduring global community. In many ways IMMIGRANTS AT THE MARGINS is timely for understanding the implications of globalization as it intertwines with policies of both economic integration at the national level and laws written to facilitate free movement of citizens at the state level. More importantly, her empirical focus on questions of how immigrant marginality and their exclusion are constructed and reconstructed despite equal efforts to reverse is very informative and highly commendable.

I see practical and theoretical importance in her work for graduate students and researchers interested in related issues of immigration and law. For example, the argument that globalization is fraught with contradictions, which inescapably unleashes a series of crises within privileged countries, which in turn exacerbates inequalities, is one to be taken seriously. Calavita’s empirical observation of the apparent failure of law and identification of the cause as inherent in contradictory policies is noteworthy.

Finally, in spite of Calavita’s penchant for detail and tendency toward repetition, her ultimate analysis and conclusion that depicts irony in policies and laws that welcome, while at the same time reject immigrants as community members in both Spain and Italy, is quite penetrating. The resulting tension, viewed through the prism of political and economic conflicts on immigration within the Italian and Spanish contexts, has profound implications for other countries with similar immigration policies (also see Lahav 2004).

REFERENCES:
Calavita, Kitty. 1989. “The Contradictions of Immigration Lawmaking: The Immigration Reform and Control Act of 1986.” 11 LAW AND POLICY 17-47.

Calavita, Kitty. 2000. “The Paradoxes Of Race, Class, Identity And ‘Passing’: Enforcing The Chinese Exclusion Acts, 1882-1910.” 25 LAW AND SOCIAL INQUIRY 1-40.

Commission Communication of 3.12.2002 to the Council and European Parliament: INTEGRATING MIGRATION ISSUES IN THE EUROPEAN UNION’S RELATIONS WITH THIRD COUNTRIES: Part I. COM/2002/0703 final [*37]

Commission Communication of 3.12.2002 to the Council and European Parliament: MIGRATION AND DEVELOPMENT - II. REPORT ON THE EFFECTIVENESS OF FINANCIAL RESOURCES AVAILABLE AT COMMUNITY LEVEL FOR REPATRIATION OF IMMIGRANTS AND REJECTED ASYLUM SEEKERS, FOR MANAGEMENT OF EXTERNAL BORDERS AND FOR ASYLUM AND MIGRATION PROJECTS IN THIRD COUNTRIES: Part II. COM/2002/0703 final

Conclusions of the Presidency TAMPERE EUROPEAN COUNCIL 15 AND 16 OCTOBER 1999 PRESIDENCY CONCLUSIONS INTRODUCTION TOWARDS A UNION OF FREEDOM, SECURITY AND JUSTICE.

Lahav, Gallya. 2004. IMMIGRATION POLICY AND POLITICS IN THE NEW EUROPE: REINVENTING BORDERS. New York: Cambridge University Press.

Policy Papers # 5. 2001. ON THE FUTURE OF EUROPE: THE COMMON CHALLENGE – MEMBER AND CANDIDATES FACING THE EU FUTURE MIGRATION POLICY. Warsaw, Poland.

The TREATY OF AMSTERDAM, AMENDING THE TREATY ON EUROPEAN UNION, THE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES AND CERTAIN RELATED ACTS signed on October 2, 1997, and entered into force on May 1, 1999

Vatahov, Ivan. 2002. “Satisfying the EU On Illegal Migration,” SOFIA ECO MEDIA LTD. November .07, 2002.

© Copyright 2006 by the author, Marc-Georges Pufong.

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COURTROOM 302

by Steve Bogira. New York: Alfred A. Knopf, 2005. 416pp. Hardback. $25.00 ISBN: 0-679-43252-3. Paper (2006). $14.95. ISBN: 0-679-75206-4.

Reviewed by Jack E. Call, Department of Criminal Justice, Radford University. Email: jcall [at] radford.edu.

pp.26-30

This is an excellent book about the criminal courts in Chicago. The book is written by Steve Bogira, a reporter for THE CHICAGO READER (a self-styled alternative weekly newspaper). The story of the Chicago criminal courts is told largely through Bogira’s observations of the courtroom (Courtroom 302) presided over by Judge Daniel Locallo, a former prosecutor. Judge Locallo gave Bogira extraordinary access to him and freely shared his thoughts about events that Bogira observed and issues with which Locallo had to deal. Many others in the court system, including many defendants, did the same. The result is a compelling, well-written story that gives the reader considerable insight into the daily operations of a criminal court.

The general organization of the book focuses on the various stages of the criminal process. It discusses a wide range of criminal justice issues, such as sentencing, plea bargaining, prosecutorial discretion, racial discrimination, police misconduct, judicial corruption, to mention just a few.

Unlike some books that use a single case for this purpose (Phillips, 1978), Bogira acquaints the reader with several cases, and emphasizes one of them when it is most relevant to a stage or issue that comes under discussion. Occasionally, a case is discussed at length in only one place in the book, to highlight a particular point or issue. For example, a murder case is used to demonstrate how cases often have both good and bad facts that the defense can try to downplay and stress (Chapter 4 – “Good Facts, Bad Facts”). The defendant (a young man named Harris) killed another young man who was sitting in the victim’s car, apparently because Harris thought the victim was a member of a rival gang (based on the fact that the victim was wearing a baseball cap with a “T” on it) – although the motive was never clearly established. An eyewitness identified Harris as the killer, and Harris confessed (bad facts). On the other hand, Harris is a very young man who was susceptible to police pressure, and the eyewitness initially identified another suspect (good facts).

A burglary case is used to discuss the effectiveness of public defenders (PDs), especially from the perception of their clients (Chapter 7 – “A Real Lawyer”). Many indigent defendants (especially, presumably, those who are repeat players) are so disparaging of the quality of assistance they receive that they tell others PD stands for “Penitentiary Dispenser” (p.126). In this burglary case, the defendant is initially somewhat skeptical about the quality of advice from his PD. However, when the defendant insists on going to trial, the PD is so persistent in his presentation of evidence favorable to the defendant that [*27] he is acquitted. This prompts the defendant to tell his attorney, “Hey, you good. . . Why ain’t you become a real lawyer?” (p.138).

One case receiving considerable attention in the book is dubbed “The Bridgeport Case” by Bogira. It involves the brutal assault of a 13-year-old African-American teenager who had wandered into the white community of Bridgeport (with two other teen-agers – one African-American and another Mexican-American) to get air for his bicycle tires. An 18-year-old white man, Frank Caruso Jr., (assisted by two other young white men) accosted the three teen-agers, told them they did not belong in the neighborhood, chased down one of them when he tried to flee, and beat and kicked the 13-year-old into a 6-day coma. Bogira uses the case to discuss several issues of importance to the criminal justice system.

One issue has to do with race relations (Chapter 3 – “Baggage”). This case was especially difficult for the judge and prosecutor because of its interracial character. Judge Locallo knew that the black community would watch the case closely to see if the perpetrators were dealt with harshly, but he also recognized that if he rushed to judgment to assuage the black community’s concerns, the result could have been a lack of justice for the alleged perpetrators. These concerns were exacerbated because the evidence against the two less culpable defendants was not as strong as that against the principle defendant. In fact, Bogira later presents a very strong argument (Chapter 19 – “Politics”) that one of the two less culpable perpetrators who entered into a plea bargain may well have been innocent.

The Bridgeport Case also serves as a useful vehicle for discussing jury selection (Chapter 16 – “Prejudice”). The Supreme Court has taken steps to insure that jury selection will be color-blind, but, in the Chicago criminal courts at least, it is not. Prosecutors have developed what an Illinois appellate judge has called “Twenty Time-Tested Race-Neutral Explanations” for excusing black jurors. Two black women made it onto the jury, but no black men survived voir dire.

Perhaps the most interesting aspect of The Bridgeport Case is the sentencing decisions it presented Judge Locallo (Chapter 18 – “Compassion”). Locallo faced a difficult dilemma. He did not want to appear to condone a violent, racially-based beating, but often first offenders (even first violent offenders) receive probation. Plus, at the time he had to decide on the sentence for Caruso, the most culpable defendant in the case, Locallo knew that it was likely he would be asked to approve probation sentences for Caruso’s co-defendants because the evidence against them was so much weaker. The prosecutors feared acquittal if they went to trial with those two defendants. If Locallo gave Caruso a stiff sentence but approved probation for the other two, it might appear that he was being inconsistent. (Eventually, he decided to give Caruso an 8-year prison sentence, while awarding probation to the other two defendants).

Through another case (the Larry Bates Case), we see the system’s difficulty dealing with drug crimes. Larry Bates is a man with a drug problem, but he is not [*28] a hard core addict. He genuinely wants to stay off drugs, but his criminal drug record makes it difficult for him to do so. Judge Locallo gave Bates every chance to straighten out his life. Even after Bates committed a second drug possession offense, Locallo gave him probation again (“paper on paper.” Chapter 1 – “White Sales”). Amazingly, when Bates was caught a third time, for selling drugs this time, Locallo was still willing to give Bates a shot at a drug treatment program, rather than prison (Chapter 12 – “Defective Products”). He got his life straightened out enough to find a good woman to marry him (his second marriage). However, after a series of low-paying jobs that made it difficult to make ends meet financially, Bates returned to his old practice of selling drugs to raise enough money to buy drugs, was caught, and finally went to prison – for seven and a half years (Epilogue). In the course of relating the Larry Bates saga, Bogira discusses the effect of drug offenses on the criminal justice system, the history of illicit drug activities in the United States, and some of the racial implications of the system’s treatment of offenses.

Two very important issues run throughout the book. The first concerns the implications of electing judges. In Chicago, some associate judges are selected by other trial court judges and are subject to reappointment every four years. Because associate judges are paid less than circuit court judges, most aspire to circuit judge status. Circuit judges are elected in partisan elections and are subject to periodic retention elections, in which they must attain a 60% majority in order to remain on the bench. Judge Locallo was an associate initially, but had been elected a circuit judge by the time Bogira did his research. During much of the period covered by the book, Locallo was preparing for a retention election.

It is clear that Locallo (and presumably his colleagues as well) often thought about the election implications of his decisions, even though losing a retention election is extremely rare. He liked to preside over highly publicized cases (“heater cases”) not only because he found them interesting but also because he thought they improved his chances for retention (even though heater cases also carry a greater risk of presenting an issue to resolve that might be both controversial and unpopular).

The disposition rates of judges are published prior to retention elections by the Chicago Crime Commission. Judge Locallo prided himself on his caseload management skills. Sometimes this preoccupation with caseload management resulted in tactics that were arguably questionable and were indisputably unpopular with other courtroom players. For example, Locallo often heard evidence in bench trials during breaks in jury trials. This meant that he would base his judgment of guilt or innocence on evidence that he heard in bits and pieces over the course of several days. Police officers, prosecutors, and defense attorneys disliked this practice because it often required them to spend a few hours in the courtroom awaiting the possibility of a break in another trial.

The Bridgeport Case provides the best example of how retention elections may influence a judge’s decision-making. As we have seen, Judge Locallo had to make difficult decisions about Frank [*29] Caruso’s sentence. Caruso’s attorney accused Locallo of rushing to a quick sentencing decision as to Caruso, because Locallo knew he would be accepting a lenient plea agreement with respect to the other two defendants and wanted to get a harsh sentence for Caruso on the record before the retention election. Whether that was true or not, it was clear that Locallo took the Caruso sentencing very seriously. After pronouncing sentence on Caruso, Locallo distributed to the press copies of his explanation and rationale.

The other important theme that runs throughout the book concerns the questionable ethics that are displayed time and again by virtually every player involved in the courtroom scene. It is often thought that defendants will lie in an effort to avoid conviction, so we should not be surprised to learn in the Epilogue that a defendant in a murder trial Bogira had discussed earlier in the book admitted to Bogira that she lied on the witness stand at her trial (and in her confession to the police) when she testified that the victim tried to sexually assault her in his taxi cab. (In fact, the defendant had been engaged in an affair with the cab driver and killed him when he told her he was ending the relationship). Even some readers without extensive prior knowledge about the judicial system may have read something about the Operation Greylord investigation that developed evidence of extensive bribery of some Chicago judges by some defense attorneys and will thus not be completely shocked when some of this information is discussed.

It is the relentless drumbeat of questionable ethics that is so remarkable and that may be somewhat surprising even to readers who are quite knowledgeable about the operation of our courts. Because of the sheer number of incidents discussed in the book, it is impossible to mention all of them or to discuss any of them in great detail. Suffice it to say that we see prosecutors who are willing to negotiate plea bargains in cases where they know they probably cannot get convictions, defense attorneys who are willing to urge their clients to accept such offers, and judges who are willing to approve them. We see police officers willing to use questionable tactics (including torture) to obtain evidence and judges who remain skeptical about claims of torture even after such tactics have been documented. We see police officers who create separate, unofficial files (called “street files”) to hide evidence that might be helpful to the defense and prosecutors who are willing to keep the practice from coming to light. We see a jury foreman who seems more interested in reaching a quick verdict than in reaching an accurate one. We see a prosecutor who is willing to try to prove a defendant’s guilt based almost exclusively on the testimony of a 10-year-old brain-damaged witness, who saw his sister killed but whose recollection of that event was, to put it mildly, of questionable reliability. We see judges who are willing and allowed to, in effect, review the judgments of colleagues who are friends (and sometimes even mentors) as well. We see a prosecutor present a theory of a case based on facts that he probably does not believe to be true and prosecutors who withhold evidence from the defense that they have a legal duty to share with them. For many readers, this book will [*30] leave them with a picture of a court system in great need of improvement.

This is an excellent book to use with college students. Bogira is a journalist whose writing style should be very appealing and accessible to undergraduates. The use of several cases that run throughout the book assists greatly in engaging the reader. One develops an interest in the principals in these cases – the judge, prosecutors, defense attorneys, public defenders, deputy sheriffs, witnesses, victims, victims’ families, and even defendants (in spite of the fact that the reader assumes they are guilty of significant crimes). The reader wants to know how these people fare in the system, how they feel about their role in the system, and whether they feel the system has treated them well.

Another plus for this book as a college course resource is that Bogira has done his homework. He puts events and issues in context with empirical evidence developed by academicians. (One slight drawback is that, while he cites the empirical sources in the back of the book, there are no footnote numbers or other specific indicators in the text that would clearly alert the reader that a source will be cited in the back. On the other hand, it is usually fairly clear when Bogira is referring to a source that will be cited). The book also has an excellent index that is very useful in pulling together all the strands of a case that is discussed in several different places.

The book is not without its deficiencies. For example, in an early chapter, Bogira describes the process by which it is determined which defendants receive relatively lenient treatment and which are dealt with more harshly, but he does not systematically describe the criteria that form the basis for this “sorting” process. Similarly, Bogira indicates that his overall theme is “how justice miscarries every day, by doing precisely what we ask it to” (p.22), but he does not finish the book by discussing this point comprehensively. Pedagogically, this might be turned into a positive. The book provides more than enough information to permit the reader to address the issue of whether the courts do justice. Teachers may ask their students to address that issue knowing that they will have to answer it largely on their own, without being influenced or limited by Bogira’s conclusions.

REFERENCE:
Phillips, Steven J. NO HEROES, NO VILLAINS: THE STORY OF A MURDER. (Knopf Publishing Group, 1978).

© Copyright 2006 by the author, Jack E. Call.

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THE RULE OF LAW AND THE SEPARATION OF POWERS

by Richard Bellamy (ed). Aldershot, Hampshire: Ashgate Publishing, 2005. 596pp. Hardback. $250.00/£130.00. ISBN: 0754624633.

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

pp.23-25

The number and variety of articles and books on the rule of law has increased substantially in recent years. It is evident from these works that the rule of law remains a multifaceted and contested concept that resists easy definition or description. The nature of rules, the problem of how to restrain judicial law-making while preserving an independent judiciary, the methods of limiting legislative and executive power, and more generally the relationship between the rule of law, constitutionalism, and democracy are all themes that continue to occupy legal scholars, political scientists, and others.

Richard Bellamy’s book, THE RULE OF LAW AND THE SEPARATION OF POWERS, is a welcome addition to the literature on this subject. Really three books in one, it is a substantial collection of seventeen articles by leading scholars that explores three important aspects of the rule of law: defining the rule of law, the proper scope of and limits on judicial decision-making in a democracy, and the separation of powers (including federalism) as a means of limiting governmental power. These articles, reproduced and paginated as they originally appeared in journals, are preceded by a lengthy introduction in which Bellamy not only summarizes the contributions of the authors contained in the book, but offers his own valuable insights into the rule of law.

In the introduction, Bellamy deftly outlines the primary arguments found in the essays and, in his own words, proposes a political view of the rule of law as arising from a balance of power between and within the legislative and judicial branches. Bellamy subdivides his introduction and the essays that follow into discrete sections. His methodology is logical and, therefore, easy to follow. In the first section of his introduction, Bellamy explores the nature of law and its relationship to political power. He persuasively contends that the notion of the rule of law must be distinguished from the rule of good law and rule by law. More specifically, he argues that the rule of law cannot simply be associated with a view of the good or just that lies outside the realm of politics or political or legal authority. Bellamy believes that rule by law is itself insufficient to limit the arbitrary abuse of power.

To quote Bellamy,
[B]oth court-centered and legislative-centered approaches must confront what I dub the Hobbesian challenge: namely, how can they avoid empowering either courts or legislatures as a sovereign power, above to act in an arbitrary way? The former seek to do so by offering what might be called a ‘third theory of [*24] law,’ lying midway between natural law and legal positivism. They have to show how the very nature of law implies certain norms that can guide in all cases, directing judicial discretion so that law can indeed rule and legal forms bind those governments committed to employing them. (p.xi)


Bellamy then provides the framework for the essays that he collected for Part I, “Defining the Rule of Law.” Joseph Raz’s now-classic essay, “The Rule of Law and its Virtue,” provides a foundation for a positivist, “narrow” approach to the rule of law that is complemented with essays by Matthew Kramer, Margaret Radin, and Paul Craig, emphasizing the importance of the morality of law through developing a more robust notion of legality. Jeremy Waldron’s essay, “Is the Rule of Law an Essentially Contested Concept (in Florida),” which places matters within the context of politics, rounds out this section of the book.

Bellamy’s introduction then prepares the reader for the essays in Part II, “The Rule of Law and Judicial Discretion,” consisting of essays by F.A. Hayek, Ronald Dworkin, J.L. Mackie, Cass Sunstein, and Marin Shapiro. As Bellamy notes, at least at a superficial level, Dworkin’s and Hayek’s views could not be more different. Although both theorists see the rule of law as the primary safeguard for individual freedoms in society, Hayek notes that the rule of law defends the market against retributive measures. By contrast, Dworkin believes the equitable distribution of resources is a condition of, rather than a restraint on liberty (p.xx). Of course, most would agree that Hayek is much more inclined toward a formal and rule-based model, whereas Dworkin’s approach is rooted in the concept of “principle.”

According to Bellamy, both Dworkin and Hayek distinguish law proper from ordinary legislation, which they view as tainted through being particularistic and goal-oriented. More specifically, Dworkin and Hayek view law as prioritizing the individual and ordinary legislation as prioritizing the collective. That being said, the primary function of the rule of law is to ensure that the one is never sacrificed to the other. Bellamy also notes that Dworkin and Hayek are in agreement on the notion that members of the judiciary can use law because it never runs out.

In the final portion of the introduction, Bellamy turns to a discussion of the separation of powers, parliamentarism and federalism, which are reflected in the articles in Parts III and IV of the book. The editor’s own article, “The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy,” sets out many of the key issues involved in this aspect of the rule of law. This is followed by articles by Eric Barendt, John Braithwaite, Geoffrey Brennan and Alan Hamlin, Robert E. Goodwin, and Bruce Ackerman. Together, these essays reinforce the significance of this “structural” aspect to an effective rule of law system and help establish the relationship between the rule of law and constitutionalism that is often overlooked or misunderstood in other works.

The book’s concluding article, Koen Lenaerts’ “Constitutionalism and the Many Faces of Federalism,” offers a particularly valuable comparative [*25] perspective on problems of federalism within the European Union and other countries (such as Canada). His analysis reminds the reader that the rule of law in all its conceptions was and remains a problem that attracts and perplexes all legal cultures. The articles in this volume, taken together, will contribute substantially to the reader’s understanding of this important idea.

© Copyright 2006 by the authors, David Wallace and Mark Welton.

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CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL

by Bruce J. Winick Durham, NC: Carolina Academic Press, 2005. 362pp. Cloth. $48.00. ISBN: 159460021X.

Reviewed by Dan A. Lewis, Department of Human Development and Social Policy, Northwestern University. Email: dlewis [at] northwestern.edu

pp.20-22

Mental health law has had an interesting last 40 years. Born of the reform movements of the 1960s and fueled by a civil rights and critical spirit, it has moved through the policy cycle that begins with great vigor and youthful exuberance and ends in an old age of cynicism and regret. Deinstitutionalization, the primary goal of the youthful period, no longer looks so good as an alternative to the reliance on institutions that was the hallmark of the pre-reform era. Reformers, throughout the life span of this movement, have focused on the commitment process to state hospitals as the key to making change. Mental health legal reformers have continued, over the life span of this policy, to tinker with the commitment process as a way to improve services and at the same time protect the rights of the mentally ill person. Enter Bruce Winick and his new book, CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL. Winick hopes to provide the Viagra that will energize an old, tired perspective. Whether he convinces readers will depend on the politics and probably the age of the reader, but he surely has written a book that should be read by everyone interested in mental health law.

Winick writes from that old liberal, theoretical perspective: he wants to convince the reader that his therapeutic jurisprudence model is the key to moving beyond the quagmire that currently exists in mental health law. That commitment to commitment is what makes this book an important read. Winick keeps the faith that civil commitment is the key to improved services for the seriously mentally ill. Liberal reformers have been making this argument for 50 years, and for 50 years much reform energy has gone into changing how this process works. He argues for a synthesis of the civil rights perspective with a therapeutic perspective. Winick wants judges, prosecutors and defense attorneys to change how they think about practicing. If these lawyers can keep both the therapeutic and legal interests to the mentally ill person in mind, they can improve the commitment process making it a healing and humane experience. He is resurrecting the “best interest” of the client approach.

The Winick approach rests on a set of liberal assumptions that are, at the very least, now suspect. Winick assumes that professionals can be guided by altruism which will lead to better outcomes for the mentally ill, that the courts provide the levers for improving how institutions operate, that the public will go along with the humane measured approach he suggests, and that the commitment process is still the key to better outcomes even though state hospitals are no longer [*21] the central service they once were. These assumptions may all be correct, or some or all of them may be wrong. But they go untested throughout the book. Surely we should be suspicious of another set of reforms that depend on the motivations and intentions of professional strangers. The national experience with deinstitutionalization should give us pause to continue down the same road that makes the non-system of community care the linchpin of reform. Why should state legislators support this approach? What training should lawyers receive, and who should pay for it? What evidence do we have that the mentally ill will be any better off under these new arrangements? Winick is so sure of his approach and so eager to promote it that these questions are not asked, much less answered. Why would it be in someone’s interest to implement the model he proposes? I was reminded of the moral entrepreneurs of another century, pushing a reform they believed in deeply but not seeing where the reform could go wrong.

We can see the same problem in the educational community where liberal reformers were also convinced that desegregation was the key to improving schools for the poor. Forty years of desegregation practice has only convinced them that we have not tried hard enough to make it work, not that it may not have been the right solution to the problem. Deinstitutionalization and desegregation were born of the same thinking and spirit some 50 years ago. Neither has fared nearly as well as its advocates had hoped; neither garners much support from the public.

Should we still be focusing on the commitment process if we want to improve outcomes for the mentally ill served by public dollars? It is not clear, to put it generously, that the commitment process is the pivotal decision affecting the lives of the mentally ill. Fifty years ago the commitment process was the beginning of a career as a mental patient. It changed people’s lives if they were committed. Often the commitment was a life sentence or, for the old, a death sentence. Often custody passed as treatment. Today, commitments seem more a consequence than a cause of the problems of treating the mentally ill. This, of course, was not true 50 years ago when commitment played a much bigger role in the careers of the mentally ill. Winick maintains his commitment to a set of assumptions that I believe are no longer warranted. Nevertheless, his approach deserves serious consideration for there is a whole generation of mental health advocates who believe as Winick does, and there will continue to be a push from this group to continue down that long road to a commitment process that does a better job of balancing the needs of the patient with the rights of the citizen. There is something to be said for keeping the faith over almost 40 years of trying to improve mental health services through legal action. The problem is that times and policies change, indeed the emphasis on legal challenges through class actions has seen limited success in changing how these systems work. The outrages of the institutional era have been replaced by procedures and processes that seem more the problem than the solution to a more conservative public. Most states have put protections for the mentally ill in place that seem cumbersome and awkward. To keep trying to get it right about civil commitment when it has not [*22] proven the key to improving services, could be leading us in the wrong direction.

The book has an odd tone for the social scientist. Winick is clearly making a normative argument. He wants to argue for what ought to be. He weaves in an empirical dimension using studies that illustrate the effectiveness of therapeutic jurisprudence. But the line between the normative and empirical dimensions is not drawn clearly. The book reads like a brief, pushing a line of argument. I would have liked to see more attention to the current situation in key states so we can see what the reality is and then think through how these reforms would affect that situation. The treatment system is guided today by federal reimbursement policy and the complex interplay between state service providers and the private sector. The notion that legal reform leads to organizational change has clearly been challenged as a flawed conceptual framework not only in mental health but education, foster care, and other human services. Winick and others cling to the notion that a change in law will produce an improvement in services, but the history of reform suggests that things are not that simple. Winick certainly makes the problem of change easy: change the law and keep changing it until those forces of darkness come around. It also keeps the agent of change safely locked up in the legal establishment, looking for just that right turn of a judicial phrase that will bring those judges and prosecutors in line with the goals of the reformers.

Winick joins a long line of reformers, from Dorothea Dix on down who single-mindedly push a way of changing practice. Much of the damage that has been done to the mentally ill has come from those who desire to help. Andrew Scull’s (2005) new book is just the latest reminder that we should be careful in accepting the well-intentioned expert as the friend of the mentally ill. To rely on the kindness or, if you will, therapeutic sensitivity of lawyers to improve the lives of the mentally ill seems a path loaded with trouble.

Winick still believes that changes in law will produce the intended changes in the behavior of those affected by the law. He is so convinced that a good normative framework will win the day that he does not ask about the factors that make it more likely that framework will be adopted and implemented successfully. Where are the pressures to make therapeutic jurisprudence work? In whose interest is it to make therapeutic jurisprudence work? The questions are not asked, much less answered.

Be that as it may, Winick represents a way of thinking that has dominated the conversation about reform in mental health for a very long time. The “therapeutic jurisprudence model” deserves serious consideration, perhaps more as the reason liberal reforms seem so out of touch with current realities and less as a way to make the commitment process work.

REFERENCE:
Scull, Andrew. 2005. A TRAGIC TALE OF MEGALOMANIA AND MODERN MEDICINE. New Haven: Yale University Press.

© Copyright 2006 by the author, Dan A. Lewis.

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A NATURAL RIGHT TO DIE: TWENTY-THREE CENTURIES OF DEBATE

by Raymond Whiting. Westport: Greenwood Press, 2002. 234pp. Cloth $97.95/£55.99. ISBN: 0-313-31474-8.

Reviewed by Adelaide H. Villmoare, Department of Political Science, Vassar College. E-mail: Villmoare [at] Vassar.edu.

pp.17-19

Raymond Whiting advocates a right to die grounded in natural law. Contending that various forms of euthanasia are not uncommon today in the United States and Western world, he argues that the US should confront the practice and its justifications head-on in order to protect those who wish to end their lives and those who do not. When the state fails to establish a clear policy supporting and regulating the right to die, it endangers its citizens. He writes that “we are left with only two options: We can both legalize and regulate euthanasia in order to guarantee the safety of all, or we can continue to allow a secret and dangerous blackmarket in death to exist in our country” (p.2). His position is that government best protects the right to die and the right to live through what he calls “the active permissive mode” of euthanasia. This mode recognizes the right to die as a fundamental, pre-political right that includes a right to the means to die, or a right to assisted suicide and requires the state to regulate the practice of the right.

Whiting has a two-pronged argument. This first is that contemporary society by and large accepts a right to die even where it remains controversial. The second is that there is historical and philosophical justification for this right in natural law. The early chapters describe notable events and actors moving the US toward recognition of a right to die. The intellectual heart (and bulk) of this book, however, is devoted to an analysis of natural law theory, which he believes provides a deeper, moral justification for a right to die than positive law can ever do.

The first chapters on the evolution of end of life concerns, including the right to die, euthanasia, right to life, and slippery slope issues, are well trodden terrain. With a particular focus on contemporary debates in the US, Whiting presents reasonable summaries of positions, although primarily as an entrée into the next sections on natural law philosophy. A discussion of natural law and rights derived from natural law occupies the analytic core of the book. For example, in the chapter “Anatomy of a Right” he argues that the rights of individuals are embedded in natural law, “a concept with which our founding fathers were intimately familiar and eventually incorporated into our constitution” (p.54).

Once he has planted the seed of his argument that individual rights arise from natural law, he spends most of the remainder of the text familiarizing his reader with the history of natural law and with driving home the argument that natural law provides the most profound and effective justification for the right to die. He discusses the long role of natural law through history. For the [*18] reader most interested in the right to die and euthanasia in all its forms, these chapters may be heavy going and not really necessary for understanding the last chapters where Whiting brings together the different strands of his position on natural law and individual rights. Although he recognizes that natural law theory is neither philosophically popular today nor at the forefront of political discussion about euthanasia, he believes it should be. As he says, “natural law has played an important part in the development of a theory of rights, upon which an argument for the ‘right to die’ can be based. . . [and] its principles are of such a nature that they provide a vehicle for blending legal and moral considerations into one theory, thereby proving to be a particularly useful tool for addressing difficult ethical questions such as those involved with the ‘right to die’” (p.70).

Although Whiting is interested in natural law as political theory, he is much more dedicated to it as a basis for practical justification of “active permissive” euthanasia, where the state explicitly supports the right to die (p.115). He believes that natural law informs Americans’ views of the state, individuals, law, and power in ways of which we may not be fully aware. It is a living part of our political culture. In constitutional law, it is “transformed into an appeal to fundamental law” (p.123). Attributing a dramatic role to it he writes: “in America, natural law has commonly been used as a principle upon which to base revolutionary shifts in political thought pertaining to the appropriate use of state authority” (p.142). Whiting himself is certain that natural law animates values in law and politics today, although he understands that many will be skeptical about his certainty. He speaks directly to those who reject the relevance of natural law. Natural law, he argues, is the foundation for a “consistent legal philosophy upon which to base an acceptable American theory of rights that is consistent with both our past and our idealized visions of the future” (p.143). It is also the moral benchmark for us to appraise our democracy and the relationship between individual and state and the rights of individuals.

According to Whiting, natural law sees certain rights as “pre-political” (p.146) or, in constitutional language, fundamental. They must, therefore, be respected above all else. Linked to the right to privacy, the right to die is a fundamental right, which cannot justly be removed from the individual. The individual is the possessor of the right, and limited government must recognize that possession (pp.148-149). In the case of the right to die, government should nonetheless protect it through regulation; “while autonomous individuals may have a right to terminate their own lives passively, actively, by individual act, or with the assistance of a third party, the government has an obligation to regulate such events for the purposes of guaranteeing that all acts of euthanasia meet minimal standards” (p.162).

This book is primarily an exegesis of natural law and its relevance to the controversies surrounding assisted suicide and euthanasia. Whiting’s claim of a pre-political, fundamental right to die does not directly contend much with US constitutional history that has denied a “right to die” even as it has come to accept a right to refuse medical and [*19] sustenance treatment. Beyond the first chapters, there are only passing references to US law. Whiting is making a moral argument that he hopes will have legal and political purchase. But to have such an impact, Whiting would have to engage more fully than he does the law and politics of these debates.

© Copyright 2006 by the author, Adelaide H. Villmoare.

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A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW

by Mark Tushnet. New York: W.W. Norton, 2005. 416pp. Hardcover. $27.95. ISBN: 0-393-05868-9. Paper (2006). $15.95. ISBN: 0-393-32757-4.

Reviewed by Donald P. Kommers, Joseph and Elizabeth Robbie Professor of Political Science and Professor of Law, Notre Dame Law School, University of Notre Dame

pp.11-16

In A COURT DIVIDED, Mark Tushnet sets out to describe the divisions on the Rehnquist Court and to speculate what these divisions might mean for the future. Its main claim is that the Supreme Court’s liberal-conservative divide under Chief Justice Rehnquist has been overlaid by a more important rupture between what he calls “modern” and “traditional” Republicans, a schism, he argues, that mirrors the split among Republicans in the country at large. The modern Republicans include the late Chief Justice Rehnquist and Justices Scalia and Thomas, whereas Justices Stevens, Souter, Kennedy, and O’Connor fall into the traditional camp. The modernists represent the Goldwater-Reagan branch of the Republican Party – described as latter-day “movement” Republicans – based mainly in the southwest, whereas the traditionalists parallel the northeastern, liberal wing of the Party, although on some issues, as Tushnet notes, Kennedy defies easy categorization. Stevens, by contrast, although described as a “northeastern” Republican, seems more at ease with the Court’s Democratic appointees than with his “Republican” colleagues. In the author’s reckoning, finally, modern and traditional Republicans coincide largely with what he calls, respectively, “social” and “economic” conservatives.

These broad categories are anything but tidy, however. As explanatory devices, the labels “modern” and “traditional” apply, if at all, to a tiny fraction of the Court’s decisions and these are mainly high profile constitutional cases on abortion, gay rights, and some religious liberty issues where so-called “movement” conservatives have dissented from the views of their more “libertarian” colleagues. In the Supreme Court’s most recent term (2004), for example, the designated traditional Republicans split off from their modern counterparts to form the 5-4 majority in only 6 of 18 decisions, but in the overwhelming majority of non-unanimous cases – 49 out of 79 – traditional and modern Republicans were to be found voting together both in majority and dissenting opinions. But even as the author italicizes the relevance of the distinction between kinds of Republicans on the Supreme Court – and in the country – he simultaneously disdains, rightfully, the all-too common tendency of scholars and journalists to shoehorn the justices into fixed ideological cubicles or to label decisional outcomes simplistically as “conservative” or “liberal.” He also questions, again rightfully, the utility of the oft-drawn distinction between judicial “activism” and “restraint,” telling his audience that today “[e]veryone [of the justices] is a judicial activist.” [*12]

As for his audience, Tushnet has written A COURT DIVIDED for the general reader. Accordingly, there is very little in this book’s account of the Rehnquist Court that the constitutional specialist would find surprising, exceptional, or original. (If the book were written for constitutional scholars, it would have dealt with far more than a handful of “hot-button” constitutional cases.) As the author notes early on, this book grows out of his “frustration with most of what constitutional scholars have written for readers who [are not] specialists in constitutional law.” It seeks mainly to explain the divisions on the Rehnquist Court rather than to “cheer” or “boo” – the author’s words – decisional outcomes, whether one would wish to describe them as “liberal” or “conservative,” or even as “right” or “wrong.” The author allows what political scientists discovered long ago, namely, that the Supreme Court follows the general election returns. More specifically, the division within the Rehnquist Court is said to reflect the uneasy alliance within the country’s governing coalition of modern and traditional Republicans, more so, it would appear, than any explanation rooted in ideas, moral principles, or interpretive approaches to constitutional meaning.

Division and fragmentation among the justices are leading themes in much popular writing on the Supreme Court, the kind of writing that revels in explaining judicial outcomes by reference to the backgrounds, experiences, and even the foibles and quirks of particular justices. A COURT DIVIDED fits squarely into this genre. In fact, the biographies of the justices as well as their relationships to one another, including their writing styles, loom large in this account of the Court’s internal divisions. So it is no surprise to find the chapters of this book organized around sensational titles such as “Clarence Thomas’s Constitution” (Chapter 3); Ruth Bader Ginsburg’s Equal Protection Clause” (Chapter 4); “Anthony Kennedy and Gay Rights” (Chapter 5); “Antonin Scalia’s First Amendment” (Chapter 6); “The Religious Right’s Agenda: Symbols and Money” (Chapter 7); and “Big Business’s Constitution” (Chapter 12). Related chapters on abortion (Chapter 8), affirmative action (Chapter 9), federalism (Chapter 10), and property rights (Chapter 11) are equally scintillating for their stress on political divisions within the Court.

After reading these chapters, the general reader may well wonder whether constitutional law is little more than politics by a grander name. There is, of course, something to be said for the view that law is a subset of politics if “politics” is understood in the Aristotelian sense of providing for the common good and maximizing human happiness in accord with reason. (We live, however, in an age of rational calculation and self-indulgent subjectivism.) But when, for example, four or more of the nine justices stake out their own largely personal views about the meaning, say, of the Free Exercise or the Establishment Clause, and do so in language more querulous than persuasive, not to mention their shifting views over time, what possibly could be going on here – from the perspective of general readers – except political decision-making of the most blatant – and embarrassing – kind. One may legitimately wonder whether the rule of law, its clarity and predictability [*13] in particular, is advanced or hindered by the fiercely personalized jurisprudence featured in this book.

A COURT DIVIDED is nonetheless a delectable reading experience. It will appeal to inquisitive readers who relish spicy biographical tidbits interlaced with serious – and razor-sharp – constitutional commentary. Mark Tushnet is one of this country’s leading constitutional scholars and what he has – and has had – to say about the Supreme Court, usually in sparkling prose, is almost always, and in equal measure, insightful and provocative. Each of the topical chapters contain incisive restatements of the Court’s jurisprudence prior to the Rehnquist Court’s emergence. The author’s analysis of later decisions under Chief Justice Rehnquist’s leadership is equally pungent – and accessible to the general reader – although several chapters are unpersuasive in tracing the main political division on the Rehnquist Court to the postulated divide between modern and traditional Republicans. Beyond the inclusion of useful biographical information on each justice who has served on the Rehnquist Court, the general reader gets a vivid and sometimes disquieting portrait of the interpersonal relationships among the justices, including allegedly snappish behavior that has soured the bond of friendship between particular members of the Court, even to the extent, in the author’s account, of influencing judicial outcomes.

Justice Scalia turns out to be the villain in this judicial drama. Scalia is the object of more potshots than any other justice, probably because he is in fact the most colorful person on the Court as well as its sharpest wordsmith. Several of the volleys are unflattering, quotable, and culled from secondary sources infested with the vice of rumor and chitchat. The author himself refers to Scalia’s “failure of good judgment” and his tendency to engage in the “sound bite [reasoning] style of Crossfire.” He also allows – some readers will say gratuitously – that “Antonin Scalia isn’t as smart as he thinks he is.” Many informed observers, among them Justice Scalia’s former clerks, would dissent from these hostile “verdicts.” Nor would they find instructive or illuminating the highly speculative “aside,” drawn from a questionable secondary source, that the key to “Scalia’s affection for rules rather than standards” is “said to be the catechism as taught in the Catholic schools Scalia attended, supplemented by dinner table conversation with his father.” Nor would all impartial observers brand Scalia’s dissents as “venomous.” Of course, this is an easy game to play. Blistering dissents reviling the logic of majority opinions have been scrawled by liberals as well as conservatives. (Consider, for example, Justice Blackmun’s emotion-laden partial dissent in WEBSTER v. REPRODUCTIVE HEALTH SERVICES (1989) or Justice Brennan’s withering sideswipes at the majority opinion in NATIONAL LEAGUE OF CITIES v. USERY (1976). A truly rounded-out portrait of Justice Scalia’s intellectual contributions would embrace an analysis of his strong dissents and concurrences in cases involving separation of powers, religious liberty, criminal procedure, and political patronage, most of which are barely mentioned in this book.

Although A COURT DIVIDED tries not [*14] to “cheer” or “boo” but merely explain decisional outcomes on the Rehnquist Court, the author’s personal views strongly emerge in some chapters. Describing the church-state cases in terms of an “agenda,” for example, implies that those opposed to the religious right do not have an agenda of their own. For most general readers, the linguistically loaded terms “religious right” conjure up an uncomplimentary image of religious conservatives hell-bent on imposing a theocracy on America. But one need not be conservative or religious to conclude that cases such as LEE v. WEISMAN (1992) and WALLACE v. JAFFREE (1985) have inappropriately curtailed the rights of religiously minded people in the United States. Similarly, commentators unaffiliated with the “religious right” – whatever these terms really mean – would have every reason to defend decisions such as MITCHELL v. HELMS (2000) and ZELMAN v. SIMMONS-HARRIS (2002) as correctly decided, reflecting, as they do, the principle of equal justice under law. Indeed, strong liberal arguments can be – and have been – marshaled in support of neutral statutes that do not discriminate against students merely because their parents have chosen to send them to religious schools.

Justice Scalia takes still another beating in the chapter, “Anthony Kennedy and Gay Rights,” particularly in the discussion of LAWRENCE v. TEXAS (2003), in which Kennedy’s opinion is described as “robust” and Scalia’s dissent as “splenetic,” although Kennedy himself takes a hit for his “pomposity” – that is, for his admittedly exalted rhetoric about the mystery of human life – which, unlike Scalia’s spleen, turns out to be “mostly harmless.” In an otherwise equally piquant chapter on the Court’s abortion jurisprudence, Scalia’s bitter dissents against the retention of ROE v. WADE (1973) are attributed to his moral opposition, as a “devout Catholic,” to abortion. Scalia’s dissents, however – in both the gay rights and abortion fields – belie any such thesis, for they are rooted in his federalist and majoritarian commitments, ones incidentally with good pedigree in American constitutional law. At the same time, lest we forget the main thesis of A COURT DIVIDED, the Rehnquist Court’s divisions on gay rights and abortion cannot really be traced to the difference between modern and traditional Republicans. The conflicting judicial positions seem more consonant with the division on these issues among Americans generally.

The chapter entitled “The Federalism Revolution” merits a brief comment. Tushnet notes that “[t]he court’s traditional Republicans believed that the exigencies of the modern economy and the needs and desires of the American people required more of the national government than its modern Republicans did.” Yet, in almost all of the major federalism decisions discussed in this chapter, O’Connor and Kennedy were aligned with Scalia, Rehnquist, and Thomas. And what these justices as a unit have created, however, is far less than a revolution. As the author himself concedes, “[n]ot a single central feature of the New Deal’s regulatory regime was overturned in the revolution, nor were central elements of the Great Society’s program displaced.” But the statement that “no one besides the justices really cares about federalism” is surely mistaken. Many Americans still believe [*15] that the states remain important laboratories of social policy formation and that the principle of subsidiarity associated with a system of state and local governments has more than a little to do with the scope and quality of liberty in America.

Concluding his thoughts, the author wonders whether “the divided Supreme Court [can] become united.” His musings here focus mainly on the probable jurisprudential outcome of a court dominated by conservative or modern Republicans. Such a tribunal, reckons the author, would be inclined to overrule ROE v. WADE, nullify local gay rights laws, overturn America’s commitment to anti-discrimination policies, and invalidate “state constitutional provisions that limit the power of state legislatures to make vouchers available to parents who send their children to religious schools” and perhaps even “require governments to create voucher programs.” Yet these views do not uniformly divide liberals from conservatives or traditional from modern Republicans. In addition, as the author makes clear by his constant reference to what a united conservative court might do, his parade of “horribles” is a matter of sheer speculation. He is quite right to suggest, however, that at the end of the day, the future of the Supreme Court will depend on the politics of judicial nomination and confirmation.

In turning to the politics of judicial recruitment, Tushnet notes that judicial nominations have always been driven by partisan politics. But with the defeat of Robert Bork’s nomination in 1987, the process has taken on the character of ideological warfare inflamed by “interest group mobilization” designed to pressure U.S. Senators into either affirming or rejecting a nominee. Tushnet seems not to deplore this development. But in this reviewer’s estimation – and in that of other advanced constitutional democracies that have declined to follow the American model of judicial selection – extravagant lobbying for and against judicial nominees by ideologically driven interest groups has had a corrupting influence on the process of judicial confirmation. For one thing, Senators surrender their independence when paying heed to interest group demands that often descend into threats of retaliation at the polling booth if they vote the wrong way. For another, judicial nominees surrender their independence when badgered to commit themselves to particular judicial policies or philosophies of constitutional interpretation. The real problem here seems to be a design flaw in the United States Constitution. Foreign models of selecting constitutional court justices suggest two ways out of the current mess; namely, to allow the legislature to choose justices by a two-thirds vote or, alternatively – which would not require a constitutional amendment – to impose term limits on Supreme Court justices.

Finally, and contrary to the thesis of this book, the real problem on the Supreme Court has little to do with the division on the Court between traditional and modern Republicans or, for that matter, between the tribunal’s “liberal” Democrats and “conservative” Republicans. This reviewer is inclined to believe, along with Benjamin Wittes, that the “problem is not the Supreme Court’s politics but the depressing quality of its work.” Writing in THE ATLANTIC MONTHLY (September 2005), [*16] Wittes remarked that what is “most striking is a basic unhappiness with the Court’s quality and integrity – a sense from the left, right, and center alike that the Court blithely ignores its own principles and precedents when they’re inconvenient; rul[ing] on matters not properly before it to reach the result the majority seeks; mistakes facts, and issues shoddy opinions that give insufficient guidance to lower courts.”

ROE v. WADE, authored by a member of the Court described by Jeffrey Rosen as a “failed justice” (THE NEW REPUBLIC, October 6, 2005), is not the least of the Court’s shoddy opinions. THE ECONOMIST, the highly esteemed international magazine that describes itself as socially libertarian, recently described ROE as having “established a cycle of attack and counter-attack that has debased everything that it has touched, especially the judiciary” (December 8, 2005). Perhaps, as Judge Richard A. Posner underscores in his recent “Foreword” to the HARVARD LAW REVIEW’s analysis of the Supreme Court’s 2004 term, the Court is in fact, as Professor Tushnet suggests, little more than a political tribunal, that it “roam[s] free” and “exercis[es] discretionary power as capacious as a legislature’s.” The author of this commendable book would presumably agree with Posner’s view that judicial opinions in cases rooted in the broad language of the Constitution can only be decided “on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”
REFERENCES:
THE ECONOMIST. 2005. “A Heretical Proposal.” (December 8, 2005).

Posner, Richard A. 2005. “Foreword: A Political Court.” 119 HARVARD LAW REVIEW 31-102.

Rosen, Jeffrey. 2005. “Judge Not: What it Takes to be on the Court.” THE NEW REPUBLIC (October 6, 2005).

Wittes, Benjamin. 2005. “Without Precedent.” THE ATLANTIC MONTHLY (September 2005).

CASE REFERENCES:
LAWRENCE v. TEXAS, 539 US 558 (2003).

LEE v. WEISMAN, 505 US 577 (1992).

MITCHELL v. HELMS, 530 US 793 (2000).

NATIONAL LEAGUE OF CITIES v. USERY, 426 US 833 (1976).

ROE v. WADE, 410 US 113 (1973).

WALLACE v. JAFFREE, 472 US 38 (1985).

WEBSTER v. REPRODUCTIVE HEALTH SERVICES, 492 US 490 (1989).

ZELMAN v. SIMMONS-HARRIS, 536 US 639 (2002).

© Copyright 2006 by the author, Donald P. Kommers.

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CRIMINAL CASE 40/61, THE TRIAL OF ADOLF EICHMANN: AN EYEWITNESS ACCOUNT

by Harry Mulisch (trans. by Robert Naborn). Philadelphia, PA: University of Pennsylvania Press, 2005. 208pp. Cloth. $27.50/£18.00. ISBN 0-8122-3861-3.

Reviewed by Rhonda L. Callaway, Department of Political Science, Sam Houston State University, Huntsville, TX 77341. E-mail: rhonda.callaway [at] shsu.edu

pp.7-10

Harry Mulisch, an up-and-coming novelist from the Netherlands, witnessed the trial of Adolf Eichmann in Israel and wrote a series of articles that first appeared in a Dutch weekly, Elseviers Weekblad. The entire collection was then published in 1961 under the title, “De Zaak 40/61: Een Reportage.” In 2005, the University of Pennsylvania Press published the English translation with a new forward by Deborah Dwork. Mulisch provides the reader with a novelist’s perspective on the trial and utilizes literary devices, particularly the use of imagery, to complete his picture of Eichmann. The image that the reader takes away is that the most frightening enemy might be the average man walking down the street or even the face in the mirror. As Mulisch suggests, “We do not have to continue to be wary of criminals; we must continue to be wary of perfectly ordinary people” (p.117).

The articles provide Mulisch an avenue in which to have a dialogue, perhaps more accurately a monologue, regarding the evolution of Eichmann from ordinary man to mass murderer. Mulisch is “less concerned with what he has done than with who he is” (p.111). In fact, this is the ultimate objective of the book. Although the crimes committed by the Nazis have been and will continue to be documented by historians, and the role of the state and the international community when it comes to justice has been and will continue to be debated by academic scholars and legal minds, what interests Mulisch the most is the man himself. In other words, Mulisch addresses the question, who is Adolf Eichmann? Mulisch disagrees with other Dutch journalists and writers who describe Eichmann as “a non-man, a phenomenon of absolute godlessness and non-humanness” (p.43). He asserts that this is too easy of an explanation. Instead, Mulisch searches and ultimately finds literary references as a means to convey the nature of all the key figures.

The first character, the god-like figure, is Adolf Hitler. Heinrich Himmler serves as the true believer, fulfilling the second category. Mulisch can easily find images of Hitler and Himmler in pre-Nazi literature, but has trouble placing Eichmann, whom he describes as the most “horrifying” and the “non-believer,” the “heretic.” He finally pinpoints the characterization of Eichmann as that of a machine. At last, he finds a literary metaphor for Eichmann in the automated doll, Olympia, in E. T. A. Hoffman’s THE SANDMAN. Hitler, in Mulisch’s literary version of the Holocaust, can easily be seen in the character of Coppelius, one of the inventors of Olympia. As Mulisch relates, “Olympia cannot escape his power. She does not [*8] believe in him, but as a robot she has to obey him. And if we decide that in Olympia we are facing Eichmann, then we suddenly see him in a long tradition” of other literary figures ranging from the “Iron Fly of Regiomontanus, the Iron Man of Roger Bacon, the Artificial Man of Albertus Magnus . . . And further still: to the automats of the Pythagoreans”(pp.116-117). Much like Olympia, Eichmann operates under the philosophy that “an order is an order.” Eichmann is quoted as stating that “My whole life I was used to being obedient, from the nursery until May 8, 1945” (p.56). And in Eichmann’s world, the order was an eternal one, one he stood by until Hitler was gone.

Eichmann is what Mulisch refers to as a “symbol of progress.” By this he means that Eichmann exhibits the characteristics of a new age, an age where orders and technology combine to create the potential for both good and evil. In Eichmann, we see the evil associated with the combination of orders and technology, which is then facilitated by an oath. We see a man driven, perhaps even obsessed, by perfection, regardless of the task. In fact, Mulisch seems convinced the Eichmann was not so much obsessed with the murder of the Jews, rather the order to murder the Jews. When pondering why Eichmann did not commit suicide like many others, Mulisch suggests that he could not because he had not been “ordered to do so.” So, why does Eichmann become a peaceful citizen in Argentina? According to Mulisch, “for exactly the same reason that he behaved like an intimidating murderer in Europe: this is what was expected of him” (p.119).

Was Eichmann anti-Semitic? In an ironic twist, Mulisch points out that Eichmann looked Jewish. In retrospect, “nothing indicates that he simply hated the Jews” (p.18), and in fact he regularly interacted within the Jewish community while in Vienna. He studied all things Jewish, even becoming a Jewish expert. To demonstrate the obsessive personality of Eichmann, Mulish describes a visit Eichmann made to Palestine in 1937. Returning from that visit, Eichmann was quoted as stating that “I did see enough to be very impressed by what the Jewish colonists were building upon their land. I admired their desperate will to live . . . In the years that followed I often said to Jews with whom I had dealings, that, had I been a Jew, I would have been a fanatical Zionist . . . I would have been the most ardent Zionist imaginable” (p.22). So, it does not seem that ideology is a driving factor. Regardless of where Eichmann found himself, he was going to perfect whatever he was engaged in—much like a machine.

His ability to be invisible, behind the scene adds to the mechanical image. Mulisch is effective in describing the ability of Eichmann to simply fade to black: “before the war he was an invisible SD clerk. During the war he was an invisible operating SS officer. After the war he was an invisible, hiding Nazi. During the past year he was an invisible prisoner in Israel . . . And now Eichmann has suddenly become visible” (p.36). However, the image of Eichmann as a machine becomes blurred with each passing day of the trial. He becomes more human. This monster that Mulisch manages to portray as a machine is quite human. In fact, the image of Eichmann at the trial is one of contrasts. On the one hand, we have a [*9] picture in our mind’s eye of the archetypical Nazi, perhaps the black image depicted on the WWII anti-Nazi propaganda posters. My own vision of the Holocaust will always consist of images in black and white, not color. Mulisch queried those who remember Eichmann from the camps, how much he changed, and “all they could remember was a hat, shiny boots, and a pair of square riding pants” (p.41). Yet, the person in the defendant’s box does not seem all that intimidating. “He turns out to be human: a somewhat grubby man with a cold, wearing glasses” (p.37). From Mulisch’s view, “if they had put an empty SS uniform in the cage, with an SS hat hovering above it, they would have had a defendant of greater reality. When they arrested him in Argentina and put an SS hat on to identify him, the moment of truth was nearer than now, when the breathing, digesting, sneezing man appears in the courtroom” (p.41). In reality, according to Mulisch, Eichmann was the everyman . . . and that is the frightening part. In the end, Mulisch concludes that while Eichmann was an ordinary man, in fact human – he was “the smallest human being – with that portrait we are getting closest to the likeness. And he was able to be so small because the technology was so great: the railways, the administration, the gas chambers, the crematoriums. This small man with his great technology is the one we are fighting. With the arrival of the H-bomb, man has become even smaller . . . Here lies the difficulty in our fight against nuclear weapons” (p.161). It is with technology that humans can be machines.

Throughout the work, Mulisch relies on imagery, a useful tool given the graphic nature of the subject. The descriptions of Israel, the Holocaust, of the city of Berlin during and after the war, and of Eichmann provide the reader with constant and lasting images. Several examples here will suffice. This use of imagery comes through in two chapters, “Jerusalem Diary I” and “Jerusalem Diary II,” which chronicle not only the events at the trial, but Mulisch’s travels through Israel. He depicts Israel as human, an entity that is growing. In describing the Sea of Galilee, Mulisch writes, “warm and calm it lies in the deep, against the rugged mountains of Syria on the other side. On this motionless water the God walked, and the first thing I see, once we are down there, is a man on water-skis behind a motor boat. Again, I am the only one who begins to laugh” (p.61). In describing Eichmann, Mulisch provides a series of photos of Eichmann. The first photograph is divided in half and each is a reproduced and matched against itself to create two additional photos. One photo is the two left-sides put together and the other photo contains the right-side of the face in its mirror image. One photo portrays an average, perhaps banal middle-aged man. The second image is that of a monster or as Mulisch describes, a beast. Thus, we have the “two faces of Eichmann,” one good, the other evil. This emphasis on imagery plays a major role in providing a portrait of Eichmann, at least from the perspective of Mulisch, the novelist and witness.

So, how is this offering important to social scientists and other academics? What should we gather from this novelist’s perspective? One might even be tempted to ask, why translate and republish, why now? An unfortunate familiar phrase comes to mind—crimes [*10] against humanity and war crimes tribunals. It seems that the lessons of World War II were short-lived, if ever learned at all. The crimes against humanity in Rwanda, Kosovo, and Iraq have produced their own trials, with key figures such as Jean Kambanda, Slobodan Milosevic, and Saddam Hussein as the latest to sit in judgment. Each episode conjures up unique images, much like the unique images of the Holocaust. In Rwanda, a primitive genocide accomplished with machetes, in the former Balkans one has eerie visual reminders of the Holocaust, and in Iraq there are the images of men, women and children gassed to death. Reading Mulisch now might provide insight into the character of those currently on trial.

In the area of international law and justice, Mulisch examines and questions the validity of the trial, particularly the authority of Israel to actually conduct the trial. The Eichmann trial differed from the Nuremberg trials in the same manner that the Saddam Hussein trial is different than the war crimes tribunal for Rwanda and the Former Yugoslavia. The Eichmann trial was and Hussein trial is conducted by one state, not the international community. Yet, in both cases, the international community is watching. Mulisch expressed some of the same concerns as there are today. Will the proceeding be a fair one? Are the witnesses providing actual witness testimony or providing images of horror that can not be easily tied to one particular person? Should it be the international community conducting the trials?

In the end, we can talk about the causes of war, the role of differing capabilities among and between states, and the role of the international community in meting out justice, but in reality war and war crimes boil down to the actions of individuals. John Stoessinger, in WHY STATES GO TO WAR, insists that the role of the individual is key in the decision to go to war. The same can be said about war crimes. Ultimately, what Mulisch offers the social scientist is a dose of reality. Preiswerk (1981) suggested that perhaps we should study international relations as if people mattered. I would guess that Mulish would agree, as he provides a human, dare I say, normative perspective to the study of war crimes.

REFERENCES:
Hoffman, Ernst T. A. 1817/1885. THE SANDMAN. New York. Charles Scribner’s Sons.

Preiswerk, Roy. 1981. “Could We Study International Relations as if People Really Mattered?” in Gordon Feller, Sherle R Schwenninger, Diane Singerman (eds). PEACE AND WORLD ORDER STUDIES: A CURRICULUM GUIDE. New York: Institute for World Order.

Stoessinger, John George. 1998. WHY STATES GO TO WAR. New York: St. Martins.

© Copyright 2006 by the author, Rhonda L. Callaway.

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DISABLING INTERPRETATIONS: THE AMERICANS WITH DISABILITIES ACT IN FEDERAL COURT

by Susan Gluck Mezey. Pittsburgh, PA: University of Pittsburgh Press, 2005. 248pp. Paper. $27.95. ISBN: 0-8229-5879-1.

Reviewed by Staci L. Beavers, Political Science Department, California State University San Marcos. Email: sbeavers [at] csusm.edu

pp.4-6

With DISABLING INTERPRETATIONS: THE AMERICANS WITH DISABILITIES ACT IN FEDERAL COURT, political scientist Susan Gluck Mezey provides a well organized, thorough review of the federal judiciary’s interpretations of 1990’s Americans with Disabilities Act (ADA). Her thesis, that the federal courts have narrowed the scope and potential impact of this once-promising civil rights legislation through “‘textualist’” readings of the statute (p.8), will not be easily challenged, and her analysis of cases from across the federal judiciary provides both qualitative and quantitative evidence that the ADA’s impact has been hampered by a federal judiciary intent on limiting the law’s meaning and applicability.

The book, which seeks to “bridg[e] the gap between law and public policy,” (p.5), is well-organized. The legislation’s major components are briefly spelled out in the Introduction: Title I focuses on employment discrimination against persons with disabilities; Title II addresses “the delivery of state and local government services, including public transportation” (p.2); Title III addresses public accommodations; and Title IV deals with telecommunications (p.2).

Chapter 2’s discussion of “Disability Rights as Civil Rights” provides an excellent introduction to the topic, situating disability rights firmly in the framework of prior civil rights litigation and legislation and providing significant legislative history regarding the ADA’s ultimate passage in 1990. Mezey gives substantial attention to what may be the most significant disability rights laws prior to passage of the ADA: the Rehabilitation Act, first passed in 1973, and the Education of All Handicapped Children Act, first passed in 1975 and now known as the Individuals with Disabilities Education Act (pp.11-18). In addition, drawing upon work by several scholars, such as Katzman (1986), Mezey strives to make clear that the Supreme Court’s apparent antipathy to disability rights dates back at least to interpretations of the Rehabilitation Act (e.g., SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS, 1979) (pp.18-19).

Chapter 2 is followed sequentially by chapters exploring federal litigation regarding Titles I, II, and III of the ADA; in each area, Mezey successfully demonstrates how this potentially expansive, ground-breaking civil rights litigation has been restricted by the Supreme Court, and by lower-level federal judges. Chapters 3, 4, and 5 contain qualitative as well as basic quantitative data to demonstrate just how well defendants – i.e., alleged violators [*5] of the ADA – have fared in this field of litigation.

Chapter 6 is devoted to “new federalism” jurisprudence, focusing specifically on that litigation which has broadened the states’ Eleventh Amendment sovereign immunity protection. While giving attention to TENNESSEE v. LANE (2004), in which the Supreme Court allowed a Title II suit against the State of Tennessee for not guaranteeing sufficient “physical access to courtrooms” (p.164), Mezey clearly demonstrates how BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA v. GARRETT (2001), a Title I decision denying a state employee the right to sue her employer for monetary damages (pp.150-153), fits into the broader field of the Court’s sovereign immunity doctrine. As she states the matter, “Whatever its motivation, in advancing the principle of state sovereignty, frequently by enhancing the immunity defense offered by the Eleventh Amendment, the Court has diminished Congress’s authority to enforce federal civil rights laws,” including the ADA (p.142).

Fundamentally, Mezey blames restrictive judicial interpretations of the ADA on the “textualist” jurisprudence of several Supreme Court justices as well as numerous lower court judges. She asserts that such judges have understood a law intended to be “broadly applied” (p.3) in an unnecessarily restrictive way by focusing closely on the language in the statute and negating more expansive interpretations suggested by the bill’s legislative history, including floor speeches and committee documents created during passage. The result has been limited readings of the conditions that qualify as “disabilities” and actions that constitute violations of the civil rights of the disabled. For example, though disability rights supporters have scored some victories – such as the Supreme Court’s declaration in BRAGDON v. ABBOTT (1998) that HIV-positive status qualifies for ADA coverage (pp.115-117) – plaintiffs asserting ADA violations have fared particularly poorly in Title I (employment) cases, with defendants being told that they do not have a “disability” under ADA and thus may not benefit from the law’s protections (e.g., SUTTON v. UNITED AIR LINES, 1999) (pp.48-53). And, although the federal courts have been more open to plaintiffs’ arguments in cases addressing Titles II and III, even these victories have been tempered by the courts’ limited readings of the legislation (pp.108, 115).

Mezey does acknowledge Congress’ need to bear some of the blame for the judiciary’s interpretation of the ADA by its allowances for possible defenses in the text of the legislation itself: “unlike the civil rights laws of the 1960s and 1970s, the ADA explicitly allows cost and reasonableness to be interposed as defenses in litigation. Consequently, the rights guaranteed in the law are balanced against an unspecified monetary and social cost so that discrimination is permissible if the price for relief is too great” (p.166). Additionally, Congress has yet to override the federal courts’ statutory interpretations by passing more expansively worded disability rights statutes to protect rights denied in the federal courts (p.58).

Mezey marshals a range of sources in her analysis. Although judicial opinions from [*6] across the federal courts provide the bulk of her evidence, she also presents data from congressional debates and interviews with numerous disability rights supporters, including several who urged the enactment of the ADA (p.5), to support her contention that the federal courts have rendered the Act more limited than intended by its congressional supporters.

The most significant weakness of the book is probably that it presents few surprises, and many of its arguments largely confirm previous findings by other scholars. For example, most of Chapter 3’s quantitative data are drawn primarily from previously published sources, including Colker (2001). In succeeding chapters, Mezey acknowledges that her quantitative data generally support and update the findings of previous authors.

On the whole, DISABLING INTERPRETATIONS presents a thorough picture of the breadth, scope, and tenor of the federal judiciary’s approach to this landmark legislation. Mezey successfully makes the case that the ADA has been read narrowly by federal judges at all levels, resulting in rights for the disabled that fall short of the mark intended by members of Congress when they passed the statute.

REFERENCES:
Colker, Ruth. 2001. “Winning and Losing under the Americans with Disabilities Act.” 62 OHIO STATE LAW JOURNAL 239-78.

Katzman, Robert. 1986. INSTITUTIONAL DISABILITY. Washington, DC: Brookings Institution.

CASE REFERENCES:
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA v. GARRETT, 531 U.S. 356 (2001).

BRAGDON v. ABBOTT, 524 U.S. 624 (1998).

SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS, 442 U.S. 397 (1979).

SUTTON v. UNITED AIRLINES, 527 U.S. 471 (1999).

TENNESSEE v. LANE, 541 U.S. 509 (2004).

© Copyright 2006 by the author, Staci L. Beavers.

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THE LOGIC OF CONSTITUTIONAL RIGHTS

by Eric Heinze. Burlington, VT: Ashgate Publishing Company, 2005. 122pp. Hardback. $99.95/£55.00. ISBN: 0-7546-2538-9.

Reviewed by Georg Vanberg, Department of Political Science, University of North Carolina at Chapel Hill. E-mail: gvanberg [at] unc.edu

pp.1-3

Eric Heinze’s THE LOGIC OF CONSTITUTIONAL RIGHTS is a short book with a well-defined, narrow purpose. Heinze sets out “to chart the structure of arguments” (p.73) about constitutional rights and to demonstrate that all such arguments have a common logical foundation. Specifically, Heinze argues that claims about “asserted” constitutional rights always involve claims about “harms” and about “consent,” and about the extent to which harm and consent are relevant/irrelevant or sufficient/insufficient for resolving a particular rights claim. Once the structure of these “generic” arguments has been identified, Heinze devotes a major effort of the book to translating the arguments into the language of symbolic logic, thereby underscoring the common “logic of constitutional rights.”

The book is organized into five brief chapters. Chapter 1 provides some background definitions and distinctions. Importantly, it lays the groundwork for a key feature of the book. Because the focus of the analysis is on the logical structure of arguments, Heinze treats key concepts as “placeholders” that are free of substantive content. Thus, he sidesteps arguments about what constitutes a “constitutional right” or “harm” (pp.14, 39). Instead, he adopts a convention of framing discussions around the “assertion” of constitutional rights (or harms) by agents involved in a dispute. This feature – which is intimately linked to the aim of the book – eliminates the need to decide thorny questions regarding the substantive content of these terms.

Chapter 2 is devoted to identifying the types of “agents” that may be involved in disputes about constitutional rights. Heinze divides these agents into “parties” (typically the litigants) who make claims about constitutional rights in a case, and into “actors” (who may or may not be the same as the litigants) who have interests that are affected by the recognition, restriction, or denial of an asserted constitutional right. Actors, in turn, can be subdivided into those who would be harmed by the failure to recognize an asserted right (e.g., indigent patients that fail in their attempt to have a right to “free health care” recognized), as well as those who may be harmed by the exercise of a right that is recognized (e.g., individuals harmed by the revelations published by a constitutionally protected free press). Finally, actors do not need to be identifiable individuals; “society” can also be an actor that is allegedly harmed by the exercise of an asserted right. Along with this classification, Heinze develops a vocabulary for translating verbal claims about agents into succinct symbolic statements. [*2]

In Chapter 3, Heinze turns to the concept of “harm.” Once again, the chapter is organized around a number of distinctions that are then translated into symbolic notation. Heinze first distinguishes two kinds of harm: harm that is caused to actor A by the denial or restriction of an asserted constitutional right (e.g., inability to procure an abortion by restrictions of abortion rights), and harm that is suffered by actor B as a result of A’s exercise of an asserted constitutional right (e.g., emotional distress suffered by a husband after an abortion procured without spousal consent). In addition to this basic distinction, Heinze develops the concepts of “relevance” and “sufficiency.” Parties can assert that harms are either relevant to the recognition or restriction of an asserted right, or that they are irrelevant. Where harms are judged to be relevant, they may be either sufficient or insufficient to warrant recognition or restriction of an asserted right.

Chapter 4 is devoted to the other key concept: Consent. As in previous chapters, the main work of the chapter consists in drawing several distinctions that are then presented in symbolic notation. The first distinction is between actual consent that is given by an actor (“consent in fact”), and consent that is legally recognized, whether or not it has been given in fact (“consent in law”). This distinction creates a fourfold typology: Actual consent that is recognized in law (e.g., a professional boxer consents to being “battered” in the course of a bout and cannot sue), actual consent that is not recognized in law (e.g., a minor consenting to sexual acts), consent that is not in fact given, but that is still recognized in law (e.g., medical procedures performed on an unconscious accident victim), and consent that is not in fact given and not recognized in law (e.g., most criminal acts). Moreover, Heinze asserts, the notion of “consent” can be applied to “society” as well as to individuals through the notion of “public consent.” The remainder of the chapter is devoted to an examination of the relationship between the concepts of harm and consent. Specifically, Heinze argues that the concepts of the relevance and the sufficiency of harm create a connection between harm and consent, such that every argument about harm implies a corollary assertion about consent (and vice versa.)

In the last chapter, Heinze uses the various distinctions and typologies created in the first four chapters to identify several “background theories” that underlie specific arguments in support of recognition or restriction of asserted constitutional rights. For example, Heinze argues that “volitional liberalism” is a theory that grounds arguments about constitutional rights in the presence or absence of consent by individuals (p.89). Similarly, he classifies arguments that rest on a government’s claim to determine (independent of actual individual consent or a direct popular referendum) whether certain conduct poses sufficient “harm” to society to justify restrictions on the exercise of an asserted right as a “theory of constitutional democracy” (p.99). The book ends with a classification scheme (p.103) identifying the six “background theories” that, according to Heinze, exhaust the logical structure of arguments about constitutional rights. [*3]

The strength of this book, and its main contribution, lies in the careful distinctions Heinze draws in identifying the logical structure of the arguments that can be made in debates over constitutional rights (assuming that the actors involved have the desire to be coherent). The book lays out these alternative arguments clearly, it shows the relationship between competing claims, and provides numerous, well-chosen examples. Ironically, the use of symbolic notation (which serves primarily as an abbreviated form of presenting an argument rather than for the derivation of novel conclusions from axioms) often hinders, rather than eases this exposition by requiring the reader to familiarize herself with notation for distinctions that are already clear in prose form. Nevertheless, the book provides a useful, well-organized, and efficient analysis of the logic of rights claims. For law (or even undergraduate) classes on constitutional law that emphasize the logic of legal arguments, this book would make for useful supplementary reading.

It is less clear that the book has direct significance for broader scholarly debates. The distinctions that Heinze draws – while undoubtedly useful in clarifying arguments – are hardly controversial or new. (Once concepts like “harm” and “right” are emptied of substantive content, most scholars would probably agree that arguments about constitutional rights can be framed in the language of harm and consent.) Moreover, Heinze is so disciplined in sticking to his purpose (the book is barely 100 pages long), that he does not engage broader substantive issues or demonstrate the consequences (if any) of his analysis for scholars who are interested in the normative, explanatory, and predictive questions that he sidesteps by treating the key concepts as “empty placeholders.” In short, this book reminds us forcefully of logical distinctions involved in constitutional rights claims, but it fails to convince the reader that the analysis is relevant for broader issues of constitutionalism.

© Copyright 2006 by the author, Georg Vanberg.

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