CONSTITUTIONAL LAW AND NATIONAL PLURALISM

by Stephen Tierney. Oxford and New York: Oxford University Press, 2004. 392pp. Hardcover. £60.00/$140.00. ISBN: 0199265569. Paperback (2006). £24.99/$49.95. ISBN: 0199298610.

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, garruego [at] unizar.es.

pp.649-652

CONSTITUTIONAL LAW AND NATIONAL PLURALISM addresses the nature of the plurinational State from the perspective of Constitutional Law theory. As Stephen Tierney stresses in the preface of his book, though the emergence of sub-state nationalism in liberal democracies has been studied at length since the 1960s, this has been done mainly, not by Constitutional lawyers but by sociologists, political scientists and political philosophers, who have analyzed issues such as the origins and dynamics of the national identities, the impact of the awakening of the national feeling in terms of electoral behavior and political party systems, and normative questions concerning the rights claimed by sub-state national groups. In this sense, Tierney argues that “constitutional lawyers and legal theorists have rarely addressed the sociological reality of the plurinational State as a subject worthy of discrete study” (p.viii).

Departing from the work done from these other social science perspectives, the main goal of the book is to provide a new Constitutional Law framework in order to analyze the plurinational State, overcoming the alleged limitations and obsolescence of the traditional dichotomies provided by Constitutional theory (federal-unitary, nation-region, sovereign-subordinate, Law-politics). In this sense, one of the main claims of the book is that the plurinational State is a “discrete category of multilevel polity” characterized by the presence of more than one national group and defying the traditional and standard conceptual framework of liberal constitutionalism. This is the reason why Tierney “argues for a new approach to Constitutionalism, a new suit of clothes which will better fit the deep and real territorial pluralism of our time . . . If this book has a central purpose, it is to explore the possibilities of re-imagining traditional approaches to liberal constitutionalism in order to provide a better alignment between the discipline of Constitutional Law and the needs of the plurinational State today” (p.viii).

Focusing on the cases of Catalonia (Spain), Quebec (Canada) and Scotland (United Kingdom), Tierney examines the challenge posed by sub-state national societies, not only to the constitutional structures of their respective host States, but to the fundamental normative precepts that inform contemporary constitutional theory. The election of these case studies finds its justification in four different reasons: (a) the three of them constitute sub-state national societies with strong and distinctive national identities; (b) in recent decades strong nationalist movements have mobilized within them; (c) though they [*650] already enjoy a very high degree of political autonomy, there still remains “a strong political impetus for further constitutional development” within them; and (d) they belong to very different constitutional systems, though all of them are constitutional liberal democracies.

Within this framework, one of the main conclusions of the book is that the plurinational State is a viable and valuable model of polity. Tierney argues that in the same way as the State is required to reconsider the reality of its autonomy (sovereignty) in a world of economic interdependence and globalization and increasingly powerful international organizations, sub-state nationalists “are also obliged to rethink whether terms such as ‘sovereignty’ and ‘independence’ are in fact losing their purchase” (p.18). In this context, one of the main ideas of the book is that the plurinational State is potentially an ideal constitutional model for the sub-state national society: “the combination of autonomy and representation or inclusion . . . reflects the deep ambivalence within sub-state national societies which want to step out independently into the global sun while appreciating the political and legal security offered by inclusion in a larger State” (p.19).

In this sense, the first of the two parts into which the book is divided, provides a series of normative principles which, according to Tierney, should inform the debate over the better constitutional accommodation of the sub-state national societies within the plurinational State. These are the principles of:

a) Self-determination, as each demos within the State possesses a qualified right to determine its own constitutional future, which, in the context of the book, does not necessarily mean secession, but “that [the] national status [of the sub-state national society] should be reflected in extensive autonomy.”

b) Representation, which calls for the accommodation of the plurinational nature of the State through full representation of sub-state national societies as “constitutional coequals with the host state national society at the heart of the state, both in the processes by which the Constitution is amended and in the operation of the central organs of governance, including the legislature and the judiciary” (p.126). In the author’s view, recognition of the constitutional role of sub-state national societies as coequals should preserve distinctive nature of the state—in other words, in an asymmetric way with regard to any other sub-state national societies or regions.

c) Recognition, which calls for the reflection of the plurinational nature of the State in the overall “spirit” of the Constitution.

d) Reciprocity, which reminds the sub-state national society that it owes duties both to the host State national society and to any other sub-state national society. This includes, for example, reciprocally recognizing the national status of any other of these societies, to work in good faith to consolidate the State as a common polity or to fully respect the rights and interests of all citizens within the State. [*651]

e) Democracy, which means that seeking constitutional accommodation is only legitimate if it is effected by the members of the group acting democratically. Therefore, “new constitutional models of autonomy, representation and recognition of sub-state national societies, besides requiring the agreement of the host state, are in normative terms wholly contingent upon the subjective will of members of the sub-state national society to bring about such change” (p.127).

In addition to these principles, Tierney considers that there are four relevant issues both in practical and normative terms to the question of constitutional accommodation. These are (a) the issue of cultural pluralism, which stresses the importance of inclusiveness and respect for diversity, (b) the issue of fluid identity patterns, which highlights the open nature of the patterns of identity, (c) the issue of host State societal dominance, according to which plurinational liberal States lack societal neutrality (which, among others, means the existence of a dominant society within the State), and (d) the issue of dispersed governance, reflecting the changing role of the Nation State in the age of globalization. With regard to sub-state national societies, particularly in Europe, absolutist constitutional options like independence or secession become “increasingly redundant” in a context of State interdependence.

As noted above, the book is structured in two parts. Part One includes four chapters, focusing on the theoretical approaches to national pluralism, and Part Two (Chapters Five to Nine), deals with the constitutional accommodation of the three case studies, Catalonia, Quebec and Scotland.

Chapter Two addresses liberal nationalist theories according to which sub-state national societies constitute a distinct category different from both the dominant national society and other minority groups, but they are also entitled to distinctive constitutional accommodation within their host State, due to their historical and societal particularities and the dissatisfaction felt with their current institutional arrangements. Chapter Three takes this argument further, asserting that sub-state national societies perform important identification and functional roles for the individual member in a democratic plurinational society and refutes the negative visions provided by some social scientists of sub-state nationalism as atavistic and revanchist. Tierney argues that no State is neutral in cultural and societal terms, but also that “it is in fact partly as a consequence of the often oppressive or at least marginalizing, influence of the dominant, statal national identity [sic] that sub-state groups feel the need to seek enhanced recognition and autonomy” (p.47). Part One ends with an analysis of the current challenges faced by Nation States and how sub-states’ national demands have to be located within that context of global political and legal changes.

Chapter Five opens the second part of the book with an analysis of the constitutional amendment processes in Spain, Canada and the United Kingdom. These processes are examined in terms of two sets of relationships: the [*652] relationship between the sub-state national society and the host State, which “recalls the principles of self-determination, representation, recognition and reciprocity,” and the interaction of the Government and the citizens, which recalls the principle of democracy. Chapter Six then moves to the study of the substantive constitutional status of the three sub-state national societies through the perspective provided by the principles of autonomy, representation and recognition.

Once the constitutional status of Catalonia, Quebec and Scotland, and the procedures to amend the Constitutions of Spain, Canada and the UK in order to fully accommodate the three sub-state national societies have been analyzed, Chapter Seven focuses on the role played by courts in the three national systems. Though the main issue in the chapter is assessment of the decision taken by the Supreme Court of Canada in the Quebec Secession Reference, Tierney also focuses on the role played by the Spanish Constitutional Court with regard to the autonomous communities system, mainly by examining the constitutional disputes provoked by the Organic Law for the Harmonization of the Process of Self-Government (LOAPA), and the situation in the UK. Finally, Chapter Eight examines the recent use of referenda in the management of host-state sub-state relations, and Chapter Nine gives a final overview of the different issues analyzed in the book.

In general terms, but especially in the first part of the book, the reader may find Tierney’s argumentation is too linear, even Manichaean, and requiring further explanation. This is especially evident with some of the central theoretical ideas of the book. For example, Tierney contends that the democratic constitutional liberal State lacks neutrality with regard to sub-state national societies; thus there exists a dominant host-state society with an “oppressive or at least marginalizing” attitude towards sub-state national societies. This argument is not well developed and needs much more supporting evidence.

Problems increase when the reader moves to the second part of the book, where there are a number of factual errors. For example, Tierney’s consideration of the Spanish constitutional system has a number of problems. For example, he describes the eventual constitutional conflicts between the Spanish State and the Autonomous Community of Catalonia, as conflicts between “Madrid and Catalonia;” he considers the process of elaboration of the Statutes of Autonomy in terms of constitutional reform; and, contrary to what Article 152 of the Spanish Constitution prescribes, he asserts that the amendment process of all Statutes of Autonomy is subject to popular referendum.

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© Copyright 2006 by the author, Gonzalo Arruego.

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THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE

by Mary Sarah Bilder. Cambridge, MA: Harvard University Press, 2004. 308pp. Hardcover. $52.50/£33.95/€48.40. ISBN: 0674015126.

Reviewed by: W. Wesley Pue, Nathan T. Nemetz Chair in Legal History, University of British Columbia. Email: wpue [at] interchange.ubc.ca.

pp.645-648

Interesting and informative in equal measure, Mary Sarah Bilder’s TRANSATLANTIC CONSTITUTION explains how constitutionalism worked in colonial America. This will surprise and fascinate readers who imagine that the notions of “constitution” and Empire are mutually exclusive. Even those familiar with the ways of the British Empire will, however, learn much from Bilder’s fine-grained exploration of Imperial Constitutionalism.

The book’s focus is an extended “conversation” between Rhode Island colonists and London officials over a period of a century and one-half of extraordinary transitions. The book covers the years from the first Rhode Island Charter (1644) to the early American republic. The original colonial Charter and its post-Restoration replacement (1663) required conformation with the laws of England unless circumstances peculiar to the colony required divergence. The 1663 wording required that Rhode Island’s constitution, ordinances, and laws were to be “not contrary and repugnant unto, but as near as may be, agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there” (quoted at p.41). Bilder argues that the essence of the “transatlantic constitution” is to be found in the processes negotiating the spaces between legitimate divergence and repugnancy. With this as her frame of reference, she diligently traces the contours of the constitution as it was lived over time.

The essential “Englishness” of early Americans is a strong theme that emerges throughout the book. This will not surprise specialists in colonial history, but the book illuminates the theme well. An essential starting point – which could have been lost sight of – is Bilder’s recognition that variance between “common” law and local custom was no colonial innovation. The tension was, indeed, the essence of English homeland constitutionalism. The question of the extent to which an English colony might properly diverge from English law is properly understood as part of a larger tale of transformations in the understanding of law and, indeed, of England itself. Bilder explains that, simultaneously with North American colonization, the English were adapting their views of law from arrangements primarily “suited for local circumstances” to something “signifying national uniformity.” In the result, “the colonial relationship evolved along with the English political state” (p.35). Bilder evocatively describes Coke’s 1628 INSTITUTES, for example, as marking the transformation of “a geographically defined nation into a legally defined one” (p.33). The imposition of a single “English” law was innovative in [*646] England itself, and more so when imposed on Ireland, Wales, the Channel Islands and the Isle of Man. Even as such centralizing processes played themselves out within the British Isles, however, the logic of local divergence and local adaptation provided a persuasive source of local resistance in many cases (pp.34-35). Across the sea, Rhode Island attorney William Morris understood arguments about divergence and repugnancy as part of English domestic law. He was informed in part by Lambarde’s PERAMBULATION ON KENT, “which described the legitimacy of local custom in English law and linked Kent’s divergence . . . to the history of the county’s people, land, and legal institutions” (p.42). The meanings of Englishness were, to some significant extent, negotiated amongst the English on both sides of the Atlantic (p.145).

Understanding this very English base-line is important to a proper appreciation of the cultures of colonial constitutionalism, and Bilder is to be commended for taking the task to heart. Though explicit discussion of the Englishness, the transition from customary to common law, the notion of the “equity of the statute,” and such-like are limited to a few pages, the informing sensibility suffuses the entire work. The relations amongst peoples and institutions on both sides of the Atlantic, all of, though not all in England is a powerful theme (and one which has registered significantly in other places and other times, notably the works of Michael J. Thoms (2004) and Douglas Harris (2001)). There is certainly more to be made of this insight, but Bilder makes a significant contribution that deserves to be read by colonial and post-colonial historians everywhere, not just in the deviant colonies that became the United States of America.

Bilder traces the evolving contours of the transatlantic constitution – too often rather superficially and glibly understood by others as having to do only with “reception” statutes and dates – through a magnificent unpacking of its inner workings. Her raw materials include diverse sources located on both sides of the Atlantic, encompassing lawyers’ papers, public archives, litigation records, records of parliamentary practices, and so on. The book is divided into three parts. Part I, “The Transatlantic Legal World,” includes chapters on “Legal Practitioners and Legal Literates,” “The Laws of England,” and “The Laws of Rhode Island.” Much of the base-line is established here, while the dynamic evolution of the transatlantic English constitution is revealed in Parts II and III. These are, respectively, headed “Transatlantic Legal Practice” and “Visions of the Transatlantic Constitution.” Part II includes chapters on “The Transatlantic Appeal,” “Women, Family, Property,” and “Personnel and Practices,” while Part III deals with “Religious Establishment and Orthodoxy,” Commerce and Currency,” and “The Transatlantic Constitution and the Nation.”

There is much more in this splendid, short, book than can be properly acknowledged within the space of a book review. The issues at the centre of Rhode Island’s transatlantic [*647] constitutionalism evolved over time from contests focused on uniformity or divergence in property law (hence, inheritance, and gender relations) during the years up to the 1730s, to negotiation of religious freedom and questions concerning uniformity of commercial laws or currency regulation thereafter. For the most part, there was little contest over constitutional fundamentals, but much focus on the meaning of agreed principles in particular contexts. In the chapter on “Women, Family, Property,” for example, we are told that, because “transatlantic jurisprudence did not offer a certain answer as to when English law applied . . . Rhode Islanders picked their way among the laws of England and Rhode Island” (p.103). The many sources of English law provided a “buffet from which colonial attorneys could select the arguments necessary to bring, win, and defend cases for individual litigants” (p.115).

By the end of the eighteenth century, of course, things were somewhat less civil, less consensual, and less polite. Like a “B” movie, everyone knows the end point of “colonial America” before they get there: Boston’s wharf-side charivari and the rest of the “Revolution” loom, ever-present, in the background. None of the lead-up to revolution is much discussed in Bilder’s work, no doubt for the very good reason that this particular terrain has been well-mapped.

The concluding chapter is dedicated to showing what good “Brits” the rebellious “Americans” were (and what faithful seed of Albion their descendents have become). This short chapter offers many insightful comments on state constitutions, judicial review, and the character of the USA constitution. The enduring impact of the “transatlantic constitution” is well captured in Bilder’s concluding chapter:

Although the formal structure of the transatlantic constitution ended in 1776, its legal arguments and cultural practices continued to influence the American nation. Transatlantic legal culture had been like an enormous American chestnut tree that had permanently affected the development of all in its shade. Erasing this legal culture proved more difficult than repealing the appeals law and excising the king’s name from the charter. The legal culture of the colonies had grown to maturity as part of a conversation about when the laws of England applied and when local laws and practices could diverge because of the people and place. This culture came to revel in the existence and tension of dual authorities, it understood the advantages and disadvantages of having a distant decisionmaker, and linked constitutional interpretation to the changing substantive concerns of the empire. The loss of the transatlantic relationship was dramatic. Although Americans rejected the tree, they planted new saplings to cast similar shade. (p.186)

Just so.

“America,” welcome back to the British world! We’ve missed you.

REFERENCES:
Harris, Douglas. 2001. FISH, LAW AND COLONIALISM: THE LEGAL CAPTURE OF SALMON IN BRITISH COLUMBIA. Toronto: University of Toronto Press. [*648]

Lambarde, William. 1656. THE PERAMBULATION OF KENT. London: Mathew Walbanke.

Thoms, J. Michael. 2004. OJIBWA FISHING GROUNDS: A HISTORY OF ONTARIO FISHERIES LAW, SCIENCE, AND THE SPORTSMEN'S CHALLENGE TO ABORIGINAL TREATY RIGHTS, 1650-1900. [microform]. Ph.D. dissertation, History, University of British Columbia.

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© Copyright 2006 by the author, W. Wesley Pue.

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AT WAR WITH CIVIL RIGHTS AND CIVIL LIBERTIES

by Thomas E. Baker and John F. Stack, Jr. (eds). Lanham, MD: Rowan & Littlefield Publishers, Inc, 2005. 272pp. Cloth $65.00. ISBN: 0-7425-3598-3. Paper. $26.95. ISBN: 0-7425-3599-1.

Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania. Email: BSWEET [at] clarion.edu.

pp.640-644

This collection, edited by Thomas Baker and John Stack, addresses the highly salient dilemma of maintaining our constitutional rights during a time of war. The contributions are primarily from notable constitutional scholars, but also from two key institutional players, Supreme Court Justice Stephen G. Breyer and former Attorney General John Ashcroft.

The piece by Justice Breyer is the text of a speech he gave to the New York City Bar in 2003, which was very similar to one he had delivered in Paris a few months earlier. Without showing his cards, Justice Breyer provides a very thoughtful discussion about how we can maintain our rights during the war on terrorism. He reminds us that the Constitution still applies in wartime and it requires that we balance individual and community interests. We have often made mistakes in the past when balancing these interests, but we can learn from those mistakes. Furthermore, we can avoid mistakes by learning from practices of other countries when they face the same challenges. Other countries may have developed less restrictive alternatives when facing threats to national security. He concludes by indicating that judges are not the only actors in determining our rights. In addition to legislators, the citizenry plays a role through open debates in the media, classrooms, and public forums. The fact that such a vigorous debate is taking place is indicative that the system is working. Justice Breyer’s discussion is very reassuring; he communicates faith in both our judicial and political systems.

The contribution from former Attorney General Ashcroft is the text of a speech he gave in the summer of 2003 to law enforcement officers in Boise, Idaho. Referencing Thomas Jefferson, Ashcroft argues that the first responsibility of government is to preserve the lives and liberty of its citizens. He then defends the much criticized USA PATRIOT Act, arguing that the legislation mainly brings our antiterrorism law in line with current practices in other areas of law enforcement and advancing technology. For instance, the legislation allows “sneak and peak” warrants, used previously in organized crime and drug investigations. The Patriot Act allows access to business records when conducting antiterrorism investigations. “Roving wiretaps” are permissible, recognizing that terrorists use multiple methods of communication to avoid detection. The Act also permits a lot more information sharing and cooperation between law enforcement agencies at all levels of government.

Jules Lobel provides an historical overview of the restraints placed on civil liberties and rights during times of war [*641] and emergencies. He also critiques “the war/emergency balancing metaphor.” His historical overview mentions the Alien and Sedition Act of 1798, Abraham Lincoln’s actions during the Civil War, the actions of President Wilson’s administration during World War I and Attorney General Mitchell Palmer after the war, and the internment of Japanese Americans during World War II. In all of these examples restrictions placed on civil liberties were balanced against the perceived need to deal with threats to our security. Lobel indicates three problems with how balancing is done. First, the most severe restrictions are usually placed on the liberties of aliens rather than citizens. Second, the effort to enhance short-term security fails to appreciate the effect on long-term security. Third, an assumption is frequently made that the restrictions will last only as long the war or emergency is a threat to our security. Lobel argues that the war on terror, like the Cold War, may very well be Orwellian and allows infringements on our liberties to go on in near perpetuity. He then discusses specific examples where emergency powers may have been used unreasonably since September 11. Concerns about provisions of the USA PATRIOT Act are also discussed.

The piece by Peter Irons, a critical assessment of Franklin Roosevelt’s record on civil rights and liberties, is a republished law review article written before September 11. Irons basically catalogues the failures of the Roosevelt Administration in dealing with the abridgement of civil rights and liberties. He does this by focusing on the inaction or ineffective actions of FDR’s four Attorneys General. The Roosevelt Administration failed to deal with lynching and instead appeased the Dixiecrats by emphasizing states’ rights. Labor and civil rights laws were either not enforced or only halfheartedly enforced with disappointing results. The Roosevelt Justice Department did have some success in its later years dealing with police brutality and the protection of religious minorities. The most shameful part of Roosevelt’s record was the internment of Japanese Americans. Roosevelt’s policies dealing with subversives and dissidents were also less than admirable. In fact, he utilized many techniques that sound eerily familiar today, such as warrantless wiretapping and maintaining lists of people for possible imprisonment who were perceived as a security risk. Irons concludes that Roosevelt basically had a proclivity to do what was politically expedient and expressed near contempt for civil liberties and rights.

Michael Greenberger examines a technique that the Bush Administration has been using to hold persons suspected of being connected to terrorists without probable cause. Such persons are declared material witnesses and taken into detention for indefinite periods of time. Greenberger provides the specific example of Osama Awadallah who was shuttled around the United States, starting in California, then Oklahoma, and finally New York. His lawyer and family were frequently denied access to him to such an extent they did not even know where he was at times. He was kept in a general prison population and brutalized by correction officers. The Justice Department argued that he was [*642] being held as material witness to ensure his grand jury testimony. Awadallah’s attorney contended that the material witness provision in federal law does not apply to grand jury proceedings. Using the material witness statute in this way is quite rare, with a 1971 Ninth Circuit case being the only legal precedent available. This case did support the government’s position; however, the District Court found that the statute did not apply to grand juries. In a parallel case in the Southern District of New York another judge found that the material witness statute did apply to grand juries. Both of these cases were appealed to the Second Circuit. Greenberger provides a detailed discussion of relevant statutes, federal rules of criminal procedure, and constitutional concerns. Much to Greenberger’s dismay, the Second Circuit came down on the side of the government. He concludes that it is uncivilized to hold material witnesses without probable cause in a coercive environment to obtain unreliable testimony.

Louis Fisher catalogues the expansion of executive power in the wake of 9/11 and the apparent abdication of the other branches in terms of checks and balances. Fisher provides anecdotal vignettes of Arabs and Muslims who were arrested in ill-conceived dragnets right after 9/11. Many were treated quite shabbily and held for a considerable length of time without charges being filed or even reasonable justification. Military tribunals and the Administration’s claim of authority to establish them are discussed briefly. The Administration relied upon the EX PARTE QUIRIN precedent where German saboteurs during World War II were given less than admirable due process. Despite the serious deficiencies of the QUIRIN precedent, the Administration wanted to provide even less for suspected terrorists. The HAMDAN majority, whose opinion was rendered after this book was published, found that the Administration’s military tribunals were unconstitutional. Fisher also discusses specific provisions of the USA PATRIOT Act that authorize nationwide service of search warrants, roving wiretaps, lower the threshold requirement for foreign intelligence surveillance, and “sneak and peek” warrants. Additionally, he raises serious concerns about closed deportation proceedings, concealing the identity of persons arrested, holding people as material witnesses, and classifying detainees as enemy combatants. Fisher concludes that the Department of Justice has considerable power that is further augmented during emergencies, and the attorney general must use it responsibly. It is up to Congress, the courts, the media, and ultimately the citizenry to make sure the executive stays in check.

Mark Graber contributes a piece that is counterintuitive and thought provoking. He argues that civil rights, specifically voting rights, can actually be expanded during wartime. He acknowledges that repressive policies, often dealing with speech, have been instituted in times of war and other national emergencies, but the franchise has often expanded. The three constitutional amendments that expanded voting rights, the Fifteenth, Nineteenth, and Twenty-Sixth, were all closely connected to wars. He suggests [*643] that the American Revolution and conflicts with Native Americans led to the relaxation of the property requirement and eventually to universal white male suffrage. Absentee ballots were first made available during the Civil War. The beginning of the end for poll taxes was seen during World War Two, first for troops during the war and then for veterans after the war. The Democratic white primary also met its end during World War Two. Asian and Native Americans made gains in voting rights as well during the Second World War. Graber also argues that the Cold War partially contributed to the passage of the Voting Rights Act of 1965. The US could not push for free and fair elections abroad when so many Americans were being denied access to the ballot box at home. The expansion of voting rights during wartime is not just an American phenomenon, but has happened in Britain, Belgium, Canada, and Italy. Graber is not optimistic that the War on Terror will lead to an expansion of voting rights or other civil rights because the effort has not required mass mobilization. It has generally been the need for national unity and mass participation that has expanded the franchise and other rights.

Mark Tushnet offers a more theoretical contribution to the anthology. He presents three different arguments for how war and other emergencies should be handled by American constitutional jurisprudence. The first argument is that the same constitutional standards used during non-emergencies should be applied during wartime; however, the fact that the country is at war could be determinative in the application of the standards. The second argument is that significantly different standards should be applied during wartime than are applied during peacetime. The third argument is that during wartime it is possible to justify suspending the application of the Constitution in determining the legality of governmental action. Tushnet seems to be concerned about the potential harm that might follow from precedents being set using the first two arguments. Emergency powers that are rationalized as consistent with the Constitution might become acceptable under other circumstances. He uses Robert Jackson’s dissent in KOREMATSU as an example of this. Jackson suggested that the Court had rationalized racism into the Constitution, and as a result the Court’s decision is a more serious threat to liberty than the military’s relocation order. He also indicated that the courts should not have attempted to interfere with the Army’s order, probably because such an effort would have been futile. Arguably Jackson is suggesting that the Court should have declined to hear the case. Expanding on Jackson’s reasoning, Tushnet concludes that emergencies are occasions for extraconstitutional jurisprudence when there should be a “suspension of legality.”

The final chapter consists of edited excerpts from three terrorism detention cases decided by the Supreme Court in 2004, RUMSFELD v. PADILLA, RASUL v. BUSH, and HAMDI v. RUMSFELD. The first case involves the detention of suspected dirty-bomber Jose Padilla. An American citizen, Padilla was arrested in Illinois and then held in New York. Later he was [*644] transferred to South Carolina and held in a naval brig. Padilla filed a petition for a writ of habeas corpus, but the Supreme Court dismissed it on technical grounds, namely that he had filed the petition in the wrong jurisdiction, New York rather than South Carolina, and named the wrong respondent, the Secretary of Defense rather than the commander of the naval brig in South Carolina. Justice Stevens vigorously dissented, noting the importance of assistance of counsel and the problems of incommunicado detention. The second case, RASUL v. BUSH, involves foreign nationals captured in Afghanistan and held at Guantanamo Bay, Cuba. Fourteen of the detainees filed a petition for a writ of habeas corpus. A key issue was whether the U.S. District Court for the District of Columbia had jurisdiction. Justice Stevens, writing for the majority, concluded that since the United States has “complete jurisdiction and control” over the naval base at Guantanamo Bay, the District Court had jurisdiction to consider the petition. The third case involved Yaser Hamdi, an American citizen captured in Afghanistan who was allegedly fighting for the Taliban. The United States contended that Hamdi was an enemy combatant and could be held indefinitely without being charged, given access to an attorney, or provided an opportunity to refute his status as an enemy combatant. A convoluted four-justice plurality opinion, partially supported by two additional justices, indicated that Hamdi must be given the opportunity to contest his designation and detention. This decision and the more recent HAMDAN v. RUMSFELD case provide a glimmer of hope in the effort to maintain constitutional rights during the War on Terror.

In conclusion, Baker and Stack have assembled a thoughtful collection of essays that deal with the difficulty of balancing constitutional rights and security during wartime. The selected essays provide historical background, theoretical insight, and contemporary issues. This volume would prove useful as a supplemental text in a special topics course or a course on civil rights and liberties. The collection also reminds us of the importance of an informed and vigilant citizenry.

CASE REFERENCES:
EX PARTE QUIRIN, 317 U.S. 1, 63 S.Ct. 2, 97 L.Ed. 3 (1942).

HAMDAN v. RUMSFELD, 126 S.Ct. 2749, 165 L.Ed. 2d 723 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed. 2d 578 (2004).

KOREMATSU v. UNITED STATES, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

RASUL v.BUSH, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed. 2d 548 (2004).

RUMSFELD v. PADILLA, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed. 2d 513 (2004).

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© Copyright 2006 by the author, Barry N. Sweet.

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THE POLITICS OF SEXUAL HARASSMENT: A COMPARATIVE STUDY OF THE UNITED STATES, THE EUROPEAN UNION, AND GERMANY

by Kathrin S. Zippel. New York: Cambridge University Press, 2006. 274pp. Cloth $80.00/£45.00. ISBN: 0521847168. Paper $34.99/£19.99. ISBN: 0521609941. e-book format. $28.00. ISBN: 0511159099.

Reviewed by Leslie F. Goldstein, Department of Political Science and IR, University of Delaware, and Visiting Research Fellow at Fordham Law School. Email: lesl [at] UDel.Edu.

pp.633-639

In 1979 Catharine MacKinnon published SEXUAL HARASSMENT OF WORKING WOMEN, and wrote in its preface that up until this time “sexual harassment . . . has been legally unthinkable,” by which she appeared to mean that no officials of the executive or judicial branches, responsible for applying antidiscrimination laws had yet conceptualized sexual harassment as a form of unlawful sex discrimination. When I read that statement, years ago, I took it at face value (Goldstein 1988), but I have learned from Kathrin Zippel’s new book that the statement was an exaggeration.

Zippel’s book, THE POLITICS OF SEXUAL HARASSMENT accomplishes four tasks: (1) It traces the history of the development of sexual harassment policy in three polities—the US, the European Union, and Germany; (2) offers a study of transnational norm diffusion around the issue of sexual harassment; (3) presents an analytic cross-national comparison of the public policies on sexual harassment in the US and in several EU member states, although an in-depth study of two in particular, Germany and the US; and, finally, (4) does a comparative analysis of the social movement against sexual harassment in the US, the EU, and Germany. I found it a fascinating narrative and I learned a great deal from it.

It left me with the dominant impression of wanting more—one author cannot do everything in one book, but I would have enjoyed learning more details on sexual harassment policy in countries of the EU other than Germany; Zippel presents a brief sketch of alternative directions some have taken, but not much more than a sketch. The other detail I greatly missed is that she ends the book chronologically with the election of Angela Merkel to the Chancellorship of Germany in September 2005 and with Germany having only until the end of 2005 to meet its deadline on the binding directive from the European Commission to enact a law against sexual harassment that would treat it as sex discrimination (as well as a violation of human dignity) and that would for the first time have effective enforcement mechanisms. She concludes the discussion with, “the future of the bill is uncertain.” It would have been nice had she been able to hold the presses even a few months in order to tell us whether Germany did or did not comply. One is left wondering what would happen and also without a clear sense of the sanctioning mechanisms available to the [*634] EU to bring Germany and the other member states into compliance.

The story Zippel tells begins with a small group who meet in Ithaca, New York, stimulated by some consciousness-raising discussions to organize a “speak-out” protest against something they decide to call “sexual harassment.” They believe they have invented the term, and perhaps they did. The year was 1975 (pp.53-54). But they were not alone. By January 20, 1975 the EEOC (under Republican President Ford) had filed an amicus brief on behalf of a plaintiff in federal district court who was complaining of having been fired for refusing to have sex with her boss. The brief argued that sex-based harassment was properly interpreted as unlawful sex-based discrimination because the imposition of “frequent, unsolicited sexual advances” imposes an “irrational impediment to job opportunities” and an “unwarranted working condition” that “affected the employment of women” (pp.47-48). She lost her case (CORNE v. BAUSCH & LOMB 1975). But a woman also in 1975 won her complaint at the Minnesota Human Rights Commission that the repeated sexual innuedos and invitations and unwanted, indeed plainly rebuffed, physical contacts of her boss amounted to sex-based discrimination (Farley 1978, at 128-130). On April 20, 1976 a federal district judge in Washington declared that the firing of a woman by her boss for refusing to have sex with him did indeed violate the federal law against employment discrimination based on sex (WILLIAMS v. SAXBE). By 1977, two more federal courts endorsed this reading of the 1964 Civil Rights Act, one of them a federal circuit court of appeals where the father of Catharine MacKinnon, the late Judge George MacKinnnon wrote a concurrence in the decision (BARNES v. COSTLE, July 27, 1977, and MUNFORD v. BARNES, Sept.9, 1977).

The three roughly simultaneous events of 1975-spring 1976 in Ithaca, in Arizona (where Bausch & Lomb was) and in Washington, D.C. do not appear to have any direct connection to each other. But the fact that they occur together is probably not unrelated to the fact that Congress in 1972 (something the author, unfortunately omits) greatly strengthened the reach and enforceability of the 1964 Civil Rights Act’s prohibition on race-based, nationality-based, religiously-based or sex-based discrimination in employment (for firms of 15 or more employees). The prohibition was extended to cover state and federal employees (i.e., many millions more people) and the EEOC for the first time was given the power to take employers to court for violating the act. The year 1972 was the year of probably the peak of the second wave women’s movement in the US (at least to judge from progress of the Equal Rights Amendment), and was also a year of continuing racial tensions around the civil rights movement (including summer race riots in urban areas). (In 1971 the Supreme Court had for the first time upheld cross-neighborhood busing for desegregation purposes in formerly de jure segregated systems. SWANN v. CHARLOTTE-MECKLENBURG.) [*635]

Thus the 1972 legislation from the feminist and civil rights mobilization in Congress is what produces the mid-1970s increase in the flow of discrimination cases into federal courts. In 1972 a federal judge ruled for the first time (ironically, against the EEOC as employer) that the Civil Rights Act’s prohibition on discriminating in “working conditions” meant that employers could be held liable if they did not act to correct a workplace permeated by racial taunts, verbal and/or physical (ROGERS v. EEOC, at 238-9). Such workplaces were common in the American South where the federal government was finally cracking down on whites-only employers, and where the racist white workers were taking it upon themselves to hound black workers into quitting the job. ROGERS v. EEOC is quickly followed by another federal case extending its logic to hostile environment harassment based on ethnicity/nationality (in a Native American case, MASSEY v. ILLINOIS RANGE CO. 1973). It was simply a matter of time for this judicial logic to be extended to hostile environment harassment involving women (which was all too common in all-male workplaces that were forced to accept women co-workers, such as police departments, fire departments, mines, construction sites (e.g., CALDWELL v. HODGEMAN 1981; and JENSON v. EVELETH TACONITE 1993, settled Jan.4, 1999 and topic of the 2005 movie, “North Country”).

So the two forms of sexual harassment legal concepts, “quid pro quo” and “hostile environment” were both born in judicial precedents and in EEOC briefs before the 1979 publication date of the MacKinnon book. But the book and the social movement of which the book was both a stimulus and a part certainly nurtured them. They came to maturation via scandal, especially the Anita Hill-Clarence Thomas hearings of 1991, and also the Jones-Lewinsky-Clinton scandal. The massive publicity given to the Hill-Thomas hearings caused a surge in sexual harassment filings with the EEOC. They nearly doubled from 6,127 in 1991 to 10,532 in 1992, peaking with 15,889 in 1997, the year before the Supreme Court authorized Paula Jones’ lawsuit against President Clinton (p.72).

Much of this story and more is told in the Zippel volume. She briefly alludes to but skimps on the racial civil rights cases background, but there is enough here to guide the reader interested in doing more detailed research. She does mention the role of Congress in drawing attention to sexual harassment in four days of committee hearings in 1979 and 1980, where among others, Eleanor Holmes Norton, EEOC chair under President Carter, gave testimony. The first of these hearings predated and presumably encouraged the 1980 issuance of the EEOC Guidelines on sexual harassment that warned employers about both quid pro quo and hostile environment types of harassment (pp.57-59).

Zippel’s own emphasis is on attempting to find linkages between the feminist social movement and the revolution in sexual harassment policy via judicial policy-making. Her book is stronger on the role of European activists and feminist government officials in [*636] diffusing the anti-sexual-harassment norms that they picked up from visits to the US or from attendance at international conferences where they had conversations with US attorneys, scholars, activists, or officials.

Except for the UK and Ireland (where something closer to the US approach but with much more modest damage awards developed, pp.102; 107-8; 177-9), the sexual harassment policy adopted in European countries tended to avoid policy-making via litigation and to emphasize union-management agreements on anti-mobbing rules for the workplace. Many Europeans were put off by what they viewed as Americans’ silly Puritanical views against flirtatious fraternization in the workplace. So they emphasized the hostile workplace side of the concept by forbidding “mobbing” as a violation of the human dignity of workers. “Mobbing” is the European term for “systematic workplace hostility of long duration” imposed on someone with “the goal of marginalizing and getting rid of him or her” (pp.2, 9). It is unfortunate that Zippel did not bring out more fully the racial- and nationality-grounded background of the US sexual harassment cases, because that would have highlighted for the reader the parallels to the European anti-mobbing approach. The attractiveness of the anti-mobbing approach in Europe is understandable as tensions over immigration intensify there, creating situations with certain parallels to the period of the US civil rights movement. Also, the European emphasis on dignitary harms (as distinguished from equality of treatment) would have been rendered more understandable for the reader had she pointed out the central role of human dignity as a primary constitutional right in the German Constitution and in several other European Constitutions and in the European Charter of Fundamental Rights (Baer 2004, at 589.)

The European story Zippel tells begins in the European Community in 1983 (which became the European Union with the Maastricht Treaty of 1993) and ends before the ten new nations joined the EU in 2004. In 1983, the same year that a tribunal in Northern Ireland ruled sexual harassment unlawful, but well before a court in Ireland did so in 1985, and before the US Supreme Court did in 1986, EC level officials began to push anti-sexual-harassment policies as part of their mandate under the 1976 Directive on Equal Treatment of men and women in employment (pp.18, Table 1.1; 87; 93-96, including Table 3.1; 100, Table 3.2; MERITOR SAVINGS v. VINSON 1986). At first these took the form of “soft” measures, such as a demand for action expressed in the European Parliament in 1983, a 1984 Council of Ministers recommendation to member states that they act on the problem, and a 1986 resolution from the European Parliament recommending that the European Commission (the EC’s administrative arm) take action (pp.93-96).

Why did these European level officials act? Feminist activists in Europe read books by US authors like Catharine MacKinnon (1979), knew of coverage of the issue in US media like REDBOOK, knew of the 1980 EEOC guidelines on sexual harassment in the US, had their [*637] own sexual harassment scandals to deal with, and started agitating for action in the early 1980s (pp.86-90). There is no doubt that the concept crossed the Atlantic from the US, but once in Europe it became transformed to fit European institutional traditions; hence the “mobbing” label. Both feminists and feminist-sympathetic labor union activists worked in tandem in a transnational advocacy network (TAN), which is an alliance of interest group lobbyists, sympathetic officials and scientific experts roughly similar to the concept of “issue network” used in American politics research, except that an issue network includes a variety of points of view, while members of a transnational advocacy network all work on the same side. The TAN that opposed sexual harassment in Europe had much greater success at EC/EU levels at first than at national levels, where male-dominated unions had entrenched control over labor policy. Zippel finds it surprising that the EU moved more quickly than the governments of the member-states did, but this is not such a surprise when one reflects that EU institutions are far less directly accountable to electoral majorities than national governments are. Thus elites in the EU, once committed to change, had more flexibility in which to act. Once the EU started promoting sexual harassment, not only by soft directives, but most importantly by gathering and publishing data that proved that sexual harassment was a serious impediment to equal job opportunity in Europe (Rubenstein 1987), these actions strengthened and emboldened activists at national levels to push for tougher policies. EU measures legitimized the issue as genuinely European rather than merely an American obsession. Zippel describes the political interaction as a kind of ping-pong process, since the lobbyists bounced from supranational level to national level and back, as opportunities opened or closed. She distinguishes it from the “boomerang effect” described by Keck and Sikkink (1998), but never explains to the reader what the boomerang effect is. Gradually, and very incrementally, the EU toughened its stance. It gave the member states more than ample time to adjust their policies under the non-binding directive of 1994, and finally issued a binding directive in 2002 insisting on legislation in every member-state by the end of 2005 that would treat sex-based harassment as sex discrimination in employment and would have enforceable teeth in it. For American readers, the account of how limited Germany’s response has been to these EC/EU pressures will be sobering, not to say depressing. Women victimized by truly vicious levels of sexual harassment even in supposedly “advanced” countries like Germany have very little recourse, to date.

This book offers a treasure trove of information on the anti-sexual-harassment movement in Europe and on its origins in the US. It also offers a sobering account of how difficult it is for EU institutions to move national governments, particularly when those national governments contain entrenched power structures opposed to change. Finally, what stood out to me in her account was the important role played by individual feminists who happened at one moment or another to hold an [*638] important position in EU or member-state officialdom. The importance of having feminist women in positions of power is quietly underlined in her account by her description of several who significantly advanced the development of policies condemning sexual harassment. And explicitly underlined is the pivotal role played by women who occupy the state women’s agencies that were created under EU mandate (i.e., those she dubs “femocrats”).

The book is not perfect; she does not pick up (pp.67, 207) that the US Supreme Court (in HARRIS v. FORKLIFT 1993) has rejected the “reasonable woman’s standard” test endorsed in the ELLISON v. BRADY (1991) US circuit court of appeals judgment that sexual harassment should be evaluated as to its offensiveness or intimidating qualities by the perspective of a typical member of the victim group (generally women), rather than some abstract supposedly objective standard of the imaginary “reasonable person” (see, e.g., Larson 2004, at 137). But on the whole the book is thoughtful, extremely informative, and a fascinating read.

REFERENCES:
Baer, Susan. 2004. “Dignity or Equality? Responses to Workplace Harassment in European, German and US Law,” pp. 582-601 in MacKinnon and Siegel.

Farley, Lin. 1978. SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB. New York: McGraw-Hill.

Goldstein, Leslie F. 1988. THE CONSTITUTIONAL RIGHT OF WOMEN (2d ed). Madison: University of Wisconsin Press.
Keck, Margaret, and Kathryn Sikkink. 1998. ACTIVISTS BEYOND BORDERS: ADVOCACY NETWRKS IN INTERNATIONAL POLITICS. Ithaca: Cornell University Press.

Larson, Jane. 2004. “Sexual Labor” pp.129-137 in Mackinnon and Siegel.

MacKinnon, Catharine A. 1979. SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION. New Haven: Yale University Press.

MacKinnon, Catharine A., and Reva Siegel. 2004. DIRECTIONS IN SEXUAL HARASSMENT LAW. New Haven: Yale.

Rubenstein, Michael. 1987. THE DIGNITY OF WOMEN AT WORK: A REPORT ON THE PROBLEM OF SEXUAL HARASSMENT IN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES. Brussels: Office for Official Publications of the European Communities.

CASE REFERENCES:
BARNES v. COSTLE. 1977. 561 F.2d 983.

CALDWELL v. HODGEMAN. 1981. 25 F.E.P Cas. (BNA) 1647.

CORNE v. BAUSCH & LOMB. 1975. 390 F.Supp. 161. [*639]

ELLISON v. BRADY. 1991. 924 F. 2d 872.

HARRIS v. FORKLIFT. 1993. 510 U.S. 17.

JENSON v. EVELETH TACONITE. 1993. 824 F.Supp. 847.

MASSEY v. ILLINOIS RANGE CO. 1973. 358 F.Supp. 1271.

MERITOR SAVINGS v. VINSON. 1986. 477 U.S. 57.

MUNFORD v. BARNES. 1977. 441 F. Supp. 459.

ROGERS v. EEOC. 1972. 454 F.2d 234.

SWANN v. CHARLOTTE-MECKLENBURG. 1971. 402 U.S. 1.

WILLIAMS v. SAXBE. 1976. 413 F.Supp. 654.

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© Copyright 2006 by the author, Leslie F. Goldstein.

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AWLESS WORLD: AMERICA AND THE MAKING AND BREAKING OF GLOBAL RULES FROM FDR’S ATLANTIC CHARTER TO GEORGE W. BUSH’S ILLEGAL WAR

by Philippe Sands. New York: Viking Penguin, 2005. 320pp. Hardcover. $25.95. ISBN: 0670034525. Paperback (2006). 352pp. $16.00/£8.99. ISBN: 9780143037828

Reviewed by Donald W. Jackson, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu.

pp.628-632

Within the past two years there has been a plethora of books about President George W. Bush’s national security strategy and the consequent retreat from our previous obligations under international law and institutions; several of them are listed in the references to this review. Many of the steps in the US retreat from international legal obligations relate to the ongoing “War on Terrorism” that threatens to have no demonstrable conclusion. Many writers have been highly critical of the Bush II administration, but others, for example, Joseph A. Klein (2005), not only defend the administration, but vigorously go further to attack the United Nations and its subsidiary and related institutions. This is not to suggest that books such as Klein’s rest on sound research or objective analysis. Instead, his contending viewpoint chiefly is ideological, for he and others of like persuasion seem to be engaged in “no holds barred” political combat.

LAWLESS WORLD, by Philippe Sands, clearly is one of the books critical of U.S. policy, and it contains most of the usual topics, such as Guantanamo, torture and interrogation; the questionable legality of our intervention in Iraq; terrorism and civil liberties. Yet, a key virtue of the book is that it transcends those discussions which, while no doubt of continuing importance, rest on arguments that already are commonplace to many. Sands’ book also includes consideration of the international law respecting global warming, international trade, and the international protection of investments. These are not commonplace topics. Broadly speaking, Sands’ book is essential reading for those whose work in public law usually does not include the post-World War II emergence of customary and treaty-based international law. His chapters on dispute resolution processes, through the Appellate Review Body of the World Trade Organization and the World Bank’s International Centre for the Settlement of Investment Disputes, are especially likely to provide new and useful information for most readers. The remaining chapters are not as likely to provide entirely new information, although they are equally well-presented.

Sands’ fifth chapter is devoted to the Dispute Resolution Understanding (DSU), one of the processes established by the creation of the World Trade Organization (WTO) in 1994. In its first decade (1995-2005), the United States filed 81 petitions, and was the respondent to 90 petitions before the DSU. These 171 cases represented 51 per cent of the 335 cases filed with the [*629] DSU in that decade. The Appellate Review Body created by the DSU is a powerful institution with authority to declare violations of the WTO by member states and to authorize retaliatory measures against WTO violators. Critics of the DSU focus on its low visibility and accountability (Hertz, 2003, especially pp.93 et seq.). Hertz probably has a point of view as ideological as Klein [above], but from the opposite end of the political spectrum. The DSU clearly deserves greater attention by scholars. The gateway to DSU cases can be found online at http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm .

Sands’ sixth chapter reviews the International Centre for Settlement of Investment Disputes (ICSID) of the World Bank that was established under the Convention on the Settlement of Disputes between States and Nationals of Other States and came into force in 1966. The ICSID website [www.worldbank.org/icsid/cases/] reports 106 concluded cases (three of them involving the United States as respondent) and 104 pending cases (none against the United States). Under NAFTA rules investor claims may be filed at the Additional Facility of ICSID. ICSID has seen even less attention by scholars than the DSU of the WTO.

Sands’ chapters on the DSU of the WTO and on ICSID of the World Bank raise the interesting and perplexing question of why the United States is among the strongest supporters of these important and authoritative international institutions while remaining among the strongest opponents of the International Criminal Court. More on that at the end of this review.

Philippe Sands has the useful perspective of having been an actual participant in several of the cases and issues he reviews. For example, he was an advocate in the Pinochet case in London, part of the negotiations that led to the adoption of the Rome Statute for the International Criminal Court, and a legal adviser to the delegation of St. Lucia at the 1990 Geneva World Climate Conference.

In his chapter on the Pinochet case, Sands concludes that the precedent may mean that heads of state may be held accountable, if the political will exists to enforce extant principles of international law, while noting that “foreign courts, located at a great distance from the place of the crime are not well placed to consider evidence and witnesses.” Yet he also notes that this “supranational conception of justice” has “not been plucked out of thin air by judges and lawyers,” but flows from commitments such as the 1984 Convention against Torture, which, in principle, binds the United States and majority of the world’s nation states (p.44).

The new International Criminal Court (ICC) now binds more than 100 nation states, but not the United States, Russia or China. The absence of the United States is ironic, for it was one of the strongest early advocates of such a court. Indeed the commitment of the United States to the international prosecution of war criminals dates from President Wilson’s policy of indicting Kaiser [*630] Wilhelm II for waging war (p.49). But the ICC that was once favored by the United States was an institution that could be controlled by the permanent members of the UN Security Council, for the US plan was that cases would be sent to the ICC solely by the Security Council. When the proposal for the ICC evolved toward an independent prosecutor who could bring cases under his/her own authority (propio motu), the United States balked. While President Clinton signed the Rome Statute for the ICC near his last days in office, the signature was withdrawn by the Bush II administration, which has consistently worked against the ICC, at least as its jurisdiction might apply to the US. It is only fair to note that Clinton’s signature served chiefly to keep the United States within the negotiation over the details of the ICC. Even so, the United States under Clinton was the principal advocate against the prospects of the Rome Statute for the ICC at the 1998 Rome Conference (and one of only seven countries eventually voting against it). Despite several safeguards against politically-motivated prosecution of US military personnel the US has worked consistently against the ICC since 1998.

In his seventh chapter, Sands describes Guantanamo as a “Legal Black Hole,” and he wrote it well before the Supreme Court’s decision in HAMDAN v. RUMSFELD in June 2006, although he does review the June 2004 decision in RASUL et al v. BUSH. Probably more has been written recently on Guantanamo than on any of the topics in this book, but the congressional response to the HAMDAN majority is yet to be determined.

Sands also concludes that the war in Iraq is both illegal and illegitimate, citing (among others) Anne-Marie Slaughter (2004). His conclusion is sustained by the deputy legal counsel of the UK Foreign Office, who resigned in March 2003, following the UK Attorney General’s efforts to justify his country’s use of force when responding to a parliamentary question: “I regret that I cannot agree that it is lawful to use force without a second Security Council resolution” (p.189). When the details of the Foreign Office’s advice to the prime minister were published in April 2005, the advice included the warning that a “‘court of law might well conclude’ that the use of force against Iraq without a second UN resolution would be illegal” (p.197).

In his ninth chapter on “Terrorists and Torturers,” Sands reviews the work of John Yoo, whose views on presidential power are now set out in a recent book (2005). Sands finds Yoo’s work to be “replete with basic errors of law” (p.213) and writes that Yoo’s assessment of international law is “plain wrong” (p.215). Sands concludes with the following:

Over time a great deal more information will emerge. But even at this stage it seems pretty clear that the legal minds which created Bush’s doctrine of preemption in the use of force and established the procedures at the Guantanamo detention camp led directly to an environment in which the monstrous images from Abu Ghraib could be created. Disdain for global rules underpins the whole enterprise. (p. 222) [*631]

At the end of his book, Sands reviews the justifications offered for the policies of the Bush II administration for redrawing the map of “global rules:” 1) that current international law is inadequate to deal with global terrorism, especially the problems involving dealing with non-state actors; 2) that the obligations of the President of the United States to protect US interests ought to prevail over international law, especially given the democratic deficit of most rules of international law; and 3) that military and economic power simply trump international law, and allow the United States to pursue its perceived interests despite actual or prospective conflicts with such laws. Of course, even if the first point has some merit, no lawyer committed to the emergent international legal order can endorse the second or third points Sands concludes that, “The rules of international law will turn out to be more robust than the policies of the Bush administration. Tough guys are not enough in international relations. In the twenty-first century you need rules, and proper lawyers too” (p.239). We shall see whether he may be too optimistic.

Ultimately, the paradox between US participation in the binding provisions of the Dispute Settlement Understanding of the WTO or the World Bank’s ICSID process, on the one hand, and the Bush II administration’s efforts to constrain seriously any international limitations on its foreign policy and war making power, on the other, is perplexing. The only explanation that emerges from surveying the topography of recent US policy is that the Bush II administration – and transnational US corporations – have confidence that their combined economic power ultimately will dominate global trade and finance, while global opposition to the unilateral use of military power by the United States will ultimately diminish. The prospect of an international legal order that might constrain that power – and possibly punish those who violate international criminal law as set out in the Rome Statute of the ICC – are so threatening that they must be opposed on every front.

REFERENCES:
Daalder, Ivo H. and James M. Lindsey. 2003. AMERICA UNBOUND: THE BUSH REVOLUTION IN FOREIGN POLICY. Washington: Brookings Institution Press.

Hertz, Noreena. 2003. THE SILENT TAKEOVER: GLOBAL CAPITALISM AND THE DEATH OF DEMOCRACY. New York: Harper Business.

Irons, Peter. 2005. WAR POWERS: HOW THE IMPERIAL PRESIDENCY HIJACKED THE CONSTITUTION. New York: Metropolitan Books.

Klein, Joseph A. 2005. GLOBAL DECEPTION: THE UN’s STEALTH ASSAULT ON AMERICA’S FREEDOM. Los Angeles: World Ahead Publishing.

Slaughter, Anne-Marie. 2004. AMERICAN SOCIETY FOR INTERNATIONAL LAW NEWSLETTER. March-April, 1. [*632]

Yoo, John. 2005. THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. Chicago: University of Chicago Press.

CASE REFERENCES:
HAMDAN v. RUMSFELD, 548 U.S. ___, 126 S.Ct. 2749 (2006).

RASUL v. BUSH, 542 U.S. 466 (2004).

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© Copyright 2006 by the author, Donald W. Jackson.

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MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM

by William M. Sage and Rogan Kersh (eds). New York: Cambridge University Press, 2006. 406pp. Hardback. $75.00/£48.00. ISBN: 0521849322. Paperback. $29.99/£19.99. ISBN: 0521614112.

Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of the Intellectual Property Law Concentration, Suffolk University Law School, Boston. Email: profrustad [at] aol.com.

pp.622-627

What do we know and still do not know about the medical malpractice liability system? This collection is a new audit that provides the best available data to answer this question, and it highlights policy studies from a Who’s Who of health policy researchers and scholars. Most of the essays offer practical reforms based upon empirical data calculated to improve the functioning of the medical liability system. William Sage is a lawyer as well as a doctor on the faculty at Columbia Law School. His co-editor, Roger Kersh, has a Ph.D from Yale and currently teaches at Syracuse. The contributors include prominent tort and insurance scholars, such as NYU’s Jennifer Arlen and Connecticut’s Tom Baker. Outstanding health policy scholars, such as Randall R. Bovbjerg, Troyen A. Brennan, and David Studdert, also have interesting pieces in this volume.

Any medical liability reform must begin with granite-tough empirical research rather than anecdote or urban legends. The debate over medical liability reform during the past two decades has depended too much on passion rather than empirical studies. This volume represents the best available empirical research by top researchers but it does not by any stretch of the imagination give us the data necessary to resolve the medical liability conflict.

How can we improve the medical liability system if there is no central repository of claims, verdicts, and payouts? No reliable data exist on the number of malpractice claims, let alone the number of settlements, verdicts, and post-verdict adjustments by year. Studies are needed on how professional liability insurance reflects claims and actual payouts. Social scientists are in no position to address these issues without better data. There is a poverty of empirical work on the systematic problems that lead to medical liability in the first place.

The editors deliver on their goal of shedding light rather than heat, but it is extremely difficult to be truly neutral and objective given the self-interested sources of funding and the national debate which is beginning to take on the same divide as the blue and red states. One of the domain assumptions underlying many of the selections is that there is truly a litigation crisis. In Sage’s and Kersh’s introduction, they assert that, “malpractice premiums continue to rise” (p.1). My Suffolk University Law School colleague Marc Rodwin and his collaborators have examined the best available data on malpractice premiums, [*623] the American Medical Association (AMA) surveys of self-employed physicians from 1970 to 2000. The Rodwin study (2006) concluded “that premiums rose until 1986, then declined until 1996, rose thereafter, but were lower in 2000 than in 1986.” The Rodwin study of medical insurance premiums concludes that other items accounted for “a much greater share of total practice expenses in 1970 yet increased rapidly until 1996 and moderately thereafter, while spending on premiums fell during 1986-2000.” The Rodwin, et al. study also controls for high-risk specialties and examines fields such as obstetrics/gynecology, surgery, and anesthesiology across the United States. Mark Pauly’s article addresses the question of “Who Pays When Malpractice Premiums Rise?” But Pauly, like the editors, assumes that premiums have been rising. Hopefully, the editors and some of the contributors will respond to the Rodwin study in the next edition.

Each of the essays in this collection states hypotheses that would be testable if we had better claims and payout data. Texas required greater disclosure by insurers as a predicate for its 1995 tort reforms. Nonetheless, even in Texas reliable data on settlements and claims paid is not available in an accessible format. If average data on payouts are unavailable, it is all but impossible to have an informed debate on tort reform. The supporters and opponents of medical liability reform have no choice but to base competing claims on fragmented information. Academics can only stand by and ask for better data.

Mello’s and Studdert’s chapter describing the medical malpractice system (Chapter One) is a good descriptive account of the litigation process and lays out an excellent research design for assessing the performance of the liability system. The authors describe how insurance arrangements work. Physicians who are targeted by malpractice claims tend to be in high-risk specialties. The hospital, clinic, or other health care provider is vicariously liable for claims if it can be proven that malpractice resulted from the acts of employees. The authors acknowledge how difficult it is even to describe the liability system without a “centralized repository of information on all filed claims” (p.13).

Mello’s and Studdert’s essay is a model of excellence in its description of how insurance works. If better data were available, we would likely uncover risk factors that could result in fewer malpractice claims. The authors provide a compelling argument that compensation falls short of the mark when it comes to optimal liability. The best available data on compensation indicate that approximately 1 in 10 victims of medical malpractice file suit.

The authors cite Patricia Danzon’s path breaking California medical liability study that finds that only 40% of these claims resulted in a payment. “In other words, in this [California] sample, a physician who committed an error leading to injury had only a 4 percent chance of having to compensate the patient” (p.16). The highly publicized Harvard Medical Practice Study in the mid-1980s followed the Danzon [*624] publication (p.16), and these studies have been replicated by empirical investigations in Utah and Colorado. The authors conclude that “the system does not perform well either in compensating eligible patients or in avoiding claims by those who are not eligible” (p.17), and they also report a low correlation between likelihood of being sued for malpractice and deterrence.

Perhaps, a different methodology would unveil a more complicated multi-factorial explanation for the disjuncture between claims and deterrence. Tom Koenig and I studied punitive and non-economic damages in medical malpractice cases going to verdict (1963-1993). We interviewed plaintiffs’ counsel as well as defense counsel who tried these cases about what remedial steps were taken in the wake of awards and post-verdict settlements (Koenig and Rustad 2001). Although deterrence was not the focus of our study, we found it noteworthy that many hospitals, clinics, and even individual physicians implemented safety and protocol improvements after awards. A study of specific deterrence would minimally study what safety steps, disciplinary actions, or other remedial measures were taken after a verdict or settlement. The weak relationship between specific deterrence and claiming may be the result of a methodology that does not accurately measure the dependent variable.

General deterrence is all but impossible to measure although publicity in medical journals is an unobtrusive measure that the signal of litigation is heard by medical providers other than the defendant. Sponge and instrument counts, for example, were instituted in hospitals across the country after high-profile malpractice cases. It is unknown, or perhaps even unknowable, whether a claim sends a signal more generally that changes inadequate protocols or procedures. The authors conclude that corrective justice is the one area of the medical liability system that appears to be working well (p.22), and they do a remarkable job in explaining physicians’ responses to liability.

The entire concept of defensive medicine is slippery, like trying to nail Jell-O to a wall. Defensive medicine, the authors explain, consists of both goods news and bad news. A physician receiving the signal of deterrence may take preventive steps, but it is difficult to determine whether they take inefficient measures. One of the most corrosive effects of medical liability is what the authors term “bristling behaviors” that interfere with the physician/doctor relationship (p.25). They also describe cloaking behavior that results in underreporting of possible malpractice, and they conclude that the plaintiffs’ view of medical liability and patient safety clash with a non-punitive, cooperative-based approach to patient safety. In Sweden, for example, doctors frequently cooperate with an injured claimant in helping them obtain compensation. However, this cooperative-based approach would only work in a system of universal health care, as in the Scandinavian countries.

Co-Editor William Sage’s magisterial essay on malpractice reform contends that policy debates are clouded by [*625] professional rivalries. Malpractice, he writes, has been “a defining issue for the American medical profession in its relationship with lawyers over nearly two centuries” (p.30). President Bush has mentioned the need for liability reform in his last three State of the Union addresses, which confirms Sage’s conclusion that medical liability has indeed drawn closer to national partisan politics. Sage notes that tort reform has taken a myopic view of caps on noneconomic damages without looking at ways to improve the medical liability system. All Americans should share the policy goal of keeping patients safe, improving legal process, and requiring liability insurance to pay where appropriate (p.31).

Sage explains that the only good thing about a “malpractice crisis” is that it spurs research (p.32). Real liability reform would help injured victims obtain redress for adverse claims. One of the difficulties for physicians is that the standard of care continues to rise as a function of technological development (p.34). Brain-damaged babies, who would have died with earlier technologies, now survive for many decades. Sage notes that lifetime care can result in $100 million dollar judgments. True medical malpractice reform will need to refine and even rethink the standard of care where technologies make it possible to tackle hopeless cases. At present, the occasional $100 million judgment may have a chilling effect on innovation. This is a topic that requires further empirical research. His chapter covers big policy questions such as the possibility of a “no-trial” dispute resolution system (p.39). The chapter does a good job of going beyond the tort reform debates to discuss major issues.

The essays in this collection provide a treasure trove of the best available data on medical liability. Maxwell J. Mehlman of Case Western University School of Law’s Law-Medicine Center, (Chapter 8) authored an excellent summary of the research on noneconomic damages. Catherine Struve’s insightful essay describes how a growing number of states are requiring plaintiffs’ lawyers to sign certificate-of-merit provisions, a tort reform measure calculated to preclude the possibility of frivolous claims. Massachusetts has gone even further, requiring a record review by a doctor, lawyer, and judge before a complaint may be filed. These measures bring common sense to the common law. Struve’s well-argued audit of jury performance points to a system that works rather well. She notes that juries do fairly well assessing expert evidence on the standard of care and the causal connection between malpractice and injury. She points out that case management coupled with good jury instructions, jury note taking, and better jury education can also improve jury performance, although she acknowledges that no single measure can fix the malpractice system. (Chapter 10).

Catherine M. Sharkey’s convincing chapter on “Caps and the Construction of Damages in Medical Malpractice Cases” is a policy study backed by data and provides the best available audit on the effectiveness of capping award size (Chapter Nine). Her report card on [*626] effectiveness will be of interest to policymakers as well as academics. One major finding is that there is no statistical effect of caps on the overall judgment. Further research using different methodologies will be necessary before we conclude that caps have no disparate effect. Sharkey, like many of the other contributors, provides legislators as well as policymakers with a careful and meticulous roadmap of what we know about the impact of caps on medical liability. Policymakers need to base further medical liability reforms on data, rather than anecdote.

Tom Baker’s path breaking piece on enterprise insurance explains that the medical liability problem requires insurance reform, not tort reform. His dazzling book, THE MEDICAL MALPRACTICE MYTH (2005), systematically dismantles a number of other myths about the so-called medical malpractice crisis. Baker provides a convincing argument that the medical liability crisis arises from defective medicine rather than too many medical malpractice cases. In this volume (Chapter 14), he cogently explains that the volatility of the underwriting cycle has a far greater effect on insurers’ losses than medical liability claims (p.272). Smoothing out the underwriting cycle would go a long way toward stabilizing premiums. Placing barriers to patient malpractice recovery in the form of tort reforms is not likely to improve the functioning of the liability system and creates distortions in the pricing of premiums.

Baker systematically dismantled many of the myths surrounding the medical liability crisis. The best available empirical data finds no causal connection between large medical liability claims and premium pricing. California’s $250,000 cap on noneconomic damages, for example had an insignificant impact on premiums until that state enacted insurance reforms. He calls for even broader insurance reforms that have the potential of stabilizing premiums in all states. Another key component to Baker’s reform package is to key underwriting decisions into patient safety measures. Prevention should be the watchword of health care providers. He proposes “enterprise insurance” that would cover all liabilities arising out of provided medical services (p.268). Baker concludes by responding to potential objections to his enterprise insurance plan. His clarion call for insurance reform, not tort reform, is based on convincing empirically-based policy analysis.

Each contributor to this book is a national expert, and each provides a useful review of the empirical data. The book is highly recommended for all law libraries, and it would be an ideal reader for a course on health policy or a specialized seminar on medical malpractice. A future volume is needed based upon information from a central repository of data on claims, settlements, and verdicts. Any effort to improve our medical liability system must be predicated upon accurate data, rather than policy conjecture. [*627]

REFERENCES:
Baker, Tom. 2005. THE MEDICAL MALPRACTICE MYTH. Chicago: University of Chicago Press.

Rodwin, Marc A., Hak J. Chang, and Jeffrey Clausen. 2006. “Medical Premiums and Physicians’ Income: Perception of a Crisis Conflict with Empirical Evidence.” 25 HEALTH AFFAIRS 750-758.

Koenig, Thomas H., and Michael L. Rustad. 2001. IN DEFENSE OF TORT LAW. New York: New York University Press.

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© Copyright 2006 by the author, Michael L. Rustad.

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SECESSION: INTERNATIONAL LAW PERSPECTIVES

by Marcelo G. Kohen (ed). Cambridge and New York: Cambridge University Press, 2006. 546pp. Hardback £70.00/$120.00. ISBN: 0521849284. E-book format. $96.00. ISBN: 0511159307.

Reviewed by Lee P. Ruddin (LL.B: Liverpool); (MRes: London) and (PgCert: Sheffield). Email: leetherudster [at] aol.com.

pp.617-621

While not practical to thrash out a treatise of all the essays “autonomously” (a pertinent utterance when reviewing a text deciphering such a theme) in this collection devoted to international law perspectives on SECESSION, edited by Marcelo Kohn, one does strive to appraise the full volume. The study offers a compilation of fourteen essays which unveils the pre-eminence of existing scholarship on secession examining “The Foundations of International Law” and “Their Impact on Secession and International and Domestic Practice.”

Contained within the first of the two pillars of this book (“encompassing a theoretical analysis”: p.x), individual chapters informatively introduce the theses of: secession and self-determination; terrorism and the right of self-determination; the question surrounding external intervention in secessionist causes; State “recognition” and the interesting (often disregarded) issue of secession and succession. The second column of the volume is region-specific (and state-centric: p.x) scholarly dissecting the history and law(s) governing secession in the locales of Africa, Asia and Pacific regions, Europe, Latin America, Canada, and Switzerland.

The corollary to the demise of the U.S.S.R witnessed embryonic secessionist aspirations in tandem with the re-awakening of existing (though quiescent) separatist claims. The construction of a novel autonomous entity by way of separation from a territory (especially those “allergic” to the concept of secession: p.3) does raise grave difficulties challenging the very foundations of international law (pp.1, 3, for definition). The swell in UN membership from 51 in 1945 to 149 in 1984 (the corollary of colonialism) and then, from 151 in 1990 to 191 at present, explains an historical phenomenon, broadly termed secession (p.2) (as Daniel Moynihan predicted). This volume’s clear thesis unearths the role of law and politics in secession.

The State’s obligation from the international law perspective is to ensure democratic participation in public affairs to all its citizens within its internal structures. From the political viewpoint, nevertheless, a negative posture of a central government to addressing the issue [secession] democratically raised by parts of its population can have an important impact in the perception of this situation by third States (p.18).

Georg Nolte (Chapter Three) cites the dictum in the case of NATIONALITY DECREES IN TUNIS AND MOROCCO, whereby “The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relevant question; it [*618] depends on the development of international relations” (p.72). “Politics” cannot be overstated in “Secessionist” discussion (for recently, “international relations have generally placed emphasis on the respect for the territorial integrity [for example] of the Russian Federation” (p.370). For instance, in relation to “recognition,” Dugard and Raic (Chapter Four) state that, “it is essential to appreciate that political considerations do influence the decision and may prompt a state to recognize an entity prematurely or to refuse to grant it recognition” (p.98). This may be for the reason stated by Patrick Dumberry (Chapter Thirteen) that “legal arguments are neither completely decisive of the question nor totally irrelevant” (p.450) with “legal consequences flow[ing] from political facts” (p.437). Moreover, Photini Pazartzis (Chapter Eleven) underscores the timely need of reviewing a text of this nature for the LAW AND POLITICS BOOK REVIEW, writing that “Secession is often viewed more as a problem of politics than one of law” (p.355).

The reader from the outset is made to comprehend the paradox of territorial integrity of the state with the right of self–determination. Such a contradiction is a problem with which the contributors struggle throughout the volume (p.6). “We affirm the equal rights of peoples and their right to self–determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States” (pp.105, 310, 356).

The first chapter, by Christian Tomuschat, is a valid introduction to “Secession and self–determination.” Tomuschat opens with the enlargement ratione personae of the principle of self-determination for all peoples in the international community (though, “primarily designed to foster the decolonization process”: p.23). Tomuschat scholarly employs mini case-studies illustrating a battery of historical insight, for instance, highlighting the ground-breaking resolution adopted by the Organization of African Unity (OAU) in 1964 (p.27) with the later Security Council Resolution of 1244 (displaying recognition of a human community within a sovereign state enjoying a right to self-determination: p.34). Covering a vast repertoire of material, the chapter, is a lucid, educational and jargon-free opening, pulling no punches and intermittently criticizing the UN’s (deficient) role.

The second chapter, according to the title and introduction, offers a most urgent essay on secessionist combatants and chiefly an examination of the “recent judgments concerning the banning of certain organizations as terrorist organizations in the United Kingdom” (p.54). The chapter’s opening is an illustrative baptism of fire whereby Andrew Clapham highlights the anti-Western ambivalence of Arab states (referencing both the Convention of the Organization of the Islamic Conference on Combating International Terrorism and the Arab Convention on the Suppression of Terrorism) in regard to permissible armed attacks aimed at liberation – though these provisions do not apply to acts prejudicing the [*619] territorial integrity of any Arab state (p.47). Conversely, Clapham’s later pages suffer for being concerned too much with the “[in]compatibility” of UK domestic law with that of its international counterpart (p.55). Such a dogmatic view allied with a perpetual focus on compatibility leads to a repertoire of omissions on the effectiveness of UK banning orders leading the author to renounce (though not explicitly) the UK’s non-sheepish alignment with international treaties – regardless of the corollary of their static definition of “terrorism” in a post–9/11 and 7/7 world (p.61).

Secessionist efforts and the provocation of external intervention is the focus of the third chapter (p.65). The historically-based essay succinctly examines the role of the UN and armed intervention by third states. Georg Nolte makes clear from the outset that, the “UN Charter was not written with secession conflicts in mind” (p.66). Accordingly, one must read into this that the powers of the UN apply equally to all situations concerning international peace and security – for there is no “special category as per UN law” (p.66).

In light of the International Court of Justice’s (ICJ) dictum and precedent of Northern Cyprus and Sri Lanka creating a “strong prima facie case that external armed interventions . . . are legal when carried out at the invitation of a government” (p.78), Nolte is correct in highlighting the question of permissibility of interventions by foreign forces at the invitation of the government. He later argues that “a government which is challenged by a force that has obtained the control of at least some part of the territory of the State has lost the necessary representativeness to act in the name of the State” (p.79).

“Recognition” is the theme of the fourth chapter. John Dugard and David Raic present a gripping addition to the volume; highlighting the implication(s) of “recognition” which serves “as an instrument for the validation of claims to statehood on the part of new entities” (p.94). The ethos of their treatise is provided by way of Hersch Lauterpacht, who famously described recognition of an entity as a State while others are denied such acknowledgement as a “grotesque spectacle” (p.97). The authors explicitly note the fact that “States do not regard themselves under a legal duty to recognize entities as States once they comply with the requirements of statehood” (p.98). Tackling such a predicament, Dugard and Raic consider both the “declaratory” and “constitutivist” schools of thought in developing their thesis (p.100). The UN procedure is seen in a favourable light (collective recognition of States through the UN) remedying the (arbitrary) “constitutivist” weakness, and thus rendering Lauterpacht’s “spectacle” (and the doctrine of non–recognition: ex injuria jus non oritur) “no longer a practical possibility” (p.100).

Chapters Five, Eight, Nine and Fourteen are written in French (provided only with the most infinitesimal of English translation) on a repertoire of topics, including the State as a primary fact, the gap of international secession law, African secession with a new right of the [*620] African Union to intervene within a member State to restore peace and stability: p.257), and the history of secession of the Canton of Jura in Switzerland. An additional region-specific essay addresses secession and international law, Latin American style. In Chapter Twelve, Frida Armies Pfirter and Silvina Gonzalez Napolitano take an historical perspective dating from the 16th century “viceroyalty” onwards (p.378). This chapter in particular, presents an unparalleled lawful interpretation of this region’s history.

Antonello Tancredi’s essay on the “due process” of secession practice – despite the bustling activity in the footnotes and intermittent insertion of French sentences (pp.173, 183), is less successful.

Andreas Zimmerman’s installment covers the beguiling problems of secession and succession, analyzing what rules of State succession apply in regard to treaties. At the outset Zimmerman asserts that, traditionally “seceding States have . . . claimed not to be automatically bound by treaties concluded by their respective predecessor States” (p.213). As a result, readers may be forgiven for concluding that, “such successor States did not automatically inherit the contractual obligations” (of the former colonial power) (p.214). However, Zimmerman stipulates that, State practice post-1990 confirms (referencing ICJ judgment in 1997) that the customary treaty law ensures a corollary that treaties attach to the territory – running with the land so to speak – “automatically devolving upon the successor State” (p.214). The historical correlation of statements ensures this chapter is a serious page-turner.

The tenth essay in is supplied by Li–Ann Thio. Her contribution successfully wraps up secession in the Asia Pacific region. Despite separatist initiatives that threaten regional order, Thio elucidates how the international community is increasingly prone to recognize the “realities of secessionist attempts as a remedy where the government of the predecessor State committed . . . human right violations against the seceding unit” (p.300). Thio supports this statement with the example of Bangladesh, where “the UN did not immediately recognize Bangladesh but expressed concern for the gross human rights violations committed” (pp.305, 336). She later catalogues the configuration of territorial units by colonial powers and the construction of multi-ethnic States (in India, Indonesia and Sri Lanka) with the “attendant problems promoting co-existence.” Thio correctly interprets this as “partly a legacy of European colonialism” (p.312). The litany of complaints (from postcolonial States) is not all laid at the door of imperialism, for Thio only attaches part responsibility. She concludes her contribution, unequivocally stating that, “while one might hope that international law on secession is morally progressive, a minimal realism is warranted, given States” preoccupation with internal security and regional stability” (p.350). The most unambiguous example one could attach to Thio’s remarks is the equilibrium relating the US-China-Taiwan Triangle. (During Chinese [*621] President Hu Jintao’s visit to the United States on 20th April 2006, President George W. Bush reaffirmed to the world that he supports the U.S. “one China” policy.). Thio is incredibly conscious of the “potency of nationalism-related . . . issues of State fragmentation in the Asia Pacific . . . led by oppressed ethno-cultural minority groups within post-colonial States,” the corollary of which will “spark fears of political balkanization” (p.353). Thio’s writing (cross–disciplinary) is of the highest order and most comprehensible, utilizing a vast repertoire of sources (though one feels that Benjamin (2003, at 8–10) would have supplied valued added material).

The most superior chapter in the volume is the eleventh. Undergirded by unsurpassed (European) historical analysis this essay should be read first. Photini Pazartzis discusses the imposition of conditions (of both popular will and respect for human rights) providing the scaffold that is “internal self–determination,” the perquisite to external self–determination (pp.369, 372) – a most clear and scholarly exposition.

In conclusion, the contributors coherently instruct their intended audience that it would be erroneous to proclaim that secession violates the principle of State territorial integrity, for this term applies only in international relations. However, as the reader will rapidly become aware, politically–speaking, forcible attempts at secession are increasingly condemned as a threat to international security. Such condemnation in turn, undermines the effectiveness of a secessionist entity claiming statehood. Crucially though, this reviewer interprets “law” as little more than a scarecrow on the international landscape, and its logical function is, appropriately, that of a straw man.

Finally, Kohen’s edited volume is plainly written and more than satisfactorily organized. This tome is of huge significance to an audience of law and politics students and practitioners in their respective fields.

REFERENCE:
Barber, Benjamin. 2003. JIHAD VS. MCWORLD: HOW GLOBALISM AND TRIBALISM ARE RESHAPING THE WORLD. New York: Ballentine.

CASE REFERENCE:
NATIONALITY DECREES IN TUNIS AND MOROCCO, 1923, PCIJ, Series B, No. 4, p.24.

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© Copyright 2006 by the author, Lee P. Ruddin.

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THE EXECUTIVE AND PUBLIC LAW: POWER AND ACCOUNTABILITY IN COMPARATIVE PERSPECTIVE

by Paul Craig and Adam Tomkins (eds). New York and Oxford: Oxford University Press, 2006. 384pp. Hardback. £50.00/$95.00. ISBN: 0199285594.

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: podehnel [at] augustana.edu.

pp.612-616

THE EXECUTIVE AND PUBLIC LAW, edited by Paul Craig and Adam Tomkins, is a collection of eleven essays by legal scholars on executive power as viewed from the perspective of public law. Nine of the essays are nation studies, written by law faculty from the respective countries, including Britain, USA, three British Commonwealth nations (Australia, Canada and New Zealand) and four western European nations (France, Germany, Italy and Spain). One essay focuses on a sub-national executive (Scotland) and the final essay addresses executive authority in the European Union. The book is a rich source of information about particular aspects of executive power, though the points of emphasis are different from most American treatments of the subject. Perhaps the greatest strength of the volume is the way it develops the connections between administrative policy making and the public law of executive power.

Unlike many collections, the individual articles are consistent in structure and analysis, remarkably so considering the international scope of the volume. As Craig and Tomkins explain in their introduction, each author was asked to address “three sets of questions concerning, respectively, the definition, delimitation and accountability of executive power” (p.3). In most of the essays the first two questions are treated together. The authors avoided the temptation to write thematic or specialized essays and instead produced general overviews of these questions for each country. All of the authors consider political factors when analyzing the scope and accountability of executive power, but the discussion of politics serves mainly as a context for the legal analysis which is the main emphasis of the volume. The essays analyze written constitutions, constitutional conventions, statutory law, case law, and, where appropriate, the law of the European Union. That is not to say that the authors are legal determinists. Legal concepts and structures are depicted as contested and pragmatically flexible, and one is left wondering (as usual) just how much the law matters. As the editors note in the introduction, “Both executive functions and institutions have undergone considerable change in recent years and constitutional law has often labored to keep up” (p.5).

The book seems to have been written for a primarily European audience. The chapters vary somewhat in how user-friendly they are for readers not familiar with a given country’s institutions. In his article on Britain, Adam Tomkins is careful enough about defining terms to satisfy the needs of an advanced [*613] undergraduate, but some of the other chapters assume familiarity with institutions and events. Most of the articles also assume some fluency in legal terminology or, in a few cases, the technical language of public administration. The book is not a page turner, and potential readers might want to start with the Introduction and choose from the nation studies according to their interests.

The subtitle of the collection touts a “comparative perspective,” but that is lacking from most of the chapters. Beyond the excellent but short Introduction, the comparative analysis is left in the hands of the readers. Because of their parallel structure, the individual nation studies contain a great deal of potentially comparative material. It is a shame that the individual authors did not have a chance to read each other’s pieces before revising their own. Because the book lacks a conclusion, I found it quite helpful to re-read the Introduction after plowing through the case studies.

I will not attempt to summarize the substantive chapters but will note some of the major themes identified in the Introduction, adding a few comments of my own. The editors begin with the observation that constitutions (written as well as unwritten) generally fail to provide a definition of executive power. This is true despite the fact that separation of powers is an important public law concept in the various systems studied in the book, including the parliamentary systems that make up most of the cases. The delegation of legislative power and the assignment of quasi-judicial tasks to executive officials are widespread phenomena that have been handled in various ways. Although mechanisms of accountability sometimes encroach on executive power, the authors find more evidence of expansion of executive authority than intrusion on it. The intrusions are mainly reactions to the growth and diversification of executive power.

When it comes to defining the limits of executive power, Craig and Tomkins identify four broad approaches (p. 6-7). None of the jurisdictions, they point out, use an enumeration strategy. Constitutional grants of particular powers, where they can be found, are not exhaustive. What the editors call the “subordinate” approach is also unpopular. Here the executive is seen as the agent of the legislature, authorized to carry out legislation but endowed with no independent authority. (Several of the chapters posit this as an idealized integration of the rule of law with democratic legitimacy in a