NATIONAL AND REGIONAL PARLIAMENTS IN THE EUROPEAN CONSTITUTIONAL ORDER

by Philipp Kiiver (ed). Groningen: Europa Law Publishing, 2006. 132pp. Paper. €36.00/$58.00. ISBN: 9076871639.

Reviewed by Mark Welton, Department of Law, United States Military Academy. Email: Mark.Welton [at] usma.edu.

pp.998-1001

The rejection of the proposed European Union constitution by French and Dutch voters in 2005 gave the EU member states reason to pause and reflect on the speed and direction of deeper integration within the EU. Nevertheless, the demise of this “grand” constitutional project has not halted the daily integrative processes that continue to characterize the European social, political, and legal landscape. The eight well-written and accessible essays that comprise this book, edited by Philipp Kiiver, attest to the increasingly important role of national, local and regional legislatures in the context of European integration, a role that was previously often overlooked but, as demonstrated by this book, clearly deserves attention.

The proposed EU constitution confirmed the importance of subsidiarity as an integral part of the European project. That idea, officially expressed in the Treaty on European Union, that rules and actions within the EU should be taken at the lowest feasible level (as close to the citizens as possible), is now understood to require greater recognition of and participation by national, local and regional legislative bodies in EU activities, as compared with governmental bodies, and especially in matters regarding proposed directives, regulations, and other legislation. How this can be achieved within the various constitutional and political frameworks of the current (and in one case potential) member states, and some of the practical issues that arise from it, constitutes the main theme of the book.

Examination of four states – the United Kingdom, Belgium, the Netherlands, and Croatia – comprise the core of this essentially comparative study. First, however, Kiiver’s introductory essay describes three themes that characterize the analysis of each of these states. These are the importance of the regional dimension of European parliamentarism, with multiple links between law-making institutions of member states (including sub-national parliaments) and EU decision-making entities; recognizing that national parliamentary participation in EU decision-making often extends beyond the “traditional” role of demanding domestic ministerial accountability; and understanding the European treaty-drafting practice must be reassessed to account for the variety of national and sub-national structures within the member states. Overall, these themes are adhered to and elaborated on in the subsequent analyses.

Three contributors look at the role of the UK parliaments and their relationship to the EU. Adam Cygen emphasizes that holding government ministers accountable for their EU-level decisions has been the primary concern of the UK Parliament, leading to an emphasis on [*999] securing documents in a timely manner and enforcing adequate scrutiny procedures before decisions are made. While the effect of parliamentary scrutiny on increased governmental accountability for EU matters is difficult to assess, Cygen concludes that it has required greater discipline by government ministers, has resulted in increased transparency of the EU legislative process for British citizens, and has in fact led to changes in the process or content of proposed legislation.

Building on this theme of accountability, Gordon Heggie’s essay on the Scottish Parliament explains that, with no formal national role for that body in EU affairs after devolution, the idea of “partnership” has been crucial to ensuring timely receipt from London of information on proposed EU initiatives, as well as permitting input by the Scottish Parliament regarding EU issues both through the UK Parliament and within networks of other sub-national and regional bodies outside the UK. He concludes that this partnership arrangement has worked reasonably well; the Scottish committees responsible for EU matters have generally received adequate and timely information from the national government. Moreover, while direct Scottish parliamentary links to the EU have been informal and quite limited, new links with other legislative bodies have been formed and work effectively. For example, successful ties have been forged with the Flemish, Catalan and certain German Land parliaments to discuss EU issues, especially within the framework of the Trans-European Network of Regional Parliamentary European Committees (NORPEC), a forum designed for the exchange of ideas and sharing of information. Overall, and despite the continued need for more streamlined procedures, the Scottish Parliament has been satisfied with its ability to provide meaningful input into EU decision-making at the national and regional levels.

In her short rejoinder to these two articles, Caitríona Carter generally concurs with the findings of the previous two authors. However, she suggests there is a need for new research areas and strategies to understand better how changing parliamentary politics affects subsidiarity, and whether that principle is advanced by the changes taking place within the EU and at the national and sub-national levels. In particular, deeper investigation into the variety of factors (such as resources and organizational capacities) that can affect sub-national and regional parliaments’ abilities to engage with EU matters would be useful.

According to Wouter Pas, in contrast to the UK, Belgium presents a case of extreme federalism, in which various sub-national governmental entities possess extensive exclusive powers, both domestically and internationally. Fortunately for the reader, his short introduction to Belgian federalism clarifies the complex interrelationships between the national, regional, and community legislative bodies and their powers, noting that there is no doctrine of federal supremacy, and only limited areas of concurrent powers. The system operates on the basis of an elaborate [*1000] pattern of cooperation agreements, which weakens the role of the national and other parliaments in EU-level affairs. At the same time, Belgian federalism presents problems for the EU, as evidenced by the EU constitutional treaty process, which required revision in the treaty language to accommodate the co-equal status of the national and subnational Belgian parliaments. It remains to be seen whether proposed internal cooperation agreements that were drafted in contemplation of the EU constitutional treaty will be effective on the EU level in the future.

Olaf Tans explains why the Dutch, normally considered among the most internationally-inclined and pro-EU people in Europe, voted to reject the constitutional treaty by focusing on the overlooked role of the Dutch Parliament in the EU constitutional process. The parliament reflected popular disappointment over several outcomes from the drafting process. First, a number of provisions seemed to favor big-state dominance within the EU. Second, there had long been public indifference to the EU and its activities that gradually transformed into “negative” feelings, and, despite parliamentary and governmental support, was reflected in the negative outcome of the subsequent popular referendum on the constitutional treaty. On the other hand, the process did energize the parliament to assert its role as “watchdog” over the two key principles of subsidiarity and proportionality, and there was extensive agreement across party lines on the value of these efforts. Overall, the negative outcome of the treaty process in the Netherlands has had the positive outcome of raising critical awareness of the EU both among the populace and within the parliament.

In his valuable analysis of a state not yet a member of the EU, Siniša Rodin discusses two historically-rooted practices by the Croatian parliament – the ‘authentic interpretation of laws,” and the stringent control of governmental action – that must be changed before Croatia will be able successfully to integrate into EU decision-making structures and processes. The former gives the parliament the power to interpret laws, which can be retroactive, and is binding on courts (even in pending cases). This rather extreme form of parliamentary supremacy poses potential conflicts with the interpretation of EU legislation by the European Court of Justice, and raises questions concerning the direct applicability of EU legislation in Croatia. The second practice, limited control by parliament over the exercise of the government’s external relations powers, is not itself an impediment to Croatian membership in the EU. However, the constitutional scope of the government’s powers in external and European matters requires better definition, while the parliament’s supervision over executive activities in such matters also needs clarification and expansion. This will require not only new legislation, but education, discussion, and communication within Croatian society, in order to change the normative and historical roots of the current parliamentary practices.

The concluding contribution by Leonard Besselink offers two paradigms for [*1001] understanding and shaping the role of national parliaments within the European constitutional order. The first and now prevalent one is a “multilevel’ paradigm, in which each level of responsibility and power – local, regional, national, and European – is distinct and exclusive. Within this paradigm, the scrutiny exercised by parliaments over proposed European legislation limits the power of those parliaments to the national level. EU decision-making is thus constrained along national rather than partisan or cross-boundary lines. The second paradigm may be labeled “polycentric” and encompasses a European constitutional order comprised not only of the EU institutions but the member states as well, including their parliaments. Besselink suggests that the constitutional treaty should be read as promoting this second paradigm, which consequently should increase the democratic legitimacy and accountability of the EU. Adopting a polycentric paradigm should lead to future research focusing on the potential for greater involvement of national and other parliaments in EU decision-making, and improved mechanisms for scrutiny and other types of involvement in EU activities by the various parliaments of the member states.

It is evident from these essays that there is a wide variety of informal and formal relationships and arrangements between the EU and the national and sub-national legislatures, as well as within the constitutional frameworks of the various current and prospective member states. With a renewed focus on accountability, institutional operations, and subsidiarity that was reflected in the EU draft constitution, which did not disappear after its rejection, it is evident that national, sub-national and regional legislative bodies within the EU will assume an increasingly important role in EU activities. This book provides valuable perspectives on this subject, and should be read by anyone interested in the future of European integration.

© Copyright 2006 by the author, Mark Welton.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

MADISON’S MANAGERS: PUBLIC ADMINISTRATION AND THE CONSTITUTION

by Anthony M. Bertelli and Laurence E. Lynn Jr. Baltimore: Johns Hopkins University Press. 2006. 224pp. Cloth $60.00. ISBN: 0801882621. Paper $25.00. ISBN: 0801883199.

Reviewed by Daniel Levin, Department of Political Science, University of Utah. Email: daniel.levin [at] poli-sci.utah.edu.

pp.994-997

Public administration is the Rodney Dangerfield of political science. Getting no respect within the larger discipline, public administration is increasingly taught in professional masters and doctoral programs that are institutionally and formally independent of political science departments at their institutions. Even when an active public administration program remains within a political science department, it has substantial difficulty reaching out to the other fields which seem less interested in public administration’s theoretical and methodological offerings.

The single most important, and single most thankless, task of public administration theory is providing accounts of the proper roles of bureaucracies and bureaucrats. This is because public administration theory is solidly founded on something known as “the public interest.” Scholars in American politics, like summer camp veterans sent on one snipe hunt too many, have become so wary of sightings of this alleged “public interest” that they now dismiss its existence altogether, seemingly embarrassed by the whole thing. Nonetheless, the happy campers of public administration continue their search. Sometimes, in addition to the “public interest,” they declare their quarry to be “responsibility,” “accountability,” or “judgment.”

In MADISON’S MANAGERS, Anthony Bertelli and Laurence Lynn attempt to connect contemporary theories of public management with several older traditions within the public administration literature. Most pertinent to readers of this review, they ground their own theoretical approach in the ability of public managers to negotiate their way through the constitutional structure of the United States as “managerial responsibility depends, in a constitutional sense, on official respect for the separation of powers and commitment to specific public service values” (p.x). In doing so, they revisit many of the earlier arguments about the nature of administrative law. Their work pays relatively little attention to either constitutional doctrine or the role of the courts in public administration. But, for those readers of this review interested in questions of administrative law, or who teach constitutional law in a public administration program, the text is worthwhile as a review of administrative theory, a useful reinterpretation of administrative law previous to World War II and the Administrative Procedure Act of 1946, and as a promising, but limited, attempt to rethink theories of legislative and administrative delegation.

Like most academic works, MADISON’S MANAGERS includes both critique and positive theory. In their [*995] critical mode, Bertelli and Lynn attempt to reverse what they view as a series of missteps in administrative theory. They are interested in restoring “traditional” public administration theory, largely dating to the pre-World War II era, to a place of honor. Such theory began as a reformist discourse in response to old-style patronage and the congressional dominance model popular in the late 19th century. Traditional theory encouraged more systematic thought about the nature of delegation, valued scientific approaches to social problems, and, in its earliest forms, distinguished administration from politics; the later traditional school accepted a larger role for political values in administration. But, most pertinent to Bertelli and Lynn’s larger project, the traditional model was largely interested in locating public administration in relation to Congress and the Executive, with the courts an occasional but important presence; administrative law was vital to this understanding.

Bertelli and Lynn argue that public administration theory took a wrong turn after World War II. Theorists, such as Dwight Waldo, Herbert Simon, and Robert Dahl, took particular aim at the traditional school’s view of administration and politics as separate and at its pretensions to scientific management. The modern approach was less respectful of constitutional democracy, preferring a larger role for citizen and interest group participation in administrative decision-making and attempting to understand how administrators make decisions from their own organizational context. The more formal forms of political control external to administrative agencies, those often emphasized in constitutional and administrative law, moved into the background. Indeed, they claim that, in public administration, “administrative law is often regarded as something of a nuisance . . . the role of courts can go entirely unacknowledged . . . with possibly a passing reference to the distractions of institutional reform lawsuits” (p.10). Bertelli and Lynn are concerned that “the current and future state of the field neglect not only the role of administrative law, but also the implications of the separation of powers for democratic governance” (p.73).

This modern school’s neglect of administrative law is sufficiently serious in their eyes that they spend much of a chapter arguing that administrative law is, indeed, relevant to public administration. This chapter, their fourth, will be the most relevant for most readers of this review. Bertelli and Lynn provide a useful history of both academic and judicial approaches to delegation doctrine through the 20th century. But, as theorists of public administration, the lessons they draw differ somewhat from those of political scientists who focus on institutions. For instance, they read the Supreme Court’s decision in CHEVRON v. NATURAL RESOURCES DEFENSE COUNCIL (1984) as perpetuating the “congressional dominance” model of control over administrative agencies, and that it allows the “monster” of administrative discretion “to be unleashed only when Congress is too disinterested, too divided, or too inarticulate to show in statutory language that it cares about what an [*996] agency does” (p.99). Many other authors, largely concerned with congressional inability to steer agency choices, view CHEVRON in a very different light, as enabling agency discretion whenever Congress has not been particularly clear, and seeing such lack of clarity as the norm, rather than an exception. At the same time, Bertelli and Lynn are also concerned that “presidential dominance” over administrators has also increased. In their view, the problem lies in insufficient discretion for public managers.

All of the above is background to Bertelli and Lynn’s construction of their positive theory. They argue that “responsibility is the most important unifying idea in the traditional literature of public administration” (p. 6), that “the theoretical significance and practical meaning of managerial responsibility remain underdeveloped” (p.6), that managerial responsibility involves “judgment, balance, rationality, and accountability” (p.12), and that all these “fully comport with constitutional requirements for the exercise of the managerial discretion that is inevitable in a separation of powers state” (p.12). Much of the book’s positive theory is as vague as this summary sounds, and is largely indifferent to the structural relationships between the constitutional branches, an odd turn of events after their previous insistence on the importance of constitutional norms. They are much beholden to game theory for their approach to the Constitution, which is largely treated as a problem of “mechanism design.” If there is one lesson they draw from the Constitution, it is that of separation of powers; they wish for public administrators to have areas of discretion in which they can exercise the professional and moral virtues invoked in their own theory of “managerial responsibility.” Management, not representation or “ordered liberty,” is the fundamental norm of the Constitution as read by Bertelli and Lynn.

Their constitutional theory centers on this set of propositions: “the American electorate’s problem is to select those persons to staff the administrative state who have some set of characteristics that will make the overall social welfare function implementable,” and that “the solution to that problem – the creation of an institutional mechanism characterized by judgment, balance, rationality and accountability – forms the basis for the administrative state and the default rules for delegations and political control mechanisms generally.” Accepting these propositions, “the primacy of the personnel function in the institution of public management then becomes clear” (p.125). This can be aided, in their approach, by a well-designed personnel system that consistently rewards administrators with a strong “public service motivation” and which avoids approaches, such as performance based pay, less compatible with such a design (pp.130-131). Ultimately, Bertelli and Lynn argue that judgment, balance, rationality, and accountability – their “four aspects of managerial responsibility” – “represent the basis of constitutional government as it relates to public administration” (p.141). None of these is closely connected to specific provisions of the Constitution, and the [*997] argument is more broadly normative and based in public administration theory than in constitutional theory. It is a conclusion which may satisfy theorists of public administration, but will likely leave most scholars working in the fields of constitutional theory and administrative law with more questions than they began with.


REFERENCES:

CHEVRON v. NATURAL RESOURCES DEFENSE COUNCIL, 476 U.S. 837 (1984).

© Copyright 2006 by the author, Daniel Levin.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

IMMIGRANT AMERICA: A PORTRAIT

by Alejandro Portes and Rubén G. Rumbaut. Berkeley: University of California Press, 2006. 496pp. Hardcover. $55.00/£35.95. ISBN: 9780520242838. Paper $21.95/£13.95. ISBN: 9780520250419.

Reviewed by Kevin R. Johnson, School of Law, University of California, Davis. Email: krjohnson [at] ucdavis.edu.

pp.989-993

Although it perhaps is cliché for a review to characterize a book in this way, IMMIGRANT AMERICA: A PORTRAIT truly is a “must read” for any serious student of immigration law and policy. This volume is chock full of facts and information about immigration based on Census 2000, a wealth of current research studies on immigrants, and insightful analysis by two most influential sociologists. The third edition is substantially revised, expanded, and updated from the second edition published a decade ago. Alejandro Portes and Rubén Rumbaut have done an excellent job to ensure that the book is as up-to-date and complete as possible.

At a most fundamental level, IMMIGRANT AMERICA dismantles popular stereotypes about immigrants to the United States, revealing just how complex a social phenomenon immigration in fact is and just how diverse the immigrant communities in this country are. If nothing else, the book unquestionably proves that immigration and immigrants are far from one-dimensional and that claims to the contrary by both pro- and anti-immigrant advocates are misguided.

The first chapter begins by telling nine stories that challenge the popular stereotype that all immigrants are poor, young, and uneducated Mexicans. The reader learns about, among others, a Cuban businessman, Indian medical school professor, Mexican auto repair shop owner, Filipino nurse (previously a doctor in his homeland), Haitian hospital worker, and a superstar Taiwanese medical student. Besides humanizing immigrants, this introduction highlights the richness of the immigrant experience and the heterogeneity of the US immigrant community.

Chapter 2 offers information about contemporary immigrants and their motivation for coming to this country. Although “many Americans believe that . . . immigrants . . . are uniformly poor and uneducated” (p.13), IMMIGRANT AMERICA unquestionably demonstrates that this simply is not true. “Contemporary immigration features a bewildering variety of origins, return patterns, and modes of adaptation to American society. Never before has the United States received immigrants from so many countries, from such different social and economic backgrounds, and for so many reasons” (p.13). The chapter summarizes the different reasons, ways of immigrating under US immigration laws, and employment patterns of migrants to the United States.

Chapter 3 examines trends of immigrant settlement and mobility. Portes and Rumbaut contend that a number of factors besides wage differentials [*990] influence immigration decisions. Many of the world’s poorest countries – some nations in Africa come to mind – send few immigrants to the United States. Family and friends in this country, class, and geographic proximity to the United States play important roles in the decision to migrate. This chapter further provides data on settlement patterns. Paradoxically, migrants tend to be concentrated in a few areas but, at the same time, are spread out among all fifty states. Census 2000 reported a foreign-born population of more than 31 million people in the United States, with California the home of 30 percent of them; New York and Texas were next on the list of receiving states (p.43). Different groups tend to settle in different states and localities. For example, more than 40 percent of immigrants from Mexico, which contributes almost 30 percent of all lawful immigrants, reside in California, while roughly 60 percent of the nearly 700,000 Dominicans have settled in New York (p.46). Although immigrants tend to be concentrated in cities, rural communities, including in the South and Midwest, have seen enclaves emerge in response to labor demands. Unlike some restrictionists, however, Portes and Rumbaut are not alarmed by these distribution trends; enclaves can provide much-needed support to new arrivals and members of the second-generation seeking to adapt to American social life.

Chapter 4 discusses the occupational and economic experiences of immigrants in the United States and provides data on education, labor force participation, occupational status, and income. Nearly a quarter of immigrants are college graduates, a figure which is almost identical to that for the native-born population. Education rates, however, vary greatly by nationality, with, for example, Chinese, Korean, Vietnamese, and Cuban immigrants who came in early waves having higher indicia of academic performance than persons of Mexican ancestry (p.76). In 2000, 61 percent of the foreign-born population in the United States participated in the labor force, a figure slightly below the national average. There again is variation among immigrants from different countries, with Laotian and Cambodian rates below 60 percent. Employment visas brought a little more than 3 percent of Mexican immigrants to the United States, while family visas brought a whopping 63 percent. Compare these numbers with immigrants from India, with nearly 60 percent entering on employment visas and nearly 38 percent on family visas (p.81). Incomes vary widely too, with Mexico, Central American, and Caribbean immigrants below average. The initial reception of immigrants in the United States, as measured by such things as eligibility for public benefits – for example, refugees are eligible while undocumented immigrants generally are not – affects the ease of economic adaptation.

Chapter 5 discusses identity, citizenship, and political participation. Portes and Rumbaut address Samuel Huntington’s (2004) claim that Hispanic immigrants are undermining the national identity of the United States (pp.117-118). Unlike past immigrant generations, transnational identities are common among immigrants today, in large part [*991] because of the ease of travel and frequent exchange of goods and services between nations. But even immigrants with transnational identities assimilate and develop deep affinities and loyalties to the United States. For that reason, Portes and Rumbaut contend that restrictionist fears of a separatist movement among Mexican-Americans are greatly exaggerated (p.139). As with other characteristics of the immigrant cohort, rates of naturalization, which have changed significantly in recent years, vary by nation of origin. Immigrants from Canada and Mexico, for example, naturalize at below average rates, while immigrants from Taiwan and the former Soviet Union are above average (p.145). A fascinating discussion of the history of Mexican-American (pp.148-153) and Cuban American politics (pp.153-157) reveals that, despite differences, their group experiences share telling similarities: (1) both groups mobilized in reaction to discriminatory events; and (2) mobilizations along ethnic lines to this point have generally trumped class concerns (p.157).

Chapter 6 considers immigration, mental health, and the acculturation of immigrants into US society. Feelings of alienation and isolation have been common, both among Europeans of the early twentieth century and contemporary immigrants. Ultimately, social class plays a pivotal role in psychological adjustment. However, assimilation is not all good. For example, despite class improvements, Mexican immigrant women have one-fifth the rate of alcohol abuse and dependence of US born women of Mexican ancestry; alcohol problems thus increased for this group with time in the United States (p.190). “Among Latin American immigrants, the least educated groups had the lowest incarceration rates: Salvadorans and Guatemalans . . . and Mexicans” (p.195). Unfortunately, however, Americanization – or downward assimilation – has meant greater involvement with the criminal justice system among the second generation.

Restrictionists often complain vehemently that immigrants fail to learn English and are not committed to obtaining an education. Chapter 7 reviews the voluminous literature on English language acquisition in the United States. The data make crystal clear that English is far from becoming any less dominant. Census data show that more than 95 percent of the residents in one-half of all counties are English monolinguals, and that a vast majority of the population, more than 215 million, speak only English (p.219). Nearly two-thirds of children immigrants ultimately learn English. (p.224). IMMIGRANT AMERICA reviews the research literature and finds that (1) “The vast majority of first-generation immigrants who come to the United States as children speak English well;” (2) “Bilingualism is most common among second-generation children who grow up in immigrant households and speak a foreign language at home but who are almost all proficient in English;” (3) “English-only is the predominant pattern by the third generation;” and (4) “What third-generation bilingualism exists is found [*992] especially in border communities” (p.230).

Chapter 8 considers the experiences of children of immigrants. Not surprisingly, the human capital and social class of parents significantly affects the second generation’s prospects. Educational outcomes vary by nationality. Chinese and Filipino immigrants and parents have relatively few high school dropouts and high proportions of college graduates. Mexican, Cambodian, and Laotian immigrants are at the other extreme (p.249). Racial discrimination, bifurcation of the US labor market and its stark inequalities, and drug use and street gangs as an alternative lifestyle in cities, make successful adaptation to life in America more difficult for the second generation. Some children of immigrants experience assimilation problems because of their proximity to gangs and other criminal elements. In addition, the popular treatment of all persons of Mexican ancestry as “illegal aliens,” along with other forms of discrimination, makes it difficult for children of immigrants to assimilate.

Chapter 9, which was prepared in collaboration with Patricia Fernández-Kelly and William Haller, analyzes the importance of religion. Religion proves significant in the development of ethnic communities and can be associated with positive adaptive outcomes, such as lower incarceration rates. A recent survey found that, due in part to immigration, there is a vanishing Protestant majority in the United States, with Catholicism remaining at a stable 25 percent of the population, while non-Christian religions, such as Buddhism, Hinduism, and Islam are increasing. IMMIGRANT AMERICA thoughtfully contrasts the Mexican (pp.331-335) and Muslim immigrant experiences with religion (pp.335-339).

Religion among immigrants is a rich topic for analysis. Further study is warranted of the efforts of Mormons, Evangelical Christians, and other religions to convert immigrants. As Portes and Rumbaut acknowledge, many children of immigrants move away from their parents’ religion. Similarly, research is needed on the role of religion in recent immigration debates. Many religious leaders sided with immigrants in the public discussion of immigration reform in 2006.

Chapter 10 addresses the million dollar question facing the United States at the dawn of the new millennium. The United States in recent years engaged in a robust national debate over immigration reform. The U.S. House of Representatives in 2005 passed a punitive bill that focused primarily on border enforcement and provoked mass marches in protest in cities across the country. The Senate later embraced a “comprehensive” reform measure, which included increased border enforcement, a path to legalization for undocumented immigrants, and a temporary worker program.

Unfortunately, many reform proposals, such as border fences, treat immigration as an individual decision and fail to address the larger social forces contributing to immigration to the United States. Portes and Rumbaut [*993] observe that geopolitical events in which the US government was involved, affecting Mexico, China, the Philippines, El Salvador, South Korea and Vietnam, the top six countries sending legal immigrants, fuel immigration. In addition, research shows that social – family and employer – networks also contribute to migration to the United States. To this point, piecemeal reform focused on border enforcement that does not address broader immigration forces, has failed, but they have had devastating human costs, such as thousands of deaths on the US/Mexico border.

The chapter ends with a proposal for a temporary worker program capped at one million per year with a path to legalization. The authors leave open the status of the estimated 12 million undocumented immigrants currently in the United States. Ultimately, the reform proposal is not fully satisfying in light of the information about immigration and integration of immigrants they present earlier in the book. This is less of a criticism and more of a suggestion for another book focusing on immigration reform as well as more effective ways of facilitating the integration into American social life.

In conclusion, IMMIGRANT AMERICA offers a full and fair portrait of the population of immigrants in the contemporary United States. It deserves a wide readership and true consideration in the debate over reform of immigration laws. Put simply, Alejandro Portes and Rubén Rumbaut’s important book adds much need factual information and thoughtful analysis to one of the most pressing public policy issues of our time.


REFERENCES:

Huntington, Samuel. 2004. WHO ARE WE? THE CHALLENGES TO AMERICA’S NATIONAL IDENTITY. New York: Simon & Schuster.

© Copyright 2006 by the author, Kevin R. Johnson.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN’S SUPREME COURT JOURNEY

by Linda Greenhouse. New York: Times Books – Henry Holt and Company, 2005. 288pp. Hardcover. $25.00. ISBN: 080507791X. Paperback. $14.00. ISBN: 0805080570.

Reviewed by Joseph F. Kobylka, Department of Political Science, Southern Methodist University. Email: jkobylka [at] mail.smu.edu.

pp.983-988

Linda Greenhouse is one of the preeminent journalists covering the Supreme Court. She has held this beat since 1978, and her coverage of its decisions for the NEW YORK TIMES is notable for its clarity, concision, and insight. Such is her prominence that Judge Laurence Silberman of the Court of Appeals for the District of Columbia has suggested that some Justices move to the political left to reap the benefits of the “Greenhouse Effect”: favorable reporting on their jurisprudential “growth.”1 Regardless of the accuracy of his judgment, it is clear that Greenhouse enjoys a supreme status among journalists who cover the Supreme Court. Along with NPR’s Nina Totenberg, she was granted early access to the papers of former Justice Harry A. Blackmun by the Blackmun family. Her investigation initially led to two lengthy pieces in the TIMES when the papers opened to the public (4 and 5 March 2004). With BECOMING JUSTICE BLACKMUN, Greenhouse takes her keen reportorial skills into the realm of judicial biography. What she fashions in its 251 pages is an informed, nuanced, and incomplete picture of a Justice who, in her telling, clearly grew to “become” Justice Blackmun.

“Judicial biography” is too strong a phrase to describe what Greenhouse accomplishes in this nice, neat, narrative. Her book is not so much a biography of Blackmun or his time on the Court as it is a series of largely chronologically organized essays on some politically salient elements of Blackmun’s tenure, viewed through a lens ground by close investigation of the nearly 1,600 containers of papers that Blackmun left to the Library of Congress. Drawing nearly exclusively from them, Greenhouse’s story of Blackmun on the Court revolves around twin themes that interweave and organize much of the book: Blackmun’s relationship with Warren Burger and his tussles with ROE v. WADE (1973) and its aftermath. Greenhouse does alight on cases in other areas of law, but she does so largely in so far as they touch on her organizing themes. As a result, this is not a systematic examination of either Blackmun’s tenure as a Justice or the record of the Courts on which he served. To be sure, she makes no claims to have written a “conventional biography or a comprehensive survey of a judicial career” (p.xi). Rather, she argues that BECOMING JUSTICE BLACKMUN is a “coherent narrative of a consequential life that . . . left its mark not only on the law but on American society” (p.xi). In this, she is successful to a degree. We know more about Blackmun the man and the Justice after reading BECOMING, but we are left hanging on the issues outside of Greenhouse’s focus, the [*984] motivations of other Justices in carrying on the shared task of collegial judging, and the enduring impact – if any – of Blackmun on the corpus of constitutional law.

At its outset, Greenhouse’s gloss on Blackmun follows the contours of conventional biography. The first fifth of the book examines aspects of his youth in Minnesota, his transition to Harvard for college and law school, his return to Minnesota to clerk for Judge John B. Sanborn of the Court of Appeals for the Eighth Circuit, his tenure at the firm of Junell, Driscoll, Fletcher, Dorsey, and Baker, his nearly ten years as resident counsel at the Mayo Clinic, and his tenure – ironically replacing Sanborn – as an Eighth Circuit Court of Appeals Judge. It is in this part of the book that Blackmun’s friendship with Warren Burger is first developed.

One of Greenhouse’s real strengths is her seeming capacity to feel the Blackmun – Burger relationship and convey that feeling to her readers. She nicely chronicles the depth of their early friendship, and insightfully probes the tensions that, as they served together on the Court, led to its souring. Though she does not attempt to identify a silver bullet that brought their close camaraderie to an end, she largely attributes its demise to the stresses growing out of case deliberations and decisions. Because of the book’s recurring focus on abortion, it would be easy to tie the breakdown to Burger’s tepid support for, and ultimate rejection of, Roe. He ultimately renounced ROE in THORNBURGH v. AMERICAN COLLEGE OF OBSTETRICIANS (1986), but even in the beginning Burger delayed circulation of his separate concurrence in ROE – and the announcement of its decision – forcing the case to come down after Nixon’s second inauguration. Given ROE’s importance to Blackmun, and the fact that Burger assigned the opinion to him, Burger’s vacillations on abortion obviously galled Blackmun and contributed to increased tension between them. However, Greenhouse notes other cases that broadened the growing distance between the two men: U.S. v. NIXON (1974) saw, as long ago reported in THE BRETHREN, Blackmun as a co-conspirator in opposition to Burger’s draft majority opinion; BATES v. ARIZONA (1977), in which Blackmun’s majority opinion pulled the plug on prohibitions on advertising by attorneys, much to Burger’s chagrin; COKER v. GEORGIA (1977), where Blackmun first drifted from voting with Burger in a capital punishment case; REGENTS v. BAKKE (1978), which saw an ill Blackmun vote late in the hour and against Burger’s position on affirmative action; and I.N.S. v. CHADHA (1983), in which Blackmun joined a chorus jeering Burger for holding the case over for reargument.

The case Greenhouse uses to cap and crystallize the decay between Burger and his one-time “best man” is DARDEN v. WAINWRIGHT (1986). This decision came down in the last year of Burger’s tenure and its paper circulated through the Court at the same time as the contentious THORNBURGH opinions. Estrangement is too mild a descriptor for the state of the relationship of these once [*985] close friends by this point, and Greenhouse’s recounting of the path DARDEN wound through the Court paints this picture vividly. More was at work here than the abuse of habeas corpus that Burger perceived and Blackmun’s argument for a full airing of the issues embedded in the case. Deep personal suspicion and distrust characterized the relationship at this point. However, there are points at which Greenhouse strains to document the deterioration – for example, she highlights that Blackmun “tersely noted” Burger’s death in his annual “chronology” (p.244), but fails to note that everything in his chronologies was tersely noted, including the entry that followed Burger’s death, “Wisconsin” referring to his much anticipated, month long, post-term vacation – but the substantive decay is there and she captures it in a remarkably even-handed, insightful and compassionate manner. This is no trashing of Burger. Indeed, if anything she downplays the pomposity and self-importance that marked Burger’s letters to Blackmun once Burger went to Washington in 1953. In the end, the proximity of life on the Court drove these two highly insecure men apart.

It is in her treatment of Blackmun’s tenure on the Supreme Court that Greenhouse’s book most diverges from a standard judicial biography. It is not quite “all abortion, all the time,” but it is more that than it is a broad ranging assessment of the tenor of his tenure. ROE is not the only case at which she looks, of course, but it is the prism through which she examines Blackmun’s development as a Justice. It is a logical focal point: ROE and its progeny are central to Blackmun’s development. Chapters 4 and 8 focus solely on these cases, as do significant portions of 5 and 6. Finally, in the major interpretive argument of the book, Greenhouse ties his abortion evolution to his becoming an “improbable icon” in Chapter 9. There she focuses on gender discrimination cases and comes to the conclusion that Blackmun – whose ROE right, she correctly notes, belonged as much to the attending physician as it did to the woman – became a “feminist icon” because of his “full embrace of women’s rights” by the end of his tenure (p.207). She returns to this theme in her concluding chapter.

The essence of the “Blackmun becoming a feminist” argument is this: Blackmun’s position on abortion evolved from a relational (doctor-woman) right to a woman’s right in the crucible formed by the breakdown of his relationship with Burger, the Court’s pulling away from his understanding of ROE (beginning in the funding cases of the 1976 Term), and the Reagan and Bush I appointments and arguments to the Court. With the feminization of his conception of the abortion right came a new awareness of (and support for) women in discrimination cases generally.

Assuming for a moment that Blackmun became something of a born again feminist, Greenhouse severely under-represents the impact of the clerks who worked with him during these years. I am not talking about the Garrow (2004) thesis here – the notion that Blackmun was caught in the undertow of his clerks – but the more modest notion that he [*986] learned something from them and vice-versa. In particular, the 1985 Term – during which BOWERS v. HARDWICK and THORNBURGH were decided – saw Pamela Karlan, now a professor of law at Stanford, contribute mightily to the way Blackmun thought about and explained the privacy right. It was she who successfully chided Blackmun to take out references to physicians in discussing the abortion decision in THORNBURGH, and who framed the decisional-spatial matrix that rooted – really for the first time – Blackmun’s conception of the privacy right in something other than the “Ninth Amendment or Fourteenth Amendment or whatever” approach he inaugurated in ROE (Kobylka, 2005). In so far as Blackmun’s subsequent approach to and opinions in this area worked from the base developed in BOWERS and THORNBURGH, Karlan’s impact on him was significant.

This shift in the right’s conceptualization was important and novel for Blackmun, but Greenhouse’s claim that it made him a feminist hangs on a slender thread. First, he never seriously reconsidered the standard of review that applies to sex discrimination under the Fourteenth Amendment, and reserving the possibility (in a footnote in JE.B. v. ALABAMA) of the Court’s doing so does not make it so (p.227). Second, the Court simply did not treat many pure gender discrimination cases in the last few years of his tenure. Greenhouse notes his opinion for the Court in U.A.W. v. JOHNSON CONTROLS, but that case was decided 9-0 against the company, with only Antonin Scalia not joining any of Blackmun’s analysis. She then points to his majority opinion in J.E.B (1994) striking sex-based preemptory challenges, a case in which William Rehnquist, Clarence Thomas, and Scalia dissented. That’s it. The near unanimity of JOHNSON CONTROLS and the straightforward application of BATSON v. KENTUCKY (1986) in J.E.B. suggest that Blackmun may not have traveled as far down the feminist path, outside the abortion context, as Greenhouse contends. The problem is the paucity of data; there simply are not enough cases to test this conclusion adequately. It is equally plausible that feminists, looking for bright spots on a Court dimming on many of their concerns, embraced Blackmun as one of their own more out of despair than demonstration, and that, late in life, he reveled rhetorically in that embrace.

All of this said, Greenhouse’s recounting of the abortion cases – as well as the other cases she canvasses – is thorough and insightful. Unencumbered by citations to the work of others who have mined this vein, she essentially channels Blackmun. Her approach conveys a good feel for the substantive ebb and flow of case deliberations, interspersed with quotes from draft opinions, memoranda, and materials – e.g., Blackmun’s bench memos, conference notes, in-chambers communications, and letters – that did not circulate outside his chambers. She provides a clear rendering of Blackmun’s mind as he worked through what he increasingly thought of as his area of constitutional law. Greenhouse also gives her readers a window on aspects of Blackmun’s slow march from FURMAN v. GEORGIA (1972) to CALLINS v. [*987] COLLINS (1994) and his ultimate rejection not of capital punishment itself (a la Brennan and Marshall), but of its ability to be meted out in a way that insured what he came to see as constitutional fairness. However, because of the Blackmun-centric perspective of her chronicling of the CALLINS announcement that he “shall no longer tinker with the machinery of death” (p.178), Greenhouse fails to note the legal and institutional irrelevance of this public disavowal. No mention is made of Scalia’s withering rejoinder – “He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us – the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern” – or the fact that Blackmun’s dissent had no effect on the policy he was rejecting. In a way, the dissent can be viewed metaphorically as an empty pronouncement from an increasingly detached and ineffectual Justice. This is not how Greenhouse portrays it, in part because her focus is tightly on Blackmun and not on the Court.

In BECOMING JUSTICE BLACKMUN, Linda Greenhouse reviews Blackmun’s papers with the eye of a smart and seasoned reporter with a feel for hot-button topics and the skill of a master story teller. She does not tell a general story of Blackmun’s life on the Court, but she was not really trying to do so. She does not produce a scholarly study, nor does she pointedly inform her analysis with the scholarly analysis of others. Those looking for an examination of the dynamic interplay of the Justices and the motivations that fueled their collegial project will not find it here. Nor will they find a broad canvass of the constitutional work of the Burger and early Rehnquist Courts: First Amendment issues get exceedingly short shrift, criminal law questions are glossed over, and most civil rights litigation is ignored. It is not that Greenhouse is unaware of developments in these areas of law, as her stellar reporting over most of Blackmun’s tenure makes clear. Rather, it is that these pieces of the Court’s story do not fit well into the puzzle of the particular Blackmun story that she assembles. It is not a story that lauds Blackmun for his “leftward” jurisprudential drift, though it is not one at war with it. Rather, it is more a story about elements of Blackmun’s intersection with high-profile constitutional issues during a politically contentious period framed, in part, by his decision in ROE and its fallout. In its use of Blackmun’s papers to illuminate these elements of the Court’s work, Greenhouse paints a lively and informed partial picture of Blackmun’s development on the Court. A fuller portrait of his career – and one which accounts more self-consciously for his role on and significance to the Courts on which he served – awaits future canvasses.

1. Greenhouse’s purported “liberal bias” – the underpinning of the Silberman swipe – became an issue in the summer of 2006. In receiving the Radcliffe Institute Medal at Harvard on 7 June, she made news with a speech entitled “A Bridge Over Troubled Water.” In this address, she noted “the extent to which our government had turned its energy and attention away from [*988] upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” (Greenhouse, 2006).


REFERENCES:

Garrow, David. 2004. “The Brains Behind Blackmun.” LEGAL AFFAIRS (May/June.).

Greenhouse, Linda. 2006. “A Bridge Over Troubled Waters.” Speech at Harvard University, 7 June 2006. (http://www.radcliffe.edu/alumnae/reunions/4and9/greenhouse.php).

Kobylka, Joseph. 2005. “Tales From the Blackmun Papers: A Fuller Appreciation of Harry Blackmun’s Judicial Legacy.” 70 MISSOURI LAW REVIEW 1075-1132.

Woodward, Bob, and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon & Schuster.


CASE REFERENCES:

BATES v. STATE BAR OF ARIZONA, 433 U.S. 350 (1977).

BATSON v. KENTUCKY, 476 U.S. 79 (1986).

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

COKER v. GEORGIA, 433 U.S. 584 (1977).

CALLINS v. COLLINS, 510 U.S. 1141 (1994).

DARDEN v. WAINWRIGHT, 473 U.S. 928 (1985).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

I.N.S. v. CHADHA, 462 U.S. 919 (1983).

J.E.B. v. ALABAMA, 511 U.S. 127 (1994).

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

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

THORNBURGH v. AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, 476 U.S. 747 (1986).

U.A.W. v. JOHNSON CONTROLS, 499 U.S. 187 (1991).

U.S. v. NIXON, 418 U.S. 683 (1974).

© Copyright 2006 by the author, Joseph F. Kobylka.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

THE NEW CIVIL RIGHTS RESEARCH: A CONSTITUTIVE APPROACH

by Benjamin Fleury-Steiner and Laura Beth Nielsen (eds). Aldershot, UK and Burlington, VT: Ashgate Publishing, 2006. 270pp. Hardback. $99.95/£60.00. ISBN: 0754624404.

Reviewed by Daniel C. Kramer, Political Science-Economics- Philosophy Department, College of Staten Island CUNY. Email: kramer-d [at] mail.csi.cuny.edu.

pp.979-982

This book is a collection of essays showing, according to the Introduction by the editors, Benjamin Fleury-Steiner and Laura Beth Nielsen, “How . . . individuals experience their legal rights in action, as opposed to “how judicial decisions impact social change” (emphasis in original). These essays describe in various contexts the views, oft-times fuzzy, sometimes clear, sometimes internally inconsistent, that different groups of “disadvantaged individuals” have of their rights. That is, these essays adumbrate the “legal consciousness” of these groups, which, the editors rightly emphasize, is influenced by a whole host of factors – e.g., place, organizational type, position in a hierarchy, and cultural values. Most of the essays are based on a series of interviews with individuals drawn from the particular group whose rights-awareness they are studying. Most of the authors do not claim that their interviewees are a representative sample of the relevant group, which of course precludes any generalizations about the views of the whole group. Nonetheless, their case studies are fascinating and sometimes produce surprising results. They are thus well worth a read – especially by political scientists (including graduate students) and law professors who concentrate on the activities and decisions of courts and judges. (However, the book not infrequently employs technical social science language and thus probably is not suited for an undergraduate course.)

Chapter 1, by Idit Kostiner, discusses the legal consciousness of “30 activists for educational justice,” a phrase not well defined. Some of these men and women are most interested in getting more resources for disadvantaged students; another subgroup feels that the school system “perpetuates” the oppression of minority students and thus avers that what is most needed is to get these students to fight for their needs themselves; and a third holds that the main problem with the system is the “systematic racism” of teachers in the public schools. Chapter 2, by Judith Taylor, is a study of six women who served as “Title IX” Coordinators in an unnamed urban school district over a 20-year period. Four of the six did not consider themselves feminists when they were hired, but three of the four began identifying themselves this way by the time they left the job. The two who viewed themselves as belonging to the women’s movement when first employed became more attached to it as a result of their work experiences, which included their colleagues’ stereotyping of and hostility toward them and their inability to get the resources they needed to do their work well. [*980]

Chapter 3, by Catherine Albiston, emphasizes the reactions of their colleagues when workers took leaves to which they were entitled under the federal Family and Medical Leave Act of 1993 (FMLA), which requires some employers to grant their workers unpaid leave for a period of up to 12 weeks to take care of family or medical crises such as pregnancy, birth of a child, or serious illness of a family member. Not surprisingly, given the traditional view that the man is the family’s primary breadwinner, their employers and co-workers were much less antagonistic to females than to males who took FMLA leave. However, upon their return, even the women were viewed as “slackers”! The most striking finding of Chapter 4, Kimberly Richman’s study of members and former members of gay and lesbian families, was that gays and lesbians do differ on some “gay family” issues, including the question of what should be the visitation and child custody rights of the non-biological, non-adoptive parent when the couple breaks up. They were split over the Supreme Court’s 2000 (the essay wrongly says “1999”) decision of TROXEL v. GRANVILLE, allowing a parent to limit visitations of a grandparent. Some gays feared that this result would make it more difficult for a non-biological parent to obtain visitation or custody rights; while others rejoiced that it would stop a grandparent from taking his/her grandchild away from a gay parent. Chapter 5, by Anna-Maria Marshall, shows that the women employees of an unnamed university did not often complain to anyone about the sexual harassment they suffered at work even though the institution had circulated a “Written Policy” against such harassment. And Elizabeth Hoffman’s Chapter 6 indicates that male drivers and dispatchers in a cab company harassed their female colleagues whom they rightly or wrongly identified as lesbian, less than they did their female colleagues whom they believed “straight.” The men, by the way, were aware that harassment was outlawed by both law and company rules and could cost them their jobs. Some men asserted that an incident a woman believed was harassment in fact could not justly be labeled such.

Frank Rudy Cooper’s Chapter 7 is the only essay in the volume that does not rely on interviews. It argues that the 1968 Supreme Court case of TERRY v. OHIO allowing police to “stop and frisk” individuals on “reasonable suspicion” even though “probable cause” was lacking, had, at least in New York City, what the author terms a “seesaw” effect. When Rudolph Giuliani became Mayor in 1994, many whites, even liberal whites, felt that crime had increased in their communities. Thus, the culture of the times permitted the Giuliani administration to employ “aggressive policing tactics,” including using TERRY stops disproportionately against minorities. Then the culture turned against aggressive policing, partly because officers shot an innocent West African, Amadou Diallo, 41 times, killing him, and an officer stationed in Brooklyn anally raped a prisoner with the handle of a toilet plunger. (Minor correction here – the surname of the policeman who aided the rapist was “Schwarz,” not “Schwartz.”) Because of this turn of the tide, the police largely [*981] ignored attacks on women at the 2000 Puerto Rican Day parade. Chapter 8, by Benjamin Fleury-Steiner and Jessica Hodge, emphasizes the adverse effects on the prisoners’ rights movement of the federal Prison Litigation and Reform Act of 1996 (PLRA) which, among other things, requires prisoners filing suit to pay a filing fee and exhaust all prison administrative remedies before going to court, and also caps the fees their attorneys can receive. (Prisoners’ rights organizations were funded in part from these fees.) The PLRA was especially hard on HIV-infected prisoners, some of whom died while the remedies were being exhausted.

Chapters 9, by Hadar Aviram, and 10, by Jerome Pelisse, are from abroad. The former, from Israel, describes the varied reactions to prison of Israeli military reservists, mostly very-well educated, who refused for reasons of conscience to serve in the West Bank territories. Some silently mocked their jailers and felt that they were playing “games” with them; others, some of whom were social scientists, spent their time comparing the reality of prison life against the views they had formed of it from television and cinema; unexpectedly, many enjoyed their prison experience, considering it a “break from their daily lives.” The Pelisse essay portrays the impact on various workers in several firms of the French law limiting the workweek to 35 hours. Some lower-level employees were unhappy with the way the law was put into effect. Frequently the supervisor decided the contours of the new work schedule, which was often not the most convenient for a particular worker. White collar employees were given more power to decide for themselves how to allocate the reduction in hours mandated by the law. Finally, back to the United States, in Chapter 11 Laura Beth Nielsen points out that “place” plays an important role in assigning the meaning one gives to certain types of speech and in determining whether that speech should form the basis of a legal action. In a well-chosen example, she notes that a remark from a man to a woman such as “hey baby, looking good,” can be considered a compliment by a woman in a singles bar, “troubling but not frightening” by one walking in a park during the day, frightening if walking on a deserted street at night, and perhaps actionable if it and other sexist comments are uttered by her boss.

Remember that the last three words of the title of the volume under review are “A Constitutive Approach.” Unfortunately, this phrase is clearly defined neither in the editors’ Introduction nor in Michael McCann’s lengthy Preface (which precedes the Introduction). From putting McCann’s definition of “constitutive power” in this volume alongside his discussion of “constitutive” legal discourses in RIGHTS AT WORK (1994, at p.6) and the last couple of chapters of that book, one can conclude that he and the editors of THE NEW CIVIL RIGHTS RESEARCH feel that one situation where the legal consciousness of the members of a group is “constitutive” is where it encourages them to try to expand their rights, informally through negotiation and/or formally through filing administrative complaints or lawsuits. Interestingly, very few essays in this book portray much “constitutive” [*982] legal consciousness of this sort. The one that does so most vividly is that on the FMLA, where workers used their knowledge of the measure both to negotiate leaves for themselves and to explain to their colleagues that taking leave is not “slacking off.” But few of the harassed female university employees whom Chapter 5 discusses bothered to file a complaint with their supervisor, let alone a formal grievance or a lawsuit. Likewise, most of the lower level French employees discussed in Chapter 10 did not put up a great deal of resistance to their employers’ taking it upon themselves to decide how the reduced 35 hour workweek of their subordinates should be structured.

Several minor complaints. The book is divided into three parts – “Rights in Practice,” “Contested Rights,” and “The Future of Rights Research.” This segregation is misleading. The chapters in ALL the parts are mostly descriptions of the present-day legal consciousness of the various groups studied; while the rights of the groups covered in the first section are no less “contested” than those of the men and women covered in the second (and third) sections. The fact that the last chapter of Part I and the first of Part II both deal with workplace-related sexual harassment is further evidence that there is no real difference among the parts, Next, the editors’ claim in their Introduction – a claim reflected in their book’s title – that the approach of their contributors is “new,” in that it focuses on rights from the “bottom up,” is overstated. To take just one example, McCann’s RIGHTS AT WORK (1994) had a similar focus.

As McCann correctly points out in his Preface to THE NEW CIVIL RIGHTS RESEARCH, researchers interested in “constitutive” legal consciousness ought to study that of the “haves” as well as that of the “have-nots.” It cannot be said that lawyers, business people, affirmative action opponents, and the like, are not conscious of their rights or do not act on them. In fact, they feel that their rights are being eaten away by the rights given to the disadvantaged and in many cases attempt to re-conquer their own by limiting those of the latter. (A parenthetical note: It may be that the people most aware of their rights under the law are professional criminals! See Jackson 1972). THE NEW CIVIL RIGHTS RESEARCH would have been even more informative had it included a couple of essays on “elite” legal consciousness. But despite this and my other cavils, this book is a fine effort.


REFERENCES:

Jackson, Bruce. 1972. A THIEF’S PRIMER. New Brunswick: Transaction Books.

McCann, Michael. 1994. RIGHTS AT WORK. Chicago: University of Chicago Press.


CASE REFERENCES:

TERRY v. OHIO, 392 U.S. 1 (1968).

TROXEL v. GRANVILLE, 530 U.S. 57 (2000).

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

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

THE RELATIONSHIP RIGHTS OF CHILDREN

by James G. Dwyer. New York and Cambridge: Cambridge University Press, 2006. 378pp. Hardback. $55.00/£30.00. ISBN: 0521862248. e-book format. $44.00. ISBN: 0511218060

Reviewed by Catherine J. Ross, The George Washington University Law School. Email: cross [at] law.gwu.edu.

pp.975-978

THE RELATIONSHIP RIGHTS OF CHILDREN is ambitious to say the least. It aims to develop a “general theory” about the principles that should govern the state’s decisions about “children’s personal relationships.” The book focuses on a cluster of issues that have attracted a great deal of attention in the courts, the legislatures and from scholars over the last few decades: the role the state plays in defining parenthood and distributing children among potential parents, with some attention to classic third-party relationship rights such as those of grandparents. As a proponent of children’s rights, I valued James Dwyer’s earlier work, which was grounded in the real world. In this book, however, he engages in a philosophical thought experiment that takes a laudable democratic impulse to protect children and turns it into nothing less than a call for an all-powerful therapeutic state that intervenes beginning at birth.

At first glance, this volume promises to enhance the work of the many scholars and judges who have grappled with the difficult choices that arise in custody disputes between parents or when the state intervenes to remove children. Few would quarrel with Dwyer’s insistence that the needs of children should come first in both of these complex situations. The hard part is, first, to identify the child’s needs correctly, and second, to account for the doctrine of parental rights and overcome the adult decision-maker’s common tendency to empathize with parents. Dwyer initially focuses on the first issue, and advises the reader to abandon the second.

Relying on applied moral and political philosophy, and drawing from the Rawlsian perspective, Dwyer offers a theory of children’s relationship rights premised on the idea that the legal rights of parenthood should not be rooted in biology in the first instance. His proposal arguably relates to broader themes about children’s rights which are generally thought to take two forms. First is the right to have their needs met, to be taken cared of, and under the best of circumstances, loved. This vision of rights is at the heart of Dwyer’s notion that the “best” parents, assigned by courts through substituted judgment attributed to an individual child, may not be the biological parents. The second form of children’s rights allows more mature children to claim autonomous rights, and this view too is implicated in Dwyer’s proposal to the extent it challenges state decision-makers to act as “surrogate for the child” rather than arbiter of competing claims among adults and children (p.173). He offers the familiar conclusion that “every child who has the potential to become autonomous has a right – as against society as a whole and/or against [*976] specific persons [parents or guardians] to receive the care necessary to their successful development toward autonomy” (p.144).

Where does this get us as applied to the question of allocating parenthood? By Dwyer’s own account, right back to the best interests standard, the vague doctrine applied to child custody decisions in the vast majority of American jurisdictions. If that standard sounds conventional, in Dwyer’s hands it is used for novel and unsettling ends. Dwyer initially challenges us to think about the very foundations of many principles we take for granted. En route, he presents us with a thought experiment so untethered from reality that it would alter the legal landscape throughout the western world. As Dwyer blithely concedes, his approach would “require transforming much of family law in most western countries” (p.6).

Dwyer is given to broad statements in setting out his vision. Even his more routine propositions are frequently propped up by straw men. For example, Dwyer argues at length to knock down the “fiction” (p.67) that the private family occupies a private sphere neither touched nor regulated by the state, a proposition no one likely to read this book could possibly accept.

But the real problem is substantive: Dwyer’s most original, and startling, proposal calls for assignment of parents at birth. He urges that the state should, in every instance, attempt to match newborns with the parents that the child would choose if he or she could, with the goal of placing children in a position equivalent to that of a competent adult who is free to form or disavow a personal relationship. His faith in social engineering is apparent throughout his theoretical discussion, which occupies the first six chapters of the volume. But when Dwyer applies his ideas to the real world in the last two chapters, while repeatedly exhorting others to do the empirical work, the utopian nature of his vision jumps off the page.

Dwyer suggests a convoluted and costly system in which a married woman must execute a Parental Vow issued by the state’s department of social services, committing to provide her baby with “love and emotional support” as well as financial, medical, educational and other resources, and the like. The married woman who is over a certain age, is not in prison, has not abused an earlier-born child and satisfies other requirements, will then become the legal mother, and if her spouse executes the vow, he will become the legal father. This seems a lot like what happens today (except for the major change that minors would lose their children – a development that would outrage many children’s rights advocates since those cases involve two children with arguably conflicting rights). I have no theoretical objection to any measures designed to focus parents on the importance of the job they are undertaking. Of course the Parental Vow is only hortatory, like many of the promises in the traditional marriage vow (e.g., to honor and obey). Dwyer does not propose any enforcement mechanism short of the existing standards applicable to neglectful or abusive parents. [*977]

So far, this seems like just a lot of extra apparatus that results in assigning the vast majority of children to their biological parents. But Dwyer also proposes that if the married parents fail to execute the Vow within two days, “any person” (including the biological parents themselves), may petition the court for parenthood within 30 days of the birth, and the infant child shall be a party to the proceedings, represented by a guardian ad litem (GAL). (This of course also skirts the whole debate over the role and function of a GAL in general, and particularly the difficulty of representing an infant). The court would then assign the child to legal parents, based on enumerated factors that largely mimic existing best interests statutes, but with a number of disturbing class- and values- biased twists. These include “the living circumstances of the petitioner, including home environment, family resources” (a factor that sounds a lot like well-known abuses of the neglect label in the child welfare context), and commitment to “positive socializing experiences,” a category that leaves a great deal to the discretion of the observer (p.261). This is not surprising given Dwyer’s cavalier attitude toward the link between neglect and poverty. Acknowledging that the U.S. lacks the willingness to devote resources to eliminating poverty, Dwyer declines to enter the battle on the side of those who advocate alleviating childhood poverty through social programs. Instead, he says the added cost of child welfare agency and court personnel required to assign parents to all children will be much less than the cost of reducing poverty. Moreover, he predicts that since children will be assigned to “good” parents, reported instances of abuse and neglect will decline. But we know that even fully vetted adoptive parents sometimes abuse their children.

Dwyer acknowledges that his plan “would likely result in a substantial increase in the number of newborn children available to biologically unrelated applicants for parenthood (i.e., . . . ‘adoption’)” (p.264). Is he intentionally fuelling the flames of discord among those like the National Association of Black Social Workers which already views the child welfare system as a modern baby-farm for adoptable infants of color? No, he says, “the demand is principally for healthy white babies” (true enough), so infants who now fall in the “hard to place” category (nonwhite, children with disabilities or prenatal exposure to harmful substances) will by default be awarded to their biological parents if no alternative appears within thirty days of birth. How can this intrusion possibly promote early bonding between parent and child, who will end up together after all this extra process? And, since the mother is the “core” parent, according to Dwyer, he calls for genetic testing of all newborns born to unmarried women to identify fathers eligible to execute the Parenting Vow. What happened to all the debates about gender and motherhood of the last fifteen years? Can one imagine a greater state intrusion into family matters than required DNA testing in the absence of controversy?

So far, we have only covered babies born to parents Dwyer views as unproblematic. Dwyer proposes even more draconian treatment of parents [*978] considered likely to abuse or neglect their newborns based on categories of “bad” parents, easily recognizable to any reader with a passing knowledge of the child welfare system. Some of the less controversial categories are not only identical to routine recommendations from experts in the field — for example, removing a child from a parent who has killed another child actively or by failing to provide medical care – they are already embedded in federal law (Adoption and Safe Families Act (ASFA), 1997). Indeed, once again, Dwyer himself says his proposals will on the whole affect only “those who are highly likely to lose custody of their children anyway” (p.256).

The more controversial categories are deeply troubling. Despite Dwyer’s preference for the individualized decision-making of the best interests standard, he displays remarkable disregard for the complexity of individual cases well known to those who have worked with children in both the pre- and post- ASFA regimes. He proposes that all mothers in prison or facing a jail term as well as all biological parents who already have four children and are receiving public assistance would have to petition the court for legal parenthood. In Dwyer’s Leviathan state, these biological parents would come to the attention of child protection services through laws requiring providers of pre-natal services to report any evidence suggesting that an expectant mother falls into one of the enumerated categories of suspect biological parents. In the real world, such a regime would likely both inhibit many women from seeking pre-natal care and encourage abortions.

The Supreme Court roundly condemned the communal approach to childrearing in Plato’s Republic and ancient Sparta when it first enunciated the notion that parenting is a fundamental right in the U.S. (MEYER v. NEBRASKA, 1923). Dwyer goes to the opposite end of the spectrum from ancient Sparta. Instead of turning children over to the community, Dwyer would force some parents to hand over their newborn infants to substitute parents with better profiles to raise in their own private families. In the end, Dwyer’s utopian vision looks more like the dystopia of 1984.


REFERENCES:

Adoption and Safe Families Act, 1997. Pub. L. 105-89, 111 Stat. 2115 (codified in scattered sections of 42 U.S. C. (1998).


CASE REFERENCES:

MEYER v. NEBRASKA, 262 U.S. 390 (1923).

© Copyright 2006 by the author, Catherine J. Ross.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

CONTESTED WORDS: LEGAL RESTRICTIONS ON FREEDOM OF SPEECH IN LIBERAL DEMOCRACIES

by Ian Cram. London, UK and Burlington, VT: Ashgate Publishing, 2006. 244pp. $99.95/£55.00. ISBN: 0754623653

Reviewed by Brian Pinaire, Department of Political Science, Lehigh University. Email: bkp2@lehigh.edu.

The Ashgate series in Applied Legal Philosophy is, as the editor Tom Campbell explains, committed to publishing work which “adopts a theoretical approach to the study of particular areas or aspects of law or deals with general theories of law in a way which focuses on issues of practical moral and political concern in specific legal contexts” (Series Editor’s Preface). Ian Cram’s CONTESTED WORDS represents a fine addition to this collection. Cram is Senior Lecturer and Convenor for the Human Rights Research Unit in the School of Law at Leeds University and has published extensively on matters of comparative law and human rights, and thus he is particularly well-suited to execute his ambitious goal of exploring, from a comparative constitutional law perspective, the process and principles implicated in evaluating problematic forms and modes of expression in modern liberal democracies. What distinguishes his approach to this project, he notes at the outset, is that his study “attempts to situate its analysis within a broader context that acknowledges the role played by underlying traditions and currents in political philosophy that frame the treatment of speech problems in constitutional courts” (p.1). As such, his study is geared toward helping us to understand the nature and origins of those basic values that shape the interpretation of constitutional provisions pertaining to expression.

The book includes eight chapters and begins with a discussion of “current controversies,” where Cram rehearses many of the basic debates familiar to scholars of free speech (and modern political philosophy, more generally), such as the general theoretical divisions between liberals and communitarians, as well as the resurgence in the late 1980s and 1990s of an interest in deliberative decision-making processes. Chapter Two relies on the preceding overview in its consideration of “Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom.” While much of this chapter’s discussion of, in essence, the “counter-majoritarian difficulty” (Bickel 1962) will be familiar to students of constitutional theory in the United States, Cram takes this opportunity to bring comparable “difficulties” into the picture as they have developed and as they have been debated in Canada and the United Kingdom. It is here that the book demonstrates its greatest value to scholars and general interest readers. From this point forward, Cram juggles three narratives (three traditions, political cultures, and histories) as he works his way through the various contemporary problems in free expression which have been mutually experienced by this triumvirate of [*971] nations (with some occasional guest appearances by Australia). Forecasting his perspective on these issues as he concludes the theoretical and historical synopses and literature reviews of the first two chapters, Cram argues that “judicial intervention can and does secure real advances that promote a more genuinely participative democracy” (of the variety desired by civic republicans in the United States) (p.45). Certainly movement in this direction can be “incremental” and requires as an impetus “fact-specific litigation” (p.45), he concedes, but this notwithstanding, his assertion is that rights-based judicial intervention is still both worthy and desirable in the inevitable contestation of words ongoing in those democracies under consideration.

Chapter Three initiates this attention to the more specific debates over expression today as it focuses on the “Political Expression” of parties, voters, and candidates. Such examples of expression (e.g. advertising by parties and voting by citizens), Cram writes, “lie at the heart” of what he contends should be the most protected form of expression in a democracy, and so he spends this chapter presenting examples to support his position that rights-based judicial intervention is necessary to check the tendency toward encroachment endemic to majoritarian systems of government. As he puts it in the end and with his own emphasis, “In each of the liberal democracies considered in this chapter, it falls to the courts acting under the rule of law and within their respective constitutional traditions and frameworks to police acts of legislative and executive interference” (p.71). With this emphasis on the role for judicial oversight in protecting political expression, Cram moves in Chapter Four to the ever-ripening debate over campaign finance in the US and the UK and, after a useful review of the major legislative regulatory endeavors in this regard, and court responses in each context, concludes that, although judicial responses may have diverged (as to limited or unlimited contributions to candidates, for example), the major points of congruence reached by the respective judiciaries regards the principle of disclosure, and the need for transparency in the funding of campaigns and the ostensible political education and enlightenment of the citizenry.

Chapter Five looks at “Wounding Words,” Cram’s alliterative allusion to Richard Delgado’s (1982) depiction of hate speech. Here, the author hearkens back to the theoretical ground staked out in Chapter Two and uses this especially controversial form of expression to argue that “the degree of protection manifested in any society will reflect a dominant underlying commitment either to the values of pluralism, communitarianism or its civic republican variant” (p.111). After reviewing some of the usual suspects in the United States (e.g. the case of the Nazis in Skokie and R.A.V. v. ST. PAUL) and their counterparts in Canada and the UK, Cram sides with the critics of hate speech protections in finding that such expression ought to be “met with a proportionate legal response using the range of administrative, civil and criminal measures at the state’s [*972] disposal” (p.138). Chapter Six’s “contestation” goes to what we might call the problem of porn, or as Cram presents the debate, the degree of protection accorded to “sexually explicit expression” within a framework that should be focused (in his perspective) on enhancement of deliberative democracy. Here, Cram’s discussion tracks, but curiously does not refer to, the familiar claims of speech-theorists such as Alexander Meiklejohn (1953, 1962, 1965) and Robert Bork (1971) regarding the degree to which such expression is properly considered “political” and hence worthy of the judicial intervention lauded by Cram. In a more applied sense, Cram sides with critics of the US Supreme Court’s general approach to such matters, by emphasizing, for example, the social costs (e.g. abuse or disempowerment) alleged by some to be associated with “expression” in the form of pornography.

In his final chapter dedicated to a specific and ongoing “contest,” Cram attends to the regulation of commercial expression (e.g. tobacco advertising) and, as readers familiar with typical classifications and tiers of speech would expect, he concludes that commercial expression is not, and ought not, be entitled to the same degree of protection accorded to political speech. To be sure, his claim is not that commercial expression should be outside the realm of protection, but rather that it is properly susceptible to regulations not put upon its “political” counterpart, due to its “distance from the core reasons why we value freedom of expression” (p.201). In his Conclusion in Chapter Eight, Cram ties together the previously considered speech problems with a descriptive and prescriptive discussion of the flaws in typical libertarian objections to content-based restrictions on expression, specifically the insufficient attention directed within this perspective to concerns for equality and dignity and the resulting discouragement of and damage to public discourse.

CONTESTED WORDS will be of interest to readers with a general interest in modern free expression debates and to professors interested in a text to be used for purposes of considering debates in a comparative context, although as a function of its ambitions (transcending cultures and linking the law to the underlying traditions) and breadth, scholars who are experts in any one of the three primary loci (the US, the UK, and Canada) may find that the book glosses over some issues that deserve more care. For example, while Cram makes an intriguing case for rights-based judicial intervention as a means for promoting participation, at least in the case of the United States, many would point to the Supreme Court’s campaign finance jurisprudence as oriented in precisely the opposite direction: toward an excessively individualist approach that reifies the myopic tendencies of a market economy. To wit, the Supreme Court is part of the problem, not the solution. Or, for that matter, one might point to the fact (un- or at least under-appreciated by Cram) that the majority of Americans do not support the legal restrictions on voting by convicted felons and would tend to support the return of the franchise (Pinaire, et al. 2003) as various successful political mobilization efforts have recently [*973] demonstrated (see, e.g. King 2006), while it is courts that have maintained such infringements on this sort of ability to participate in political life. Cram is cognizant of these factors, as he makes clear in Chapters Three and Four, but he seems to dismiss too quickly such challenges in seeking to defend the notion of the judiciary as the branch holding open the door to such democratic prospects and possibilities.

Other specialists may find Cram’s conclusions to reiterate too much the arguments that have already been quite well-established in the literature on freedom of expression. Indeed, because the discussion of the “value” of certain forms of speech has been such a central doctrinal concern for the US Supreme Court for so long, scholars have also focused considerable attention on the proper scope of “political” speech, for example; and the conference of Critical Legal Scholars, as but one collection of interested students and advocates, set forth a generation ago many of the same critiques that Cram relies upon in making his argument in this text. Or, for that matter, given that his claims are situated within the “difficulty” most famously associated with Bickel and discussed above, those disinclined toward the “intervention” urged by Cram will have a problem with normative elements of Cram’s position(s) on these speech problems.

Such criticisms notwithstanding (and many of them are almost unavoidable when dealing with the intersection of issues to which he attends), the real value of his project is in the compelling way he brings together the multiple debates ranging across comparative contexts and in the way that he effectively connects outcomes in various cases and responses to particular problems to the traditions, cultures, and underlying political philosophies and popular dispositions of the US, the UK and Canada. The fact that he has accomplished that impressive feat in such an efficient, readable, and persuasive way is, if I may, without contest.


REFERENCES:

Bickel, Alexander. 1962. THE LEAST DANGEROUS BRANCH. New Haven: Yale University Press.

Bork, Robert. 1971. “Neutral Principles and Some First Amendment Problems.” 47 INDIANA LAW JOURNAL 1-35.

Delgado, Richard. 1982. “Words that Wound: A Tort Action for Racial Insults, Epithets and Name-Calling.” 17 HARVARD CIVIL RIGHTS—CIVIL LIBERTIES REVIEW 133.

King, Ryan. 2006. “A Decade of Reform.” THE SENTENCING PROJECT. Available at: http://www.sentencingproject.org/pdfs/FVR_Decade_Reform.pdf .

Meiklejohn, Alexander. 1953. “What Does the First Amendment Mean?” 20 UNIVERSITY OF CHICAGO LAW REVIEW 461-479.

Meiklejohn, Alexander. 1962. “The First Amendment is an Absolute.” THE SUPREME COURT REVIEW 245. [*974]

Meiklejohn, Alexander. 1965. POLITICAL FREEDOM. New York: Oxford University Press.

Pinaire, Brian, Milton Heumann, and Laura Bilotta. 2003. “Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons.” 30 FORDHAM URBAN LAW JOURNAL 1519-1550.


CASE REFERENCE:

R.A.V. v. St. Paul. 505 U.S. 377 (1992).

© Copyright 2006 by the author, Brian Pinaire.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

GOOD COURTS: THE CASE FOR PROBLEM-SOLVING JUSTICE

by Greg Berman and John Feinblatt. New York: The New Press, 2005. 256pp. Hardcover. $24.95 / £15.99 / $32.50 CAN. ISBN: 1565849736

Reviewed by Candace McCoy, City University of New York, Graduate Center and John Jay College of Criminal Justice. Email: cmccoy [at] jjay.cuny.edu.

pp.964-969

It is not a court if you have to plead guilty to get there. Nevertheless, it might help solve problems. On the other hand, social problems never go away entirely, and “solving” them is probably a quixotic quest. So it seems that this book has an improbable premise, beginning with its title. Although the premise may be improbable, the existence of problem-solving courts is not. Thousands of local courthouses across the county now include various versions of problem-solving courts in their operations, the most common of which are drug courts. They are up and running and working hard to solve problems. However, as the mini-debate in this opening paragraph shows, their organizational rationales and political direction are still worrisome.

The authors, Greg Berman and John Feinblatt, do not find them worrisome. Berman and Feinblatt are “true believers” who have set out to describe, defend, and proselytize for this type of social-service program delivered in courtrooms. Their book is not one-sided, since they pay attention to criticisms of the new court model and defend the model carefully against those criticisms. Ultimately, the success of that defense depends on whether the reader is willing to accept the premise that the judicial branch is so broken that altering its mission – overtly stating that courts are in business to provide crime control, not due process – is acceptable. Berman and Feinblatt are cheerleaders for the new model, and the book is written in a punchy, straightforward style that argues forcefully for problem-solving, not revolving doors. Traditionalist readers will not be convinced, but that is not because the book lacks punch. It is because the problem-solving model itself is problematic.

The book does a good job in presenting an overview of the problem-solving court prototype that is probably familiar to most readers as the popular drug court model. A strength of this work is that it is not limited to drug courts, but explains the broader court technology that can be applied to a variety of social problems – here, petty crime and domestic violence – as well as drug use. Mental health courts, prisoner re-entry courts, gun courts, gang courts – there are examples of each of these functioning in various jurisdictions across the nation, and any of them could fit into the “problem-solving courts” prototype set out here. Berman and Feinblatt concentrate on courts that are currently operating in New York and for which there is a sufficient track record to report results. This is hardly surprising, as the Center for Court Innovation, which Berman directs, is the non-profit research and educational arm of the New York state court system’s problem-solving courts [*965] initiative. Under the energetic leadership of Chief Justice Judith Kaye, New York’s court system has embraced a technology that changes not only the roles of court professionals but the purpose of courts themselves. No longer directed only to determine guilt and sentence the guilty, criminal courts are expected also to tackle the social problems that get people into trouble with the law in the first place. The state has invested considerable effort to extend the model, not only of the federally-initiated drug court program, but the workings of Manhattan’s community court. Supporters of the Midtown Community Court claim that it significantly contributed to the successful clean up of Midtown and Times Square in the 1990s, which in turn opened the way for economic development that has produced the prodigiously tourist-friendly Times Square entertainment district.

In the face of such enthusiasm, especially when agreeing that traditional courts can do little to stop the courthouse “revolving door” or to improve the lives of people whose life circumstances send them there, it feels mean-spirited to remain skeptical. Nevertheless, the most fundamental issue remains unspoken: what governmental (or, increasingly, private) agency should be charged with the task of solving social problems, and what evidence do we have that courts should be that agency?

The answer this book gives is: courts should solve these social problems because no other agency is doing so, and now that problem-solving courts have been in operation for about a decade, we have evidence that they do work. Skeptics are not convinced about the “works” part. Moreover, skeptics reply that the agencies traditionally charged with dealing with these problems, such as mental health services, drug treatment programs, or family counseling centers, have been dismantled in the decidedly non-compassionate conservatism of the past three decades. The criminal justice system has been made to step into the vacuum, arresting and controlling ever-larger segments of the population through a program of mass incarceration. Now a part of the justice system that was traditionally more about justice than punishment – the courts – is being put to work in the coercive enterprise. Call them what you will, these “courts” are really corrections agencies, or at least probation offices. This is alarming to those social analysts who are concerned about the rise of the carceral state, especially when proponents of problem-solving courts claim they “work” better than social services because judges have coercive powers backed by the threat of incarceration for non-compliance. These concerns are not addressed in this book.

I suspect that Berman and Feinblatt would respond to these concerns by saying that, until social service agencies are fully funded and capable of addressing the problems of drug addiction, homelessness, prostitution, domestic violence, and neighborhood disorder, we should be thankful that courts are willing to take on the task. Furthermore, they might be dismayed at the conspiratorial sound of this criticism, replying that the people who work in problem-solving courts have hearts of gold and want to make a difference in [*966] people’s lives rather than subjecting them to useless petty punishments. The mission of problem-solving courts, they say, is not to adjudicate but rather to “change the behavior of offenders, enhance the safety of victims, and improve the quality of life in communities” (p.5). Fair enough. But the question still remains: why are judges doing this, and are they both distorting the traditional mission of courts as providers of due process and unwittingly becoming part of the larger movement towards wholesale social surveillance?

Insofar as they take account of this overarching question, Berman and Feinblatt offer an important political point: courts are broken, anyway. They are not fulfilling their traditional mission of providing due process, so we might as well adapt them to new missions. Chapter 1, “Justice in Crisis,” gives an overview of the current situation in which criminal courts are “crowded, chaotic and overwhelmed” at the misdemeanor level and completely dependent on guilty pleas at the felony level. Defendants cycle in and out and never internalize the lessons supposedly taught by criminal prosecution, and the underlying problems of drug addiction, domestic violence, or homelessness are never even remotely addressed. Probation departments are overburdened and cannot deliver any meaningful supervision in community sentences, resulting in high recidivism.

This book is not about helping courts change in order to pull themselves out of this mess. Problem-solving courts have given up on the traditional court model. The authors say that “we need to be honest about what really goes on in our courts” and move past it rather than back up and make it work. Thus, problem-solving courts assume that a defendant pleads guilty before coming into the court, the guilty plea having been worked out between the defender and prosecutor in a typical plea-bargaining session to which the entire court “team” may now contribute. The goal is not to challenge plea bargaining but to embrace it and use it creatively. In return for their guilty pleas, defendants gain the benefit of the program to which they are sentenced – drug treatment, anger management, community service and job counseling, depending on which problem the particular court is seeking to solve. But if they do not complete the programs successfully, the most serious sentence that could have been imposed will come back to hit them. In the case of drug courts and domestic violence courts, this usually means serious prison time. This coercive possibility is said to be at the heart of changing offenders’ behavior and forms part of the rationale for the idea that problem-solving courts will “work” better than traditional courts do.

There is no question that modern courts are in bad shape. The authors say that rising caseloads due to the drug war of the 1980s and 1990s, increased awareness and willingness to prosecute domestic violence, and the need for quality of life enforcement (otherwise known as “Fixing Broken Windows”), have added to the crisis (pp.24-25). Yet the solution they propose is not the only one possible, nor is it necessarily the wisest. Courts would not need to bear [*967] the burden of prosecuting the drug war, for instance, if legislative reform could remove the worst excesses of mandatory sentencing and simultaneously increase funding for in-community drug treatment without coercive penalties attached. And the notion that quality-of-life problems are best addressed by police and courts rather than mental health professionals and social workers is still hotly contested. The book does not mention such ideas.

Furthermore, the authors claim that the public has realized that modern courts are in bad shape, and that the resulting low public confidence justifies a fundamental change in how courts are organized and what their mission is. Quoting a survey by the National Center for State Courts, they say that “only 23% [of telephone respondents] expressed a great deal of trust in state courts” (p.28). They also refer to other studies making the same point. What the authors did not mention, though, is that other branches of government and other professions get even lower ratings. Legislators are reviled, and executive agencies are regarded as corrupt. If the courts are broken, so is government in general, and we might ask whether the best response is a return to first principles or devising a new model of government entirely. This book clearly opts for the latter approach, but the former is not even considered as an option.

The new model is set out very well. Chapter 2, “What Are Problem-Solving Courts?” and Chapter 3, a description of problem-solving courts in action in New York and Oregon, set out the common elements of problem-solving. These courts “do more than just process cases . . . [a]ll of the new judicial experiments are attempting to solve the kinds of cases where social, human, and legal problems intersect . . . to do more than just apply the law correctly. Problem-solving courts demand that everyone attached to the court broaden their scope to see the real-life consequences of courtroom decisions. And they insist that courts use data to make more informed decisions about where to target resources and how to craft effective sanctions. Those who practice problem-solving justice are committed to seeing each individual case in the context of the lives of victims, communities, and defendants” (pp.32-33). To do this, they will: 1) set the goal as improving public safety while also protecting rights, 2) make the most of judicial authority by having judges (rather than probation or parole officers) monitor defendants’ progress, 3) put problems in context of neighborhoods, not individuals, 4) form creative partnerships with private businesses and community stakeholders, and 5) rethink traditional roles of the courtroom workgroup.

The authors say that these “principles of problem-solving” have emerged “more or less” spontaneously (p.38), though they do credit the federal government under Clinton’s 1994 Crime Act with providing funding, technical assistance, and research for hundreds of drug courts, which began the movement. They claim that the problem-solving model evolved from alternative dispute resolution, which if true is somewhat troubling because ADR is used in civil cases as an alternative to court, and the outcome must be accepted by both parties. Problem-solving in criminal court is not really a voluntarily-chosen alternative when the defendant’s only other option [*968] is prison or jail, and the outcome is required by the program in which the offender is enrolled. The authors also claim that the victims’ rights movement provided strategies of “making allies across the political spectrum” which advocates of problem-solving courts emulated, and that they also “borrowed language and concepts” from Problem-Oriented Policing and broken-windows ideology (p.49). They distinguish problem-solving from therapeutic jurisprudence and the rationales of juvenile courts.

Readers familiar with these various programs and approaches may disagree with the way they are portrayed here, but the origins of problem-solving courts may be a less important question than how they actually operate. In a statement somewhat contradictory to the later grand claims about how well these courts work to reduce recidivism, the authors distinguish problem-solving courts from juvenile courts: they are “much more realistic about the capacity of contemporary experts and institutions to change behavior. . . They do not contend that sentencing a shoplifter to paint over graffiti in the local subway station is going to alter a lifetime of drug use and homelessness. But they do argue that making low-level offenders perform visible restitution is a better outcome for the community than nothing at all or a few days in jail” (p.58).

What follows is a description of the Midtown community court and its social services programs for prostitutes and the homeless, claiming great success in ridding Times Square of its seediness and making it safe for a rejuvenated Broadway industry. “We really did get rid of street prostitution,” the Midtown court claimed, and that is so – in Times Square. Of course, a few blocks west of Times Square, several “gentlemen’s clubs” now provide jobs for the displaced ladies under a “gentlemen’s agreement” that “soft” prostitution is now decriminalized as long as it is not on the street scaring the tourists. This is indeed a significant social advance, but again, why was it necessary to enlist courts to do this job, and why do we not recognize the effect of decriminalization and regulation in achieving this preferable outcome? In Portland, Oregon, a community court handles all nonviolent misdemeanors in the city, applying sanctions of community service and attendance at social services programs. In Red Hook, Brooklyn, a war zone in the 1980s crack epidemic, a “Community Justice Center” offers GED classes, help in finding housing, voluntary drug treatment programs, and even a sports center. The authors claim that these community courts “worked” to stabilize the neighborhoods, bringing them back from disorder and fear of crime. They also say that the Brooklyn court diminished the sense of alienation from courts that poor and minority residents feel. The claim that courts are engines of community development is novel and exciting, but also somewhat odd. Again, is it the new court model, or the provision of sorely-needed social services or a program of neighborhood regulation that accomplished these welcome outcomes? The authors believe the new court model is superior in addressing social problems. The question is not whether the problems [*969] should be addressed, but whether courts are the right agency to address them.

Throughout, Berman and Feinblatt repeatedly claim that the courts “work,” meaning produce desired outcomes. In the case of the community development cited above, this is demonstrably so, though to be fair they ought to recognize that it is not only the courts that achieved this. There is an entire chapter on “Effectiveness,” which is a selective literature review of studies about the impact of problem-solving courts on their “clients” (problem-solving courts also use new terminology) and people involved in the cases. The most-studied outcome is whether recidivism drops. Berman and Feinblatt refer to the now well-developed literature of evaluations of drug courts, which basically finds that courts work to reduce recidivism somewhat, but not nearly as much as advocates claim. The authors offer several of their own studies as evidence of desired impact, though methodologists will find much to criticize. The very few true controlled experimental studies of drug courts have found that the programs reduce recidivism while the subjects are enrolled and “doing the program,” but that the effect decays in the year following graduation. Rates of recidivism are marginally lower for drug court graduates, and that is a good impact, but scarcely the impact their cheerleaders claim.

The book follows a format commonly used in the self-help genre. Once the new model is defined and then described in action, testimonies from people who have benefited from it come next. These are heart-warming. In keeping with the new model of courts, only one of the testimonies is from an offender whose life was improved by the community court. Others come from a victim who was able to escape domestic violence, and from a tenant who used the services of the Red Hook justice center to mediate her eviction and achieve a negotiated lease. (The latter is not a criminal case, and seems to be old-fashioned mediation provided in a new setting.) Do these courts care much about offenders? Maybe not.

The most interesting part of this book is its chapter on the role of judges and another on the effect of the new court model on individual rights of defendants. The authors acknowledge that there are “deepseated institutional concerns about problem-solving courts.” They criticize the judiciary as being too “tradition-bound,” including the “tradition [that] dictates that judges serve as neutral arbiters” (p.105). The authors apparently are willing to jettison the independence of the judiciary so that they can serve social ends: “public safety concerns are paramount” (p.107). This is revolutionary stuff, or perhaps not. It might simply prove the point of this review’s first paragraph: problem-solving courts are not courts. They are not concerned with due process or adjudicating guilt, either by plea or trial. They are correctional agencies, and as such might be an excellent new model of correctional agency. But as post-adjudicative bodies, they must be called what they really are, and it is not courts.

© Copyright 2006 by the author, Candace McCoy.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

LEGAL FEMINISM: ACTIVISM, LAWYERING AND LEGAL THEORY

by Ann Scales. New York: New York University Press, 2006. 240pp. Cloth. $35.00. ISBN: 0814798454.

Reviewed by Emily Albrink Hartigan, St Mary’s University Law School, San Antonio, TX. Email: hartigan [at] gvtc.com.

pp.960-963

In LEGAL FEMINISM: ACTIVISM, LAWYERING AND LEGAL THEORY, Ann Scales returns to the scene of feminist jurisprudence, one that she reminds us that she named, with considerable intellectual force and a lovely, wry sense of humor. What she does not bring back, however, is her singing voice. She has become a Rorty-citing pragmatist with her eye on practice and litigation. Her analysis is subtle, rich and quick, although it lacks some scope and lilt. To me, it seems that her humor, frequent and charming, might benefit from more of the “joke work” that Homi K. Bhabha suggests as a postmodern strategy for the disempowered, making fun of feminism rather than those with whom she disagrees. As Scales is intensely, illuminatingly concerned with power and its relation to knowledge, she might consider several categories of the postmodern that she gives short shrift, even as she demonstrates more than sufficient intellectual acumen to get to the limn of the space to which the best of postmodernism points. Despite any shortfalls, however, the book is excellently crafted, eminently readable, and both courageous and fortuitous in its timing.

In a move that seems familiarly feminist, Scales includes in her introductory chapter a discussion of what she means when she uses “we” in her text. As she indicates, sometimes she means and says “we lawyers,” but she also hopes to mean the community of text and reader – and in the end the “we” she considers perhaps most controversial is the groups that are, as she identifies herself, “women, lesbians, ‘outsiders,’ feminist lawyers working together since the 70’s, children of the 1960’s, and political progressives” (p.12). The bulk of her text manages, like a seasoned trial lawyer, to speak in several voices at once, and very persuasively. Scales reveals a good deal of her “subject position” yet navigates the texts of the patriarchs in a way that often tends to clarify rather than obscure – but it is a distinctly analytic clarification.

When I first taught law, I aspired to bring my classroom alive and was stunned and emboldened by Scales’ “An Absolutely, Positively True Story: Seven Reasons Why We Sing” (1986). In that piece, she and her co-teacher tell the story of beginning their first-year class with song, having invited the dean. Although Scales leavens her book with an engaging autobiographical thread, she does not reveal why law no longer sings for her, although the emergence of the lingo of a seasoned litigator with a deft habit of interspersing witty vernacular with her philosophy gives the book a very effective style. The interaction between style and substance, or theory and practice, or method and content [*961] must arise in feminist work, and Scales’ method may not seem overtly feminist, although her intricate discussion of the feminisms (particularly postmodern and what she calls “pre-postmodern”) abroad in legal theory gives the reader a perspective from which that tension may be evaluated.

Scales begins with self-deprecating section titles to disarm reader hostility to both “feminism” and “theory” that she labels “the f-word” and “the t-word” respectively. This confess-and-defend move is distinctly legal and in my experience may arise from law students’ (and some, usually male, colleagues’) dismissals of both. Thus for the academic reader who has not been not caught in professional school anti-intellectualism, the initial parts of the book may seem unnecessary. The quality of the patter more than makes up for these moves for this reader, however, and suggests an answer to Scales’ frustration with feminists like Judith Butler. Although Scales dismisses Butler’s language as unintelligible in the ordinary political world, and declines to attempt parody, she actually performs what she bewails as impossible. The very phrase of Butler’s that Scales jokes that she cannot use to a legislator – she uses herself, in her rather dazzling dance on the gender question, with the reader. Thus, she could, as Bhabha invites, use self-critical humor (as she does at the start) embracing the notion that the stereotypes (feminist, woman law professor and litigator) hold some (but misleading) truth – that is, if she hopes to engage readers other than her (formidable) allies.

Scales relies primarily on male sources of “authority” along with Catherine MacKinnon. The patriarchs she cites are a mixture – Rorty, Kant, Wittgenstein, Lon Fuller. As Scales notes in considering the ever-turning issues of gender, there is a time when we must generalize, even stereotype, to save time – and sometimes using Kant directly to discuss the antinomies may be the most pragmatic, to borrow a word. However, it does not avoid the problems of pragmatism, Scales’ chosen stance. First, pragmatism is a porous justificatory/epistemic system and falls into the same potentially directionless plurality of possibilities that Scales attributes to postmodernism. Second, pragmatism always leaves the questions, “works for whom and by what values?” And, third, the “pragmatic” consequences of using so many men (and not even the oldest of the progenitors of “intractable” questions, as Socrates had his play with each of the four, and more, of Kant’s antinomies that Scales chooses for focus) must include the reaffirmation of a highly male-dominated textual ground. I happen to be fond of some of the male authors Scales uses extensively (and note that at least Wittgenstein was gay), but that simply reflects that Scales and I likely had similar experiences in what was a highly male-analytic academy of the ’60s. This cant toward male authors puts the text at tension, as Scales participates in challenging Reason as master of epistemic matters while using Kant and Fuller as pivotal exemplars. At the same time, this initial male cant situates her text closer to the mainstream, and although she continues to identify as an outsider, she claims to [*962] address law students, many of whom are heading straight for the belly of the beast. She struggles brilliantly, and informatively but does not, for instance, seem to get beyond philosophical liberalism, despite fragmentary affirmations of solidarity. Nowhere does the reader find affirmations of narrative feminists, spiritual feminists, web-of-connection feminists – all of whom even write in law journals.

The possible method in this madness may be revealed about half-way through the book when she says, after having skillfully discussed some very heavily distinction-laden toxic tort cases, the following:

The reader may wonder what all this has to do with feminist jurisprudence, and the answer is “everything.” The institutions, the rules, and the “facts” are all engineered by people who, consciously or not, are serving the patriarchal corporate masters. There. I said it. (p.60)

Now perhaps things can pick up. But I am not sure they do. A stance based on her underlying frustration never comes out directly.

The text has some quite sophisticated discussions of various feminist camps and Scales’ take on their consequences. I confess that I am postmodernist, but not in the way many of those Scales cites are. This is key to why Scales’ loss of song seems so important. She simply ignores major aspects of what legal feminism has brought to the conversation. Although she discusses the rationalist denigration of emotion (versus the fabled “right reason”) as crucial to feminism, she completely omits the calls to the aesthetic and the spiritual that feminist (and women-friendly male pomo) legal writers such as Patricia Williams, Marie Failinger and Marie Ashe have been spinning from their intricate postmodern subjectivities informed by the best of deconstruction and post-Enlightenment thought. Thus, Scales does a particularly clear and even-handed version of the “Limits of Liberalism” but not one that is perceptibly feminist, aside from one pointed quotation from Mari Matsuda (although reading the endnotes after the text, one can see a powerful subtext that is more revelatory of feminist roots). It is in this chapter that she declares: “These days, systems of oppression are not usually consciously maintained” (p.74). This points to what I found the most interesting chapter of the book.

False consciousness (she questions the phrase itself, manifesting once again the consistently impressive level of her conceptual delving) is central to any attempt to persuade another of something we think they do not already fully grasp. And Scales does not seem stable on whether those patriarchal corporate masters are culpably unconscious. To remedy the dilemmas of false consciousness, Scales forthrightly, even brilliantly, sets out the paradoxes, but she does not embrace them as sources of creative tension. At some point the answer is not one of reason, but of other things: beauty, spirit, respect, even mystery. Or song.

Until Scales is moved to try again to sing in public, we will have to be satisfied with a riveting combination of analytical [*963] elegance, comic timing, and informed passion for the legal status of gender issues. I can only hope that she will risk her outsider voice’s more fragile side. Without it, she is left concluding that “[n]either professional education and prestige, nor even confirmation by the United States Senate, bestows the power of flight. Lawyers cannot soar above social life” (p.151). A lyrical, analytic brilliant social critic, Stanley Cavell, occasions from one commentator the accolade that he writes into “the medium of uplift” with his reflections on the development of meaning in society. Scales ends saying we should “get on with the business at hand” – with scant space for law whose excellence is justice, and part of how we humans may make meaning together.


REFERENCE:

Johnson, Carl, and Ann Scales. 1986. “An Absolutely, Positively True Story: Seven Reasons Why We Sing.” 61 NEW MEXICO LAW REVIEW 344.

© Copyright 2006 by the author, Emily Albrink Hartigan.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

SEEKING CIVILITY: COMMON COURTESY AND THE COMMON LAW

by George W. Jarecke and Nancy K. Plant. Boston: Northeastern University Press, 2006. x + 220pp. Paper $19.95. ISBN: 1555536662. Cloth. $26.95. ISBN: 1555535763.

Reviewed by Robert Dingwall, Institute for the Study of Science and Society, University of Nottingham, UK. Email: Robert.Dingwall [at] nottingham.ac.uk.

pp.957-959

SEEKING CIVILITY is a curious book, from which I derived a certain amount of enlightenment and not a little entertainment on a couple of train journeys. While it is not particularly targeted at an academic readership, it does engage an issue of wide interest, namely the degree to which law is an appropriate means of regulating everyday interactions between citizens. This has become a high profile matter in the UK under the present government with its self-styled ‘respect’ agenda and attempts to define and regulate anti-social behavior. The result has been the remarkable legal innovation of the ASBO (Anti-Social Behavior Order) which courts may grant on a civil standard of proof but whose breach attracts criminal penalties. Considerable numbers of truculent teenagers in poor and minority neighborhoods have now collected these trophies, along with a growing number of their parents, without making any obvious and demonstrable contribution to the improvement of civil order so much as shuffling the problem along to another housing project or inner city neighborhood, whose troubles are exported in return. In a parallel move, neighborhoods may also be subject to Dispersal Orders, authorizing the police to move on, under sanction of arrest, groups of teenagers who are hanging around on the streets doing the kinds of things that teenagers do to annoy upright citizens – wearing hoodies, swearing, jostling passers-by and looking intimidating.

Despite the enthusiasm of the United States for imprisoning its citizens, these ingenious legal devices have yet to cross the Atlantic. Indeed, I suspect that they might be considered rather unconstitutional in a country whose courts sometimes take a more robust view of the liberties of its citizens than does its government, or mine. In the absence of state action, irritated citizens must rely on their private initiatives through the civil law. George Jarecke and Nancy Plant survey the range of legal means that the ancient traditions of common law offer to resolve interpersonal friction. The chapters range over battery, trespass, nuisance, blasphemy and defamation, with an engaging selection of colorful cases that are well-explicated to demonstrate the authors’ arguments. The book is consistently well-written and clear in its exposition, although I do not have sufficient knowledge of US law to determine whether it is invariably correct.

Where I have more problem is in my uncertainty about the audience for whom the book is written and what its intended outcome might be. There seem to be several different agendas running through the chapters. [*958]

One is the extent to which the US is a particularly litigious society. This is a central topic for law and society scholarship, although my reading of the consensus is that it is not and that the really interesting questions now are trying to understand why people think that it is. If there is not a ‘compensation culture,’ whose interests are served by promoting that belief? Jarecke and Plant point to the antiquity of most torts and the precedents to which the common law refers. Citizens have been annoying each other since the thirteenth century and seeking remedies from the courts, which, in turn, have continually revived and respecified these historic concepts to take account of new social, economic and cultural environments. However, the authors also stress that the courts do not do this job particularly well and often fail to achieve closure on disputes, except in a temporary sense that a judgment is filed. Parties often fail to collect compensation or to enforce the court’s decision. Neighbor disputes, more often than not, are simply resolved by one of the parties giving up and relocating.

The second theme then is the inadequacy of the forum. Courts cannot make people behave more nicely to each other. Indeed, judges are so well aware of this that they are actually quite reluctant to get involved in cases of this kind, and their rulings consistently stress that citizens of the US are expected to put up with each other to a considerable degree before the courts will intervene. The constitutional liberties of citizens include the liberty to annoy each other quite a lot because this is regarded as preferable to the regulation of speech or encroachment on private property. Travelers on the New York subway experience technical battery every day, but the courts would reject without hesitation any suit that did not contain some element of exceptional aggravation: being jostled is a fact of life in the modern world and we must just get used to it. Jarecke and Plant rehearse the familiar arguments about the limits of the adversarial process – its costs, its tendency to deepen conflicts, and the degree to which lawyers become sucked into the emotional engagements of their clients rather than acting as rational counselors. The history of neighbor litigation, in particular, is riddled with suits whose costs are out of all proportion to the economic value of the issues at stake.

So far so good. But what can we do about all of this? Here the authors are much less convincing. There is a running argument with Stephen L. Carter, whose book CIVLITY I have not read. From Jarecke’s and Plant’s account, this seems to have argued that US citizens have become increasingly horrid to each other but that this could be solved if they all went to church more often. Jarecke and Plant reject the historical argument: Americans have always been horrid to each other, and this only seems to be more of a problem because there are more Americans around. This reminds me a little of the observation by the British criminologist. Geoff Pearson, that young people were always better behaved thirty years ago, whether the commentator is writing in 2006 or 1906. They also reject the remedy. A more diverse society cannot impose uniformity of religious belief [*959] and, in any case, the diversity of church affiliations seems to be as likely to cause community conflicts as it is to contribute to their resolution!

If we cannot rely on God, what about ADR? The authors are not very enthusiastic about mediation either, rightly pointing to the difficulty of finding affordable neutrals and motivating parties to make use of them. This only seems to be possible with a degree of compulsion from the courts that rather undercuts the feasibility of producing a mediated settlement from parties who are not only rancorous with each other but now have cause to be rancorous with the court that will not hear their case until it has been mediated.

Finally the authors turn to the new US panacea, the spirit of 9/11. This seems rapidly to be assuming the same iconic status as the Dunkirk spirit or the London Blitz in the UK, a time when we all pulled together as a community. Of course we didn’t – Londoners were as good at looting bombed-out buildings as they were at making tea for the homeless victims but we remember one and not the other. No doubt historians of the next generation will find numerous stories of cowardice, opportunist crime and selfish behavior associated with 9/11. In the meantime, though, it remains a good rhetorical peg on which to hang the authors’ aspirations for an America whose citizens tried to be nicer to each other, an aspiration that is recurrently undercut by their evidence of the deep historical streak of interpersonal nastiness that citizens can also display. Indeed, the authors themselves concede that their picture has an element of nostalgia for an historical moment before the present US administration squandered the goodwill of its people and allies in pursuit of its sectarian agenda.

On the whole, this is a book that has better questions than answers. It could be quite an entertaining text for a freshman class in pre-legal studies because the cases are a lot of fun and should provoke lively discussions, especially given the authors’ skepticism about many assumptions that incoming students are likely to take for granted. There are genuine questions about how diverse and multi-cultural societies promote civil order. This may not be cutting-edge law and political science, but the audience for material at that level is quite limited. SEEKING CIVILITY opens up serious issues in an intelligent and user-friendly way. Our legitimacy as scholars can always benefit from bridge-building of this kind.


REFERENCE:

Carter, Stephen L. 1999. CIVILITY. New York: Harper.

© Copyright 2006 by the author, Robert Dingwall.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

IN THE NAME OF NATIONAL SECURITY: UNCHECKED PRESIDENTIAL POWER AND THE REYNOLDS CASE

by Louis Fisher. Lawrence: University Press of Kansas, 2006. 256pp. Cloth. $34.95. ISBN: 0700614648.

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

pp.955-956

The eminent constitutional scholar, Louis Fisher, has written a book-length account of US v.REYNOLDS (1953). REYNOLDS has long been the government’s favorite authority on the so-called state secrets privilege. Relying partly on newly discovered facts, Fisher demonstrates that the government’s argument totally misled the Supreme Court as to what was at stake in the litigation. He argues further that the Court’s reasoning was in any case deeply flawed, and that the decision has provided unwarranted support for claims of unchecked presidential power.

Chapter One gives factual and statutory context to the lawsuit, which was brought under the Tort Claims Act by the widows of men killed in a military plane crash. The plane carried secret electronic equipment, and the government refused to disclose its accident report to plaintiffs, their counsel, or the court.

Chapters Two through Four recount the strategy decisions, filings, arguments and rulings in the District Court, Circuit Court and Supreme Court, respectively. While plaintiffs prevailed in the lower courts, the Supreme Court reversed in a 6-3 decision, holding that when presented with a plausible state secrets claim, “the court should not jeopardize the security which the [state secrets] privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” As Fisher points out, this McCarthy-era ruling gave extraordinary deference to executive claims, while at the same time insinuating that federal judges cannot be trusted to protect secret information.

Chapter Five describes subsequent developments, such as the Freedom of Information Act, that make out a broad trend toward increasing transparency and limitations on executive discretion to withhold. These steps, however, have not squarely addressed the specific problems created by the REYNOLDS decision.

Chapter Six relates the recent discovery that the accident report at issue in REYNOLDS had been declassified. It became clear the withheld documents contained no information at all about the secret equipment or the purpose of the flight. They simply detailed the government negligence responsible for the accident. At this point plaintiffs returned to court, seeking to reopen the litigation. Their effort was frustrated by the value usually placed on finality of decisions after the normal appeal process is exhausted.

Finally, Chapter Seven places REYNOLDS in historical context. Fisher argues that the precedents relied on by the government and the Court in [*956] REYNOLDS did not really support the outcome in that case. Thus, the discrediting of REYNOLDS leaves the state secrets privilege with no judicial grounding at all. Courts should not defer to executive claims of privilege without reviewing the evidence, in camera if necessary, and determining independently whether disclosure is appropriate. Moreover, if the claim is upheld, the government must bear the consequences: the court will proceed as if the withheld information were unfavorable to the government’s case.

I have no quarrel with Fisher’s argument that REYNOLDS is bad law. Indeed, one could reach that conclusion simply from reading Chief Justice Vinson’s puzzling opinion, along with the fact that Justices Black, Frankfurter and Jackson all dissented, though without writing. No like-minded trio, those three. Hopefully, Fisher’s showing that the government essentially deceived the Court in order to mount a test case for the state secrets privilege will incline some of those enchanted by the shibboleth of “national security” to rethink their tendency to grant blind faith to executive claims.

Fisher’s critique of REYNOLDS is a useful addition to the body of literature, such as David Adler’s work on CURTISS-WRIGHT, exposing the utterly infirm foundations of the doctrine of inherent presidential powers.

While Fisher’s rhetoric is sometimes passionate, his legal arguments are profoundly learned and thoroughly documented. One might quibble about the placement of Chapters Five and Seven, and some may find redundant the many repetitions of the fundamental point – that courts cannot perform their core checking and balancing function without independently reviewing the evidence on which the government relies. Still, the point is very much worth making, especially in light of current circumstances.


REFERENCES:

Adler, David Gray. 1996. “Court, Constitution, and Foreign Affairs.” In David Gray Adler and Larry N. George (eds). THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY. Lawrence: University Press of Kansas.

Hoffman, Daniel N. 1997. “The Myth Of Presidential Prerogative.” In Daniel N. Hoffman. OUR ELUSIVE CONSTITUTION: SILENCES, PARADOXES, PRIORITIES. Albany: State University of New York Press.


CASE REFERENCES:

UNITED STATES v. CURTISS-WRIGHT CORP., 299 U.S. 304 (1936).

UNITED STATES v. REYNOLDS, 345 U.S. 1 (1953).

© Copyright 2006 by the author, Daniel Hoffman.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

THE MORAL ECOLOGY OF MARKETS: ASSESSING CLAIMS ABOUT MARKETS AND JUSTICE

by Daniel K. Finn. New York and Cambridge: Cambridge University Press, 2006. 182pp. Hardback. $65.00/£40.00. ISBN: 0521860822. Paperback. $23.99/£14.99. ISBN: 0521677998. e-book format. $19.00. ISBN: 0511159420.

Reviewed by Robert H. Nelson, School of Public Policy, University of Maryland. Email: nelsonr [at] umd.edu.

pp. 951-954

In many ways, this is an appealing book. The author writes well. He goes out of his way to give opposing viewpoints a fair hearing. He complains that ideological opponents too often talk past one another and seeks here to provide a more balanced treatment.

The subject is the morality of the market. The book is partly a response to the fact that, as Daniel Finn explains, “within the mainstream of the discipline of economics, moral questions are explicitly avoided” on the grounds that economics can and should limit its efforts to empirical science. This is, however, an illusion because “arguments about markets inevitably have a moral dimension, and all participants in the debate are better off to admit this at the start” (p.5).

Finn begins by examining briefly the thinking of three leading defenders of the free market – Milton Friedman, James Buchanan, and Friedrick Hayek – and shows how their advocacy embodied powerful normative elements, even as they typically neglected or even sometimes denied the presence of such underlying values. In each of their cases, government is assumed to provide a framework of law that allows the market to function, an action that itself reflects strong value judgments about the social merits of market workings and outcomes.

In Buchanan’s case, he advocates significant constitutional change to correct problems associated with the rent seeking of the welfare and regulatory state. But how would a constitutional convention and other steps to improve the political order ever come about? As Finn argues, it is only conceivable if people have a wider concern for the overall benefit of society and are willing to act on that concern, foregoing the narrow pursuit of individual advantage.

Finn then considers how, assuming an ethical justification is required, the market might be defended. He examines ten positive arguments such as that markets “reduce discrimination and bigotry” because everyone is treated equally and a firm that discriminated against employees who in fact possessed higher skills would lose out in the competitive process. The market is also effective in promoting technological advance and economic growth which improves the lives and behavior of the citizenry. On the negative side, however, Finn then lists eight ethical criticisms of markets, such as that they foster inequality and they work to encourage a culture of greed and exclusive self-regard that ultimately [*952] works against efforts to advance the common interests of society.

Finn then sets the stage for an overall assessment by identifying four main criteria to be applied in assessing any economic system. Such a system must find solutions to these four basic problems: (1) an efficient “allocation” of the resources of society to maximize production and consumption; (2) a fair “distribution” of the outputs of the economy; (3) a proper “scale” of economic activity that will not overwhelm the capacity of the environment; and (4) a high “quality of human relations” (a consideration that Finn considers the “most complex” of the four). It is in part an empirical question how well any economic system fares according to these criteria, a subject that requires intensive study by economists and other social scientists.

Given some such empirical estimates, forming an overall judgment with respect to the market then will require application of the various moral criteria previously described. Finn does not seek to provide a definitive answer himself but seeks instead to improve the quality of future discourse by giving the argument greater structure.

Of course, few societies leave the market to operate without constraints – or “fences,” as Finn labels them. The U.S. Civil War was fought to eliminate slavery as a market option, reflecting a basic moral judgment of the time, and there are many other areas where market freedoms are limited for ethical reasons. Almost all governments, moreover, provide certain basic services beyond law and order. Even a libertarian such as Friedrich Hayek agrees that, in addition to providing an education for all citizens, government should maintain a safety net. Milton Friedman agreed and proposed a plan for educational vouchers and his “negative income tax” – the latter taking the form today of the earned income tax credit.

Ultimately, Finn seems most worried that the market encourages an excess of individualism that will neither make people happy in their personal lives nor enlist their participation in working together for a better world. The necessary “bonds of community” may be undermined by “both the impersonality of the market and the philosophy of impersonal human relationships endorsed at least implicitly by libertarians” such as Friedman, Buchanan and Hayek. He thus argues that the market must be evaluated in the widest setting – that “we really understand the market only when we examine it within its [full] political, social, and cultural context” (p.144). His use of the term the “moral ecology of markets” refers to his concept that markets involve complex interactions among a wide range of social factors that must be studied like an ecological system.

In concluding, Finn suggests that the various advocates for and against markets typically limit their concerns and values to a subset of the relevant considerations. It is only this selective consideration that allows them to be so confident of their own verdicts on the market. Finn suggests, however, that the tradeoffs are difficult and any [*953] intellectually honest person must admit this, avoiding the dogmatism that he finds all too frequently exhibited. Instead, what is needed in deciding the appropriate role of the market is a “real dialogue between proponents with differing views” based on an attitude of tolerance and humility that facilitates a genuine “common conversation.”

The market considerations listed by Finn will by and large be familiar to many readers. His greatest service thus is to provide a full catalogue in one place and to insist that all these factors must be recognized and weighed together by any fair minded person. The book thus may be most valuable for students and others who are coming to the subject for the first time.

There are some interesting messages, however, that are sent indirectly. The very fact that he sees it as desirable to assemble all the ethical pros and cons is a commentary on the absence of explicit attention to moral considerations in much of the social sciences. It is also a commentary on the tunnel vision of much of academic life, reflecting a powerful incentive structure that works against such overview assessments as Finn provides here.

Finn also gives libertarian thinkers greater attention than is typical in the university mainstream. The development of libertarian thought in the United States has largely occurred outside the academic world and in think tanks such as the Reason Foundation and the Cato Institute. Finn is indirectly criticizing this, and rightly so.

Yet, he may have actually given libertarians a greater role in defending the market than they deserve. The leading defender of the market in the twentieth century was actually John Maynard Keynes. In the 1930s, many leading intellectuals were suggesting that the market should be abandoned altogether. Keynes replied that, suitably overseen and regulated, including the application of Keynesian macro-economic methods to stabilize the market, it was a valuable – indeed essential – tool for accomplishing the purposes of society.

In the United States, this became the mainstream view of the economics profession for the remainder of the twentieth century. Thus, the critical historical role for libertarian economists such as Friedman and Buchanan was not in defending the market per se but in arguing that the Keynesian macro-economic oversight and regulation had gone too far. Finn’s market intellectual history is misleading in this respect.

Another problem is Finn’s assumption that individuals pursue their own interests in markets. It is true that economists often employ this atomistic model. In reality, however, many markets are dominated by large collective organizations such as business corporations. More recently, more than 50 percent of the new housing in the United States has been built in a private community association. Much of private economic activity today is thus collective, bringing into question Finn´s core argument that markets necessarily encourage an excess of individualism. [*954]

As noted, a distinctive feature of this book is Finn’s strong appeal for fair minded attention to every point of view. An analogy in religion would be an ecumenical movement among faiths that have more often fought fiercely over matters of theological interpretation. Finn wants advocates of the various secular “religions” of the market – pro and con – to show a similar ecumenical spirit. The current difficulties in bringing the Christian and Muslim worlds together, however, suggest the problems and limitations of ecumenical dialogue – whether the subject is God or markets (perhaps a modern substitute for God).

The idea of economic progress did in fact become the religion of large numbers of modern men and women. If people lie, cheat and steal for material reasons, continuing rapid economic progress might lead to a new era, spiritually as well as materially, opening up the prospect of a new heaven on earth by human actions alone. The best route of economic progress –the market, government planning, or otherwise – then becomes a profound religious issue, capable of inspiring modern religious warfare between socialists and capitalists, among others.

The rise of a Christian ecumenical movement did not occur until the Christian religion had been significantly marginalized in society – when the common enemies of Catholics and Protestants were more important than the remaining differences among them. Perhaps we have reached a similar point with respect to the market. If the old battles were fought among competing visions of economic progress, much of the debate now is about the actual merits of progress. In this debate, free marketers and socialists are actually on the same side, typically opposed by environmentalists and others who now question progress. Finn thus may be a bit late, addressing a subject that is no longer the central question, and his main ethical categories could be correspondingly outdated.

His plea for tolerance also assumes that “religious passion” about the market (and implicitly most other things) is undesirable. It is true that religion has too often incited hatred and violence. But religion is a double edged sword. Without deep religious commitment, many desirable social reforms might never have occurred. Religion can be a main antidote to the pervasive rent seeking that still leaves many societies mired in poverty and inequality. Even the continued existence of free markets may require a suitable religious dedication to maintaining private rights.

Finn has nicely summarized a variety of arguments for and against the market, although inevitably somewhat selectively. For a college course, one might say that he provides a good set of market cliff notes. This is a useful service, but in the end the book does not break any new ground in thinking about the role of markets in society.

© Copyright 2006 by the author, Robert H. Nelson.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

 

RIGHTFUL RESISTANCE IN RURAL CHINA

by Kevin J. O’Brien and Lianjiang Li. New York and Cambridge: Cambridge University Press, 2006. 200pp. Hardback. $70.00/£40.00. ISBN: 0521861314. Paper. $24.99/£14.99. ISBN: 0521678528. eBook format. $20.00. ISBN: 0511159153.

Reviewed by Hualing Fu, Hong Kong Faculty of Law. Email: hlfu [at] hku.hk.

Kevin O’Brien and Lianjiang Li have written a book that is both sophisticated theoretically and solidly grounded empirically; it is also a readable (and re-readable) book. The book, as its title suggests, is about peasants’ rightful resistance against the exploitative and repressive (local) state.

Rightful resistance is defined as “a form of popular contention that operates near the boundary of authorized channels, employs the rhetoric and commitments of the powerful to curb the exercise of power, hinges on locating and exploiting divisions within the state, and relies on mobilizing support from the wider public” (p.2). Rightful resistance thus consists of legally sanctioned actions taken to protect one’s legal rights. In carrying out rightful resistance, the resisters strategically engage the state, exploit the gaps within the state, and change the society using legitimate means.

Rightful resistance emerges because of the increase in political opportunities in China, broadly defined as the widening gaps between improved and increasing legal rights in law and policies (offered by the central authorities) and the violation of legal rights in action (by the local government). This “structural opening” provides the context for rightful resistance to develop. In addition, the peasants’ appreciation of the opportunity, willingness and ability to exploit the gap between law and practice is another important condition for rightful resistance. Because of improved transportation and communication, the penetration of mass media, and many other social and economic changes brought about by economic reform in China, peasants have become more aware of their rights and are prepared to assert and defend them.

Rightful resistance is taking place throughout the countryside in China and aggrieved peasants are airing their complaints, mobilizing laws and asserting their rights. As O’Brien and Li succinctly demonstrate, regardless of the often seemingly insurmountable difficulties facing the peasant resisters, they continue their battles to protect their rights. Occasionally, with luck and sympathetic assistance, the peasants defeat their adversaries. A successful resistance depends on mobilization of peasant power which includes three aspects. The first is internal organization, mainly including the agitation, organization and coordination of peasants; the second is tactical and skillful use of external resources for support, such as courts, media, local congresses, or government offices at different levels; and the third is the types of action that peasants may take, [*949] including petitions, sit-ins and demonstrations.

The impact of rightful resistance goes beyond any individual claim. Resisters may win or lose their battle in individual cases, but their action can highlight the misdeeds of local officials, attract media and official attention to wide-spread social problems, and at the end of the day, improve policy implementation. More importantly, resistance itself is a meaningful training and educational process for peasants who are involved in or have witnessed the process. As the authors point out, rightful resistance “has led many of them to reconsider their relationship to authority, while posing new questions, encouraging innovative tactics, and spurring thoughts about political change” (p.103). In the long run, rightful resistance nurtures new rural elites, empowers village communities and creates citizens for future political participation.

The authors are positive about rightful resistance and optimistic about what it could bring. Less optimistic commentators, however, may point out that the actual “structural opening” is more constrained than the authors have indicated. It is clear that rightful resistance in O’Brien’s and Li’s world is largely limited to protest against illicit levies and rigged village elections. But outside the two large policy areas, resistance, rightful or not, is much less likely. In areas such as the one child policy, religious activities, or the right to form or join associations, where peasants also enjoy rights under the law, their resistance meets strong and hostile responses from the state. It is extremely difficult to locate and exploit gaps within the state in those areas.

The relationship between peasants and local government officials is also multidimensional. Peasants often place conflicting demands on village and township leaders. Peasants resist and reject village and township leaders when local government becomes predatory and repressive. Yet most of the grievances and complaints that peasants have are not directed at government of any level. Rather the vast majority of the disputes are inter-personal disputes that demand positive government intervention as a neutral third party. Peasants place strong demands for more effective and efficient government services, such as education, medical care, and social security. Like it or not, peasants place their reliance heavily on local officials in their daily social and economic life.

This leads to the issue of villagers challenging the local government. As O’Brien and Li note, the whole political system in China is designed to make resistance, rightful or not, particularly costly. Peasants in China may not have the capacity to organize and sustain their rightful resistance. The unlawful extraction of taxation and fees and violation of rights are institutionalized and systemic, but resistance remains sporadic, spontaneous, and limited in scope and intensity, as reported by O’Brien and Li. With few exceptions, there is little organization and coordination beyond a single village. Resisters at each instance have to re-invent the wheel of rightful resistance, from gaining access to information, to finding helpful higher authorities, to [*950] designing suitable strategies. The spontaneous nature renders rightful resistance very costly on the part of the resisters. Given the systemic (and comparatively well organized) exploitation of the peasantry by officials, the question is not why rightful resistance has taken place, but why so few instances of rightful resistance have taken place and why they have been so ill-organized.

The principal reason for the lack of resistance is the continuous thinning of rural community and the steady decline of capacity in the rural villages in the last two decades. Facing the oppressive and predatory local state, few peasants organize or participate in resistance. Most remain silent, and a large proportion, mainly the able-bodied and skilled peasants, simply exit. The best example pertinent to sustained decline in capacity is the long-term and short-term migration of huge numbers of peasants to cities. Peasants are abandoning their villages physically and conceptually. As a result, there are homeless people in the cities, and there are empty houses in the countryside. Rural villages, as a result, have little capacity to defend themselves. They are made vulnerable to predators from the local authority, as well as societal forces. Rightful resistance is taking place in this distorted demographic context.

O’Brien and Li have written a very useful book for both specialists and non-specialists. The book will prove useful to political scientists, lawyers and anyone who is interested in political development in China. As an important contribution to the study of contentious politics and Chinese politics, the book will be referred to for many years to come.

© Copyright 2006 by the author, Hualing Fu.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE

by Sally Engle Merry. Chicago: The University of Chicago Press, 2005. 264pp. Cloth. $55.00. ISBN: 0226520730. Paper. $20.00. ISBN: 0226520749.

Reviewed by David Mednicoff, Center for Public Policy and Administration and Department of Legal Studies, University of Massachusetts – Amherst. Email: mednic [at] legal.umass.edu.

pp.944-947

Like international law more generally, international human rights faces three major contemporary current challenges, which stem in part from the field’s remarkable success. Perhaps the most salient challenge comes from the fact that some of the very nations most responsible for the contemporary human rights regime, such as the US, have ignored or argued against the binding nature of specific elements of this regime in the aftermath of the attacks of 9/11/01. At the same time, human rights law continues to fend off persistent attacks from non-western governments, who claim that it serves Western economic or other neo-imperial ends and often posit international human rights as the enemy of national culture. Third, the growing professionalization of human rights has led some analysts to bemoan the current field’s limitations in addressing some of the cosmopolitan or humanitarian ideals underpinning the human rights movement (e.g., Kennedy 2004). Especially when human rights seem to take a cramped back seat to the politics of national security, it is difficult for cultural relativists, human rights workers and recent critics of human rights professionalism to translate each others’ concerns and experience into productive intellectual and practical discourse.

This translation problem undergirds and informs Sally Engle Merry’s thoughtful and usefully detailed new book, HUMAN RIGHTS AND GENDER VIOLENCE. Merry goes beyond sweeping claims about culture or human rights efficacy to elucidate some of the complex, but ultimately fruitful patterns through which local and transnational rights activists promote and adapt international rights to mitigate issues of discrimination and violence against women in a variety of particular cases, including Fiji, Hawaii, Hong Kong and India. The book does a variety of things quite well, but two stand out. First, Merry cuts through clichés about the local and the global to articulate clearly some specific dilemmas that exist in translating international human rights to the vernacular of particular social contexts. Second, she illustrates the working out of these dilemmas through a variety of nuanced and diverse case studies.

The book’s structure is a logical reflection and reification of one of its principal arguments – that the content of human rights norms tends to be shaped more from the [*945] global to the local than in the other direction. Thus, each chapter moves progressively through a different dimension of human rights actors and structures, in a broad sweep from the global towards the local, thereby adding general analysis and specific case contexts for how human rights are contested and translated within and across these dimensions. After introducing her topic, explaining her (largely ethnographic) methodology and providing general background to human rights in the early part of the book, Merry proceeds to look at the international promulgation of women’s rights (Chapter 3), disjunctions between international rights and rights politics at the national level (Chapter 4), translation of rights to frames that work in terms of local activism (Chapter 5), and the impact international human rights has on identity-formation of activists on the individual level (Chapter 6). The book’s organization carries the considerable advantage of fostering thoughtful questions and generalizations within sufficiently focused dimensions of women’s rights actors to avoid essentialist dichotomies or vague pronouncements about human rights everywhere.

Merry thus covers a great deal of intellectual and geographical territory. This strength of the book, its use of many varied cases, can at times be a minor weakness – some cases and contexts get more convincing or thorough treatment than do others. For example, in Chapter 2, which discusses international legal debate and codification of women’s human rights, Merry describes herself intriguingly as engaged in ethnographic participant-observation of the culture of cosmopolitan civil servants and activists who are responsible for the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) (pp.30-31). This anthropological stance is an interesting and fair-minded approach that facilitates the unpacking of assumptions that transnational rights workers bring to their efforts. At the same time, it carries the risk of creating some artificial intellectual distance between this part of Merry’s discussion and the context of transnational activism that will likely be familiar to many readers. While I found this discussion thought-provoking, I also felt the ethnographic posture encumbered somewhat the integration with other insights from political science and international legal literatures that are based more directly on the insights of these rights activists themselves.

Cases with which Merry has the most familiarity (and about which she provides the most detail) tend to be more illuminating than those based on less sustained research. For instance, in Chapter 4, Merry shows how the customary practice of bulubulu in Fiji is both more nuanced and diverse in methods and outcomes than transnational women’s activists usually argue to be the case. This is a fascinating and indispensable discussion of the mistranslations of local cultural practices at the global level that contrasts somewhat with the shorter, marginally less illuminating case study of the reform of Indian personal laws in the same chapter. The depth of insight of the more detailed cases, such as those of Fiji, the Chinese domestic violence education and publicity campaign (Chapter 5), and the female inheritance movement in Hong Kong (Chapter 6), made me wish for even more elaborate [*946] consideration of these cases. However, I appreciate at the same time Merry’s commitment to include enough cases to suggest geographic and analytical variety in how translating global women’s rights to local practices plays out in Asia and the world.

The book’s numerous and articulate case studies are framed by five conundrums that comprise the challenge of reifying international human rights in particular contexts (p.5). These are (1) the conflict between rights universalism and the particular location and experience of local rights practitioners, (2) the tension between the appeal of rights if they are cast in locally familiar terms and their ability to be effective through challenging commonly-understood notions of power, (3) the greater local marketability of rights when they are framed in terms of values or images versus their greater transnational comprehension and funding appeal when framed in terms of broad legal principles, (4) the need for rights to be implemented through institutions which are often in need of development because of weakness in local rights practices, and (5) the way that human rights both can erode but nonetheless depend on the authority of nation-states. These dilemmas are familiar to both students and practitioners of human rights, but are stated succinctly in the book, and clearly connected to the case studies and insights that follow.

Consistent with the richness and diversity of her case study materials, Merry wisely eschews simple answers to these five conundrums. Instead, she underscores two major themes. First is the very complexity of interaction and translation among varied human rights players and levels, from the global to the national to the local, in implementing international human rights law that is suggested by the five conundrums. Second is the need that follows for a usefully complex understanding of culture grounded in contemporary anthropology’s insights that see culture as consistently based in contestation and change (p.228).

This second point in itself may not seem controversial to the book’s more knowledgeable readers, including those in disciplines other than anthropology, where sophisticated treatments of culture have recently emerged (e.g., Swidler 2001; Wedeen 2002). However, Merry does an invaluable service by marrying a broad methodological prescription for the analysis of human rights issues to a multi-layered discussion of diverse, compelling cases. Indeed, Merry’s lucid writing, diverse tiers of analysis and insightful case studies ensure that this book is appropriate for both scholars and undergraduates with even a passing interest in human rights, ethnography or contemporary women’s activism.

In the end, the book provides a forceful call to enlist the nuanced tools of cultural anthropologists and others familiar with non-western law and politics in the service of a spirited defense of the continued political vitality and impact of universal human rights law. At heart, Merry believes in the potential of law to transcend the subordination of people to political order and to work towards social justice (p.231). Some may see this belief as [*947] naïve when considered alongside some of the Foucaultian analyses of law and culture or the critiques of human rights as neo-imperial that Merry acknowledges and knows so well (pp.185-188, 226). However, her clear-headed analysis and specific contextualization of cases generally dispel any such impression. If nothing else, Merry’s rich ethnography underscores that human rights discourse and law are here to stay, even in the face of both governmental and intellectual challenges.


REFERENCES:

Kennedy, David. 2004. THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM. Princeton: Princeton University Press.

Swidler, Ann. 2001. “What Anchors Cultural Practices.” In Theodore R. Schatzki, Karin Knorr Cetina, and Eike von Savigny (eds). THE PRACTICE TURN IN CONTEMPORARY THEORY. London: Routledge (74-92).

Wedeen, Lisa. 2002. “Conceptualizing Culture: Possibilities for Political Science.” 96 AMERICAN POLITICAL SCIENCE REVIEW 713-728.

© Copyright 2006 by the author, David Mednicoff.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review

 

DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL

by Mark A. Graber. New York: Cambridge University Press, 2006. 278pp. Hardback. $40.00/£25.00. ISBN: 0521861659. eBook format. $32.00. ISBN: 0511223196.

Reviewed by Thomas M. Keck, Maxwell School of Citizenship and Public Affairs, Syracuse University. Email: tmkeck [at] maxwell.syr.edu.

pp.939-943

DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL is the most interesting and original book on American constitutionalism that I have read in years. In just over 250 pages of text, Mark Graber argues that the Taney Court’s infamous decision in DRED SCOTT v. SANDFORD was legally defensible no matter what theory of constitutional interpretation one adopts, that the complex electoral system created by the original Constitution caused the Civil War and exacerbates the polarization of American politics to this day, and that the American electorate in 1860 was wrong to choose Abraham Lincoln.

Graber’s ambitions here are so broad that they cannot be fully realized, but he makes a strong case on all three counts. The third one is the toughest sell, but even there, Graber’s striking – indeed, almost preposterous – framing of the argument (“Voting for John Bell”) serves to advance an intriguing point about the relative values of constitutional justice and constitutional peace.

In Part I of the book, Graber explores “The Lessons of DRED SCOTT,” and they are not the ones most often drawn. While advocates of virtually all modern constitutional theories present the decision as Exhibit A in their case against rival theories, Graber emphasizes that all theories of constitutional interpretation can yield unjust results. All of them, indeed, can yield Taney’s decision in DRED SCOTT.

Robert Bork criticized the decision on originalist grounds, but Graber makes a strong case that it was consistent with the original understanding: “Taney declared that his arguments were rooted in the original intentions of the framers and in judicial precedent” and “[m]uch historical evidence” supports this claim (p.46). Taney’s historical assertions were not infallible, but neither were those of dissenting Justices Curtis and McClean, and Taney’s arguments were at least as consistent with the 1787 Constitution as any other slavery policies that were on the table. Similarly, Robert Jackson and Robert McCloskey criticized the decision on judicial restraint grounds, but Graber makes a strong case that it was, “if not perfectly majoritarian, certainly consistent with the policy preferences of the dominant national coalition before the Civil War” (p.30). On Graber’s account, it is simply wrong to accuse Taney of “impos[ing] a judicial solution to the question of black citizenship or slavery in the territories on a hostile Congress or nation. The DRED SCOTT decision was as majoritarian as any other race or slavery policy made during the 1850s” (p.35). Finally, Christopher Eisgruber and William Wiecek criticize the decision for [*940] ignoring the aspirational principles of the Constitution, but Graber makes a strong case that the antebellum Constitution included powerful pro-slavery “aspirations.” Those may not be the aspirations we would emphasize today – and they were not the only ones available in 1857 – but “[j]ustices who make aspirational arguments will base their rulings on the values that they think place the constitutional order in its best light. For Southern Jacksonian jurists during the mid-nineteenth century, those values included both slavery and white supremacy” (p.76).

In short, “[s]lavery concerns were sufficiently accommodated throughout antebellum American history to provide committed proponents of human bondage with the evidence necessary to make plausible arguments for the result in DRED SCOTT using any constitutional logic. DRED SCOTT was constitutionally permissible because American popular majorities supported racist practices, the framers in 1787 provided some degree of protection for that racist institution, many framers had racist aspirations, and proponents of slavery had established additional precedents supporting their practice during the years between ratification and the Civil War” (pp.85-86). Building on Rogers Smith’s influential work, Graber argues that in a polity characterized by liberal, republican, and inegalitarian traditions, there will always be constitutional arguments available on both sides of tough questions. As with subsequent constitutional debates over school segregation, abortion, and the death penalty, proponents and opponents of slavery were each able to find ample constitutional traditions supporting their cause (p.87). The real lesson of DRED SCOTT, then, is that “constitutional theory cannot mitigate or eradicate constitutional evil” (p.18).

In Part II, Graber traces the constitutional politics of slavery from the founding to the Civil War, elaborating the complex interaction among partisan, electoral, and institutional dynamics during this period. He places particular emphasis on the ways in which the institutional design of the original Constitution, especially the complex system of electoral representation and separated powers, shaped subsequent patterns of partisan conflict and policy debate, in both intended and unintended ways.

Graber begins with a familiar observation regarding the framers’ skepticism of “parchment barriers”: in their virtually unanimous view, “the best way to limit government power was by careful design of government institutions” rather than by the specification of legally enforceable rules (p.98). This point is usually noted with regard to the absence of a Bill of Rights, but Graber emphasizes that the framers’ skepticism also applied to their effort to enumerate the legislative powers of the national government. On the slavery question, for example, the framers chose not to “bind government in advance to a specific set of policies,” but to “design[] governing institutions they thought would always be exquisitely sensitive to Southern concerns” (p.101). The idea here was that the electoral college, equal representation of the states in the Senate, and the partial counting of slaves for [*941] apportioning the House (i.e., the three-fifths clause) would effectively provide a sectional veto to both the north and the south. In other words, no national slavery policy could be adopted unless it received some bisectional support. In designing these institutions, however, the framers wrongly assumed that population would move southwestward, granting the South a lock on the House and the presidency. The unexpected northwestward movement during the Jacksonian era reversed the anticipated institutional loyalties, as the House became the most antislavery institution and the Senate became the South’s bastion of defense (pp.108-109). For a while, leading statesmen were able to adapt the original institutions to maintain the sectional balance of power; particularly significant here were the Jacksonian party system (with both parties competing nationally for votes) and the Court’s power of judicial review (with five southern circuits guaranteeing a pro-slavery majority).

But the center could not hold forever; “[a]s population moved northwestward and attitudes toward slavery hardened, a constitution designed to promote bisectional compromise proved a better vehicle for promoting candidates and parties with sectionally divisive platforms” (p.115). In 1820, free state and slave state legislators had been able to agree on the Missouri Compromise, but by 1850, continued population growth in the north had produced a large free state majority in the House and a smaller one in the Senate, and a potential free state lock on the electoral college as well. In this changing context, ambitious national political elites concluded that sectional conflict could promote their interests better than the existing lines of partisan cleavage. In the mid-nineteenth century – as in the early twenty-first – the system of local elections for the national legislature fostered sectional polarization. Similarly, the electoral college made it possible for a sectional candidate to win the presidency; “[a]fter 1845, antislavery advocates could gain the presidency by appealing to the average Northern voter instead of the average national voter.” Lincoln’s election in 1860 with less than 40% of the popular vote, Graber notes, “was made possible by constitutional rules no other democracy adopts” (pp.160-161).

Drawing out the lesson for modern constitutional conflicts, Graber observes that “[w]hen public opinion on any bitterly contested issue is geographically concentrated, an institution staffed exclusively by persons elected by local constituencies is unlikely to be capable of reaching a middle ground. Moderation is particularly unlikely when the decision-making process includes numerous veto points that enable sizable minorities to defeat centrist proposals. The institution most likely to fashion a workable compromise is one whose members are selected by a national political process that favors political moderates and whose decision rules empower the median member. The Taney Court was such an institution” and, Graber suggests, the modern O’Connor Court may have been such a “forum of compromise” as well (p.36). While constitutional theory cannot resolve polarized political conflicts, constitutional courts may be able to do [*942] so, provided they do not pursue constitutional justice at all costs.

In Part III, Graber argues that we should generally prefer constitutional peace to constitutional justice. In the course of this argument, he offers the most trenchant critique of Lincolnian constitutionalism that I have read. Lincoln advanced a majoritarian vision of the Constitution under which northern Republicans, once duly elected to national office, were free to ban slavery in the territories even without any southern support. One problem with this claim, Graber notes, is that Lincoln did not in fact have a working majority in favor of banning slavery in the territories. He was elected in 1860 with the smallest portion of the popular vote for any president in American history, and his Republican Party captured only 31 of 64 seats in the Senate and 106 of 237 in the House. In addition, Graber complains, Lincoln’s majoritarianism “is neither an axiom of democratic theory nor the fundamental procedural commitment underlying the Constitution of 1787” (p.187). The framers and the Jacksonian Democrats who followed them established what modern political scientists call a “consensus democracy” rather than a majoritarian one. A number of proposed antebellum constitutional amendments – most famously, John Calhoun’s system of concurrent majorities – would have made this commitment more explicit, but it was present nonetheless.

While Lincoln asserted that the original Constitution was committed to democratic majoritarianism and the eventual abolition of slavery, Graber argues that the original Constitution was more committed to maintaining the system of human bondage and to consensus on sectional issues more broadly (p.239). Since the constitutional rules designed to require bisectional compromise were no longer working, Lincoln was able to win office with no southern votes, and in this context, a vote for Lincoln represented a significant threat to constitutional peace. Lincoln’s gamble worked out pretty well, but it might have failed. If the south had won, the enormous human costs of the war would have been for naught, and so Graber casts his vote for John Bell, the candidate most committed to preventing secession and war.

As I have noted, it is difficult seriously to entertain the possibility of voting against Lincoln in 1860, but Graber uses this striking suggestion to call attention to the continued tradeoffs between constitutional justice and constitutional peace today. On Graber’s account, “[c]ontemporary Lincolnians assert constitutional commitments to the right to die, sexual privacy, and color-blind policies that are an anathema to many of their fellow citizens.” Contemporary followers of John Bell, in contrast, “regard constitutional theories based entirely on aspirations to justice as legally fruitless and politically offensive.” Since polarized constitutional controversies do not generally yield clearly correct answers, we should instead emphasize the ways in which “[c]onstitutional institutions foster social peace by privileging policies that most citizens will tolerate.” On this account, “[j]udicial review is constitutionally desirable . . . because [*943] justices often reach centrist decisions on matters that badly divide national legislatures” (pp.245-249).

Where regime survival is uncertain, the priority of constitutional peace is particularly crucial. Contemporary Americans have more leeway to pursue constitutional justice than did Americans in 1860 (or citizens of less stable democracies today), but we may still be seeking too much of it. While partisan activists and constitutional theorists have devoted most of their energy toward “advancing the best plausible interpretation of the Constitution,” some of our leading constitutional judges have instead tried to “fashion[] the most broadly acceptable plausible interpretation of the Constitution” (p.252). Graber’s call for us to join this latter effort deserves a wide audience, in the discipline and beyond.

CASE REFERENCE:
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856).

© Copyright 2006 by the author, Thomas M. Keck.

Labels:

Continue Reading...

Back to Top   Permalink Print this Review