THE FIRST WOMEN LAWYERS: A COMPARATIVE STUDY OF GENDER, LAW AND THE LEGAL PROFESSIONS

by Mary Jane Mossman. Oxford: Hart Publishing, 2006. 342 pp. Paper £25.00/$45.00. ISBN: 1841135909.

Reviewed by Jennifer Woodward, Department of Political Science, University at Albany. Email: jw735896 [at] albany.edu.

pp.185-187

THE FIRST WOMEN LAWYERS shows the roles that individual women (and to a lesser extent men) played in the establishment of gender equality within the legal professions. With this thoroughly researched project, Mary Jane Mossman does an excellent job of demonstrating how document analysis from various sources, focusing upon a range of individuals and circumstances, can result in similar and often interweaving struggles of legal pioneers. It is a compelling story both scholars and the general population should be able to appreciate. In addition, the book is particularly well suited for those interested in comparative scholarship, gender issues, and of course, law and politics.

Mossman begins by asking “to what extent did women become lawyers without challenging the gender premises of the law and the legal professions?” (p.7). Her answer, demonstrated through the stories of the first women lawyers in the United States, Canada, Britain, New Zealand and Australia, India and Europe, shows that the extent varied. However, certain legal arguments and approaches are found in common among these jurisdictions. For instance, a majority of these women identified themselves as lawyers first, and women second, thus placing many of them in a position where their individual victories ran counter to the larger struggle for women’s equality occurring around them during the late nineteenth and early twentieth centuries.

Mossman also explores how legal professions responded to women entering a male profession, how women characterized their right and interest in admission to the legal professions, and why some women were successful in their challenges while others were not. She shows how women challenged notions of gender in the legal professions and how these challenges were received by both legal institutions and the public.

Mossman’s writing style is almost biographical. While this may serve to obscure her methodology to a certain extent, the benefits to the reader are well worth it. It is one thing to write a scholarly work, and another to write in a manner that makes the experience both informative and enjoyable. Mossman clearly does the latter while holding true to comparative and historical institutionalist methodology. This approach also allows her to show the choices the first women lawyers made in the larger context of their personal lives, the legal profession and historical evolution of women’s rights. Her sources include personal records, academic theses and dissertations, news reports and archives (p.18). [*186]

Public law and legal scholars should find THE FIRST WOMEN LAWYERS fits well among historical institutionalist works. Mossman’s focus on individual women demonstrates how they worked both with and against prevailing views regarding the status of women under the law. The different stories also provide insight into the decision-making of judges hearing these women’s cases. Mossman also adds to the debate regarding judicial activism by demonstrating how gender reform was often not obtained through the judicial process (despite some decisions, particularly in the lower courts) and required legislation for women to gain formal recognition. Repeatedly, institutional constraints these women faced were often only overcome through legislation. Interestingly this legislation frequently allowed women to be admitted to the bar ‘on the same terms as men’ which served to further the male norms institutionalized into the legal professions (p.72). Cases, often based upon the interpretation of words such as “person” and whether the term “male” included females, point to debates over issues such as textualism, legislative intention and use of precedent (both foreign and domestic). Despite various methods of decision-making, case results showed consistent judicial restraint to maintain male dominance of the legal professions.

The book’s focus on the late nineteenth and early twentieth centuries when efforts for women’s suffrage were taking place, also lead to a number of interesting conclusions. For instance, Mossman observes that individual legal arguments could be framed in a manner which ran counter to suffrage efforts. So, women seeking admission to the bar often placed their individual victories above the wider-reaching victories suffragists hoped to gain. Other evolutions, such as the changing views of law and legal education also helped to frame the debate over its first women lawyers. Since lawyers generally had learned law through an apprenticeship, development of the case study method opened doors to women without male relatives or other connections in the profession and shows the influence of extralegal changes on the legal professions. Other influences such as class, economics, religion and war are also taken into account. Moreover, the role of the judiciary can be seen as weak in comparison to legislative and executive bodies, in Mossman’s accounts.

In the introduction Mossman lays a foundation for comparing the women discussed in her book to the modern day struggles of women in the legal profession. Through the stories of the first women lawyers, Mossman also does a particularly compelling job writing about societal hurtles they faced when confronting institutionalized male norms – from exclusion from bar association functions and inadequate accommodations to remarks about their dress and debates over women’s role in the family. In response to these constraints, Mossman observes that women identified themselves as lawyers ungendered, doing the best to fit in. Nevertheless, some women used their gender as an advantage. The chapter on Cornelia Sorabji is a prime example. By framing her argument on the need for a [*187] woman lawyer to handle purdah cases (seclusion from public view, assuming no voice or free will), Sorabji created a niche for herself that was less threatening to those opposed to the idea of women lawyers and gained her acceptance and success. Comparisons between these challenges and those faced by current women in the legal professions should prove fruitful.

Finally, Mossman’s chapter on Louis Frank provides insight into a valuable ally to women struggling for rights and legal recognition. Since the role of male allies in the struggle for equality is often overlooked in gender studies, this is another promising aspect of Mossman’s research that more gender scholars should emulate.

THE FIRST WOMEN LAWYERS focuses on the first women to enter the legal profession and who also sought legal recognition of their status. While the book is thorough in its description of the women and their struggles, a few minor additions could have made the book stronger. For example, the book could easily be strengthened (and appear more attractive to the general public) by adding footnoted translations of the numerous French quotations and perhaps images of some of the original documents mentioned in the text. It would also have benefited from a heavier editorial pen; although never redundant, the writing at times seems repetitive.

Mossman begins by asking what impact the introduction of women lawyers had on the law and the legal professions and explores whether women assimilated the norms of men or developed their own. She effectively demonstrates that the first women lawyers placed their status as lawyers before their gender, although some, such as Cornelia Sorabji, used their gender to confirm the need for women in the profession. In doing so, Mossman provides a window into the personal and professional lives of the first women lawyers, the difficulties they faced, and their efforts to overcome them. Scholars in Public Law, comparative and women studies, and particularly those interested in the evolution of legal systems, gender equality or the role of the judiciary, will profit from reading THE FIRST WOMEN LAWYERS.

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© Copyright 2007 by the author, Jennifer Woodward.

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LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW

by Brian Z. Tamanaha. New York and Cambridge: Cambridge University Press, 2006. 268pp. Cloth. $75.00/£43.00. ISBN: 0521869528. Paper. $29.99/£17.99. ISBN: 0521689678. eBook format. $24.00. ISBN: 9780511248054.

Reviewed by Paul M. Collins, Jr., Department of Political Science, University of Houston. E-Mail: pmcollins [at] uh.edu.

pp.181-184

Although the term “instrumentalism” is rarely employed outside of academia, the notion that the law can be used to achieve an end permeates contemporary discussions of law and courts. During judicial confirmation hearings, academics, journalists, politicians, and members of the public regularly opine on the merits of presidential appointments in instrumental terms, probing, for example, whether the nominee is “conservative [liberal] enough.” Similarly, Supreme Court decisions are frequently covered by the media with a focus on their liberal or conservative nature, suggesting to the public that the justices utilize the language of the law to achieve their preferred public policies. While it is clear that this instrumental view of the law dominates contemporary American legal thinking – both lay and academic – there has been little scholarly attention tracing the evolution of instrumentalism’s path throughout US history.

In LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW, Brian Tamanaha provides an historical overview of the instrumental view of law – the notion that law is utilized by various entities (e.g., judges, interest groups, lawyers) primarily as a means to achieve a range of ends. Virtually limitless in scope, these ends vary from attempting to further one’s position in society, to promoting social change, to etching one’s policy preferences into law (p.6). In addition to making his case that this is the predominant view of the law in America, Tamanaha compels the reader to more seriously consider the implications of legal instrumentalism, particularly as they have the potential to undermine faith in the law’s objectivity. LAW AS A MEANS TO AN END is an excellent treatment of a substantively interesting phenomenon, with real world implications. It is written in a lively, lucid manner, filled with fascinating tidbits of information about its subject matter. For those interested in the state of the rule of law in modern America, it is a must read.

Tamanaha divides his work into three sections. First, he presents a meticulous overview of the origins of legal instrumentalism in both the practice and study of law, from its roots in the nineteenth century to its contemporary acceptance in the present day. Tamanaha appropriately begins with a treatment of non-instrumental views of law that originated in the English common law traditions that so heavily influenced colonial America. During this period, law was viewed with reverence; it was not made, but rather found. In short, this early American view of law, stemming from customary and natural law, was [*182] that law could be, and should be, objectively determined through reasoned deliberation.

According to Tamanaha, the non-instrumental view of law first came under attack during the eighteenth century Enlightenment in which reasoned deliberation – previously thought to induce objectivity – was “emptied of its substance,” leading to the conclusion that, while reason enables individuals to rationally pursue their ends, it cannot tell them which are the proper ends to seek out (p.22). Throughout the nineteenth century, law was increasingly practiced and studied through an instrumental lens, although legal instrumentalism did not permanently establish itself as the dominant view of law until the twentieth century. During this period, scholars across a host of disciplines – economics, history, political science, sociology, as well as members of the legal academy – mounted a strong attack on legal formalism. Most visible here were the legal realists, beginning with the revolutionary works of Jhering, Holmes, and Pound, and later including the likes of Cook, Frank, and Llewellyn, who rejected legal formalism, instead embracing the conception that law could be used to further social change. Tamanaha concludes this section with a brief overview of Supreme Court decision making during the twentieth century, illustrating how the justices often exemplify legal instrumentalism in action by using the language of the law to further their policy goals.

Second, Tamanaha explores the implications of legal instrumentalism’s foothold in contemporary America. Beginning with an overview of instrumentalism in the legal academy, the author provides evidence that instrumentalism dominates legal thought in modern law schools. Following this, Tamanaha reviews instrumentalism as it relates to the law and economics, critical legal studies, and the law and society movements, concluding that each of these movements, while exhibiting stark differences, are nonetheless united in their commitment to legal instrumentalism. After discussing instrumentalism in the practice of law, the author offers a treatment of cause litigation, illustrating how contemporary interest groups have utilized the law to achieve ideological ends. This section of the book concludes with a discussion of instrumentalism in the judiciary, focusing primarily on the contentious appointment process, in addition to covering instrumentalism in the bureaucratic and legislative arenas.

Finally, Tamanaha identifies how contemporary acceptance of legal instrumentalism has resulted in a weakening of the rule of law, in favor of a cynical view of the American legal system. The author proposes that much of this misanthropy is attributable to judges themselves. By rendering decisions with the goal of promoting their own ends, and in accord with their policy preferences, jurists reduce public faith in the judiciary as an objective, deliberative body. Tamanaha offers several prescriptions to remedy this state of affairs, primarily aimed at governmental actors. These include having legislators pass laws in the public interest, compelling public officials to [*183] abide by these laws, and obligating judges to seek out the most correct legal answers, rather than using law as a means to further their preferred policy preferences (p.250). While the author notes that these conditions are minimally necessary for a properly functioning legal system, they receive minimal discussion, and, as a result, it is not completely clear how they can be applied in practice.

Taken as a whole, Tamanaha’s book makes a significant contribution to the scholarly understanding of the rule of law in American jurisprudence. However, it does suffer from a number of weaknesses, two of which deserve mentioning here. Chief among these is that, in covering so much ground, the author is unable to provide in-depth coverage of any one development, a point the author concedes early in the book (p.8). In this regard, Tamanaha sacrifices detail for breadth, something that may draw the ire of readers whose scholarship encompasses one of the many topics discussed throughout the book. For example, while I found the chapter on cause litigation by interest groups illuminating, I was discouraged by its somewhat narrow focus on interest group activity in the later part of the twentieth century. Likewise, I believe the book would have benefited from a more in-depth treatment of instrumentalism’s role in state judicial elections, which is only given four pages of treatment.

In addition, I would like to have seen Tamanaha incorporate a more thorough discussion of social psychological approaches to judging in his treatment of the possibility of judicial objectivity in the final section of the book. While the author does an excellent job discussing the problems associated with instrumentalist judges, focusing on how a lack of objectivity fosters a normatively undesirable uncertainty in the law, this section would benefit from a discussion of motivated reasoning. This is the idea that individuals unconsciously process information in a biased manner by viewing information consistent with their preferences more favorably than authorities that are incongruent with their ideological predispositions (e.g., Baum 1997; Kunda 1990; Rowland and Carp 1996; Wrightsman 2006). This concept is a vital consideration for Tamanaha’s position on the negative consequences of instrumentalism, and his prescriptions to overcome instrumentalism, since it suggests that judges might behave in a manner that they believe is objective, but give more weight to argumentation and evidence they were unconsciously predisposed to support. If motivated reasoning is applicable to judicial decision making, it suggests a more complicated picture than the author paints. That is, if judges are motivated reasoners, asking them to reach decisions that are grounded in the law does not necessarily eliminate the influence of policy preferences on their choices since these preferences can still manifest themselves unconsciously, even when the judges engage in reasoned deliberation.

Despite these shortcomings, Tamanaha’s book provides a superb overview of the emergence of instrumentalism as the primary perspective on law in [*184] contemporary America. The evidence he marshals to support this conclusion is impressive, leaving little doubt as to the validity of his assertions. LAW AS A MEANS TO AN END is an outstanding treatment of an important scholarly question with profound normative implications for American society.

I suspect this book will find its primary audience with legal theorists and legal historians, as well as those scholars with a keen interest in normative issues facing courts. However, I also believe this book will appeal to a more general audience of social scientists interested in the development of instrumentalism in the American legal system. While the absence of hypotheses and empirical testing might put off more quantitatively oriented scholars, I strongly dissuade such scholars from ignoring the book, primarily because, in addition to its excellent treatment of a substantively interesting phenomenon, Tamanaha’s book serves as a model of interdisciplinary research. In recent years, students of the courts have paid increased attention to the lack of communication that too often exists when scholars from divergent disciplines conduct similar research on law and courts, without being aware of what the other is doing (e.g., Cross 1997; Rosenberg 2000). Unlike research conducted in this unfortunate “tradition,” Tamanaha illustrates an astute understanding of the wide array of disciplinary perspectives tackling issues related to the legal system and seamlessly incorporates a discussion of this research – both qualitative and quantitative – in his treatment of instrumentalism. In this sense, it is a rare example of significant legal research that is seriously attentive to both empirical and normative scholarship on American jurisprudence.

REFERENCES:
Baum, Lawrence. 1997. THE PUZZLE OF JUDICIAL BEHAVIOR. Ann Arbor: University of Michigan Press.

Cross, Frank B. 1997. “Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance.” 92 NORTHWESTERN UNIVERSITY LAW REVIEW 251-326.

Kunda, Ziva. 1990. “The Case for Motivated Reasoning.” 108 PSYCHOLOGICAL BULLETIN 480-498.

Rosenberg, Gerald N. 2000. “Across the Great Divide (Between Law and Political Science).” 3 GREEN BAG 267-272.

Rowland, C. K., and Robert A. Carp. 1996. POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS. Lawrence: University Press of Kansas.

Wrightsman, Lawrence S. 2006. THE PSYCHOLOGY OF THE SUPREME COURT. New York: Oxford University Press.

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© Copyright 2007 by the author, Paul M. Collins, Jr.

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THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE

by Bartholomew H. Sparrow. Lawrence, KS: The University Press of Kansas, 2006. 256pp. Cloth. $35.00. ISBN: 9780700614813. Paper. $16.95. ISBN: 9780700614820.

Reviewed by Joseph R. Reisert, Department of Government, Colby College. Email: Jrreiser [at] colby.edu.

pp.176-180

For the first century and a half of its existence, the history of the United States was that of uninterrupted territorial expansion. Although the Constitution has relatively little to say about the acquisition and government of new territories, a pair of common assumptions governed Federal policy towards all the mainland North American territories the United States acquired: that they would eventually be settled primarily by emigrants from existing states and that they would eventually be organized and admitted to the Union as constituent states.

At the close of the nineteenth century, however, victory in the war with Spain brought a new set of insular possessions: the islands or island groups of Cuba, the Philippines, Puerto Rico, and Guam. Unlike the territories of the American west, the islands were densely inhabited by non-white peoples who would not be displaced and dispossessed, as the Indians of North America had been. Moreover, Americans of the time widely agreed that, with such inhabitants, these island territories would not soon and might not ever be suitable for admission to the Union as states.

Turn of the century political opinion divided sharply over both the wisdom of acquiring an overseas empire and the constitutionality of doing so. Nevertheless, the imperialists prevailed, securing the annexation of Puerto Rico, Guam, and the Philippines and a role for the United States in the establishment of an independent state in Cuba. In effect, the political branches decided to treat the new insular possessions as colonies, whose people would enjoy fewer constitutional rights and protections than the inhabitants of the states. That political decision set the stage for a series of lawsuits known collectively as the Insular Cases, in which the Supreme Court adjudicated the constitutional status of the insular possessions.

In THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE, Bartholomew H. Sparrow offers a detailed account of the Supreme Court’s handling of the numerous constitutional questions created by the emergence of an American colonial empire. A political scientist, Sparrow has produced an impressively researched and detailed work of political and legal history that accomplishes three significant tasks: first, it situates the decision to acquire overseas colonies within its contemporary political context and within the larger context of American territorial expansion; second, it describes in detail, analyzes, and offers an account of the public reaction to the thirty-five cases he classes among the Insular Cases; finally, it draws some conclusions about the nature of the empire America acquired at the turn of [*177]the twentieth century, parts of which it continues to administer today. Sparrow’s largest ambition for the work is “to move the Insular Cases back into prominence, to encourage their return to the legal ‘canon’ of Supreme Court cases – that is, to add them to the list of recognized Supreme Court cases essential for and familiar to students of constitutional law and U.S. political history” (p.10).

Sparrow’s account charts the path traversed by the Supreme Court and by the American polity from its initial state of bitter conflict over the constitutional status of the insular territories to the emergence of a consensus that has become so comfortable that the Insular Cases, which loomed so large when they were first decided, have now fallen into that obscurity from which Sparrow seeks to rescue them. Sparrow aims to unsettle complacency about the constitutional status of our remaining colonial possessions, both by reminding us of the powerful arguments for the constitutional roads not taken and by drawing attention to the moral ambivalence of the constitutional resolution we have reached.

To that end, Sparrow devotes a full chapter to the most controversial of the insular cases, DOWNES v. BIDWELL (1901) and three further chapters to the other thirty-four Insular Cases. The specific question at issue in DOWNES was whether the Foraker Act, which imposed a tariff on goods shipped from Puerto Rico to the mainland, violated either the uniformity clause of the Constitution (Article I, § 8) or the no preference clause (Article I, § 9, clause 6), or the no export duty clause (Article I, § 9, clause 5). In effect, however, the Court was being called upon to decide the larger question whether Puerto Rico was, or was not, a part of the United States.

By a vote of 5-4, the Court ruled for the Government and sustained the tariff, but no rationale commanded a majority of the Court. Although there were five separate opinions in DOWNES, there were effectively three distinct outlooks.

Justice Brown held that the United States, properly speaking, consisted only of the States, and that the Constitution applied, of its own force, only in the United States thus understood. The Congress having, with respect to other peoples the same sovereign powers belonging to any nation in the international system, it had plenary authority to rule territories as it saw fit. The Congress could elect to extend US law and constitutional protections to its territories, but without an act thus extending the Constitution’s reach, it would not apply outside the states. Because Puerto Rico, in his view, belonged to but was not a constituent part of the United States, the tariff was valid.

In their dissenting opinions, Chief Justice Fuller and Justice Harlan argued that the United States consisted of both the States and the territories and that the Constitution necessarily applies of its own force in the whole United States, including the territories. Puerto Rico having become a part of the United States by the Treaty of Paris, ratified in [*178] 1899, the tariff manifestly violated the uniformity clause.

Justice White articulated a middle position, first formulated by Abbott Lawrence Lowell, that though the Constitution applied throughout the states and territories, the full set of constitutional protections applied only in the states and in territories that Congress had “incorporated;” in the other, “unincorporated” territories, only a limited and unspecified set of fundamental constitutional protections would apply. The continental territories of the United States had all been incorporated, in White’s view, but the insular possessions had not. Because Puerto Rico remained an unincorporated territory, Congress remained at liberty to impose the tariff.

White’s incorporation doctrine was controversial at first, but in the end, it received the unanimous endorsement of the Court in BALZAC v. PORTO RICO (1922), the last of the Insular Cases Sparrow discusses. (Note that Puerto Rico was, at that time, officially denominated “Porto Rico” by the US government). In BALZAC, Chief Justice Taft ruled that the Sixth Amendment guarantee of a trial by jury did not apply to the unincorporated territory of Puerto Rico. This holding was in line with a series of other “law and order cases” in which the Supreme Court also held that a series of protections enjoyed by Americans on the mainland did not apply to persons (including US citizens) in the unincorporated, insular possessions. Rights not guaranteed in the unincorporated territories included the right to jury trial, the requirement of an indictment by a grand jury in felony cases, the right against self incrimination, the right “to be informed of the nature and cause of the accusation,” and the right to confront witnesses at trial.

Surveying the whole set of Insular Cases, Sparrow draws three conclusions about the Court’s doctrinal development. First, he finds that the Court generally deferred to the clearly expressed will of the Congress, whether that will was expressed in legislation or in the terms of a treaty, but that the Court was not similarly deferential either to the president or to the territorial governments. Second, he notes that the Court applied the incorporation doctrine flexibly, for example treating Alaska as incorporated territory, even though the Congress had not explicitly specified its intention to treat it so. Finally, he concludes that the debate over the incorporation doctrine was a preview of the more familiar debate over incorporation of the guarantees of the bill of rights into the due process clause of the Fourteenth Amendment. In Sparrow’s view, Justice Harlan’s theory that all the protections contained in the Constitution necessarily apply to all territories acquired by the United States finds its parallel in Justice Black’s theory that all the guarantees of the Bill of Rights apply to the States by virtue of the Fourteenth Amendment. Like Black, Harlan failed to command a majority of the Court; instead, the guarantees of the Bill of Rights were applied piecemeal to the states and the territories. [*179]

Sparrow might have said more, however, about another constitutional development which the Insular Cases also seem to presage: the Court’s acquiescence in 1937 and after to the effectively plenary authority of Congress to regulate the domestic economy. Justice Harlan’s allies in DOWNES, after all, were Justices Peckham, Brewer, and Chief Justice Fuller, defenders, in large part, of the legal doctrines displaced by the New Deal. And Justice Holmes, whose dissents laid the intellectual foundations for decisions legitimating the New Deal, also favored giving Congress a free hand in governing the territories; indeed, he first he favored the extension theory of Justice Brown before ultimately endorsing Justice White’s incorporation doctrine.

As a matter of political morality, Sparrow clearly finds the incorporation doctrine troubling, because it in effect treats inhabitants of the unincorporated territories as less than “full members” of the American political community (p.224). But he also favorably contrasts the holding of DOWNES with the rigidity of the Court’s repudiation of Congressional policy for the territories in DRED SCOTT and acknowledges that the flexibility the Court allowed to Congress enabled it to craft regulations appropriate to the distinctive circumstances of each territory (pp.226-227). His ambivalence about the incorporation doctrine is aptly expressed in his observation that “the inhabitants of the U.S. territories enjoy – suffer? – a political status between that of citizens of the states and foreign nationals” (p.228).

With respect to the development of an American territorial empire, Sparrow notes, the Court’s rulings had two, seemingly contradictory, effects. On the one hand, the Court legitimated the acquisition of a territorial empire by allowing Congress to treat the inhabitants of its unincorporated territories as imperfect members of the American political community. On the other hand, however, the Court’s rulings also opened the door to establishment of an “informal” empire, by legitimating the withdrawal of US sovereignty over territory acquired but not yet incorporated or admitted as states.

THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE presents a wealth of information about the political context of the Insular Cases, including significant biographical details of the principal political figures and all the justices to serve on the Supreme Court in the years from DOWNES to BALZAC. Noteworthy in particular, is Sparrow’s coverage of the responses in the press to the Insular Cases, which provides a useful window into the reception those cases received beyond official Washington. Sparrow’s prose is lucid and jargon free, but the legal story he narrates is complex, and, with such a large set of cases to keep in mind, occasionally difficult to follow. The appended chronology of key events and cases provides some help, but more useful still would have been an appendix presenting in some readily accessible format summary accounts of all thirty-five Insular Cases. [*180]

Whether or not it succeeds in returning DOWNES or any of the other Insular Cases to the “canon” of cases widely covered in constitutional law courses, Sparrow’s INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE will be an invaluable reference to anyone seeking to understand the historical and political context of these unjustly neglected cases.

REFERENCES:
BALZAC v. PORTO RICO, 258 U.S. 298 (1922).

DOWNES v. BIDWELL 182, U.S. 244 (1901).

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

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© Copyright 2007 by the author, Joseph R. Reisert.

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LATINOS AND AMERICAN LAW: LANDMARK SUPREME COURT CASES

by Carlos R. Soltero. Austin, TX: University of Texas Press, 2006. 252pp. Paperback. $19.95. ISBN: 0292714114. Hardcover. $45.00. ISBN: 029271310X.

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

pp.172-175

Virtually all of the research on racial discrimination and the law has focused on inequality in general or primarily on African Americans, but there has been minimal scholarship concentrating on civil rights law pertaining to Latinos. Fortunately, Carlos Soltero’s LATINOS AND AMERICAN LAW fills this noteworthy gap in the literature by focusing on fourteen landmark U.S. Supreme Court cases that have directly impacted Latino civil rights. Despite some significant flaws, this work contributes to the fields of equal protection law and Latino politics because it not only addresses a previously ignored subject, but it also demonstrates how contemporaneous public attitudes and shifting political climates shape the development of Latino civil rights law.

LATINOS AND AMERICAN LAW unfolds chronologically and is divided into five distinct periods, each characterized by the reigning chief justice. In the late nineteenth and early twentieth centuries, the Supreme Court sanctioned the American conquest of lands inhabited by Latinos. The Fuller Court ruled that despite the language of the Treaty of Guadalupe Hidalgo (1848), former Mexican nationals needed federal approval in order to claim title to land that was previously part of Mexico (BOTILLER v. DOMINGUEZ, Chapter-1). The Taft Court ruled that the First Amendment freedom of the press and Sixth Amendment right to trial by jury did not apply in the Commonwealth of Puerto Rico (BALZAC v. PORTO RICO, Chapter-2).

During the Warren Court a more favorable political and legal climate led to decisions that significantly expanded civil rights for Latinos. The Warren Court ruled that local judicial administrators could not exclude Latinos from juries (HERNANDEZ v. TEXAS, Chapter-3), and it upheld a provision in the Voting Rights Act of 1965 that required voting registrars to register Puerto Ricans even if they could not speak English (KATZENBACH v. MORGAN, Chapter-4). Although the 1966 landmark case of MIRANDA v. ARIZONA (Chapter-5) applies to all criminal suspects regardless of race, Soltero explains that because Latinos are among the least likely of all racial and ethnic groups to understand their rights, this case is especially significant for them.

The Burger Court’s record on Latino civil rights was more mixed than the Warren Court’s. On the one hand, the Burger Court ruled that the Equal Protection Clause does not require equal funding among school districts, even when the poor districts are heavily Latino (SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ, [*173] Chapter-6) and that the Civil Rights Act of 1964 does not prevent private companies from refusing to hire legal aliens, virtually all of whom were Latino (ESPINOZA v. FARAH MANUFACTURING COMPANY, Chapter-7). Conversely, the Burger Court’s moderate ideology did result in preventing border patrol agents from pulling over vehicles merely because a driver or passenger appears to be Latino (UNITED STATES v. BRIGONI-PONCE, Chapter-8), and the Burger Court overturned a Texas law denying education to children of illegal aliens (PLYLER v. DOE, Chapter-9).

Soltero then establishes that the extremely conservative legal and political environment surrounding the Rehnquist Court has led to decisions that have undermined Latino civil rights. It bears mentioning that the Rehnquist Court did improve the ability of political refugees to seek political asylum in the United States (IMMIGRATION AND NATURALIZATION SERVICE v. CARDOZA-FONSECA, Chapter-10). However, other Rehnquist Court rulings generally went against Latinos’ civil rights claims. In the area of criminal law the Rehnquist Court ruled that the Fourth Amendment does not apply to a Mexican national’s property in Mexico, even though American agents conducted the search (UNITED STATES v. VERDUGO-URQUIDEZ, Chapter-11), and it upheld the practice of prosecutors using peremptory challenges to dismiss bilingual veniremen when the defendant speaks exclusively Spanish (HERNANDEZ v. NEW YORK, Chapter-12). Additionally, the Rehnquist Court sided with the Florida legislature’s refusal to create majority-Latino state legislative districts (JOHNSON v. DEGRANDY, Chapter-13), and it would not allow a private individual to challenge an Alabama law requiring that driver’s license examinations be given only in English. (ALEXANDER v. SANDOVAL, Chpater-14).

On the whole, I recommend this book for public law and minority politics scholars. It undoubtedly fills significant gaps in the public law literature dealing with race. Additionally, Soltero is generally successful in supporting his claim that the Supreme Court’s Latino civil rights decisions are a product of the political and cultural environment in which the Court operates. By devoting considerable effort to explaining the social context of the decisions, Soltero persuades the reader that these cases are not decided in a legal vacuum. This strength is most notable in criminal law, especially HERNANDEZ v. TEXAS and MIRANDA v. ARIZONA. Soltero carefully documents how Latinos have suffered from mistreatment and discrimination at the hands of law enforcement. Furthermore, Soltero establishes that these Supreme Court cases are still relevant to Latinos today, especially in light of the “War on Drugs” and September 11th. Although some political scientists may quibble with Soltero’s chronological approach, it does allow him to show the importance of the political climate during each period. Soltero should also be applauded for covering the more obscure, albeit still important, cases that casebooks usually ignore, especially the two pre-Warren Court cases of BOTILLER v. DOMINGUEZ [*174] and BALZAC v. PORTO RICO. Finally, it is worth noting that Soltero is not afraid to insert normative judgments where appropriate. For example, , he courageously and accurately described Chief Justice Taft’s reasoning as “hypocritical” (p.28).

Despite its strengths, this book also suffers from significant drawbacks. First, since Soltero is so concerned with political context, it is surprising that he does not avail himself of the rich literature emphasizing extra-legal influences on judicial decision making. Inspired by Legal Realism and Sociological Jurisprudence, political scientists since the 1940s have studied Supreme Court decisions as a product of politics as much as a product of legal doctrine (e.g., Pritchett 1963; Segal and Spaeth 1993); yet, Soltero ignores this relevant literature. Along the same lines, Soltero underemphasizes significant extra-legal influences on judicial decision making. He does not focus enough on the complexities of interest group litigation, nor does he treat in enough clear detail the influence (both positive and negative) of the United States Department of Justice, particularly the Solicitor General.

The most vexing flaw with this work is that casual editing detracts from the force of its argument. Chapters are inconsistent in their level of scholarship. Some chapters are well-cited; Chapter 2 has over three citations per page and Chapter 12 averages more than four. However, other chapters are poorly cited; Chapters 8-11 each average less than one citation per page, with Chapters 8 and 9 averaging one citation for almost every three pages. There are glaring citation omissions. For example, Soltero writes, “discrimination against Asians, Southern and Eastern Europeans, Germans, and Irish . . . has been written about elsewhere” (p. 107). However, he provides no citation referencing these sources. Again, Soltero alludes to scholarly research on mass deportations of Mexicans in the 1930s, but he offers no record of these sources (p.108). There are also sloppy editorial errors. For example, Soltero writes, “The Burger Court that considered PLYLER was virtually identical to the Burger Court that considered RODRIGUEZ, the sole change being that President Ford had appointed Justice John Paul Stevens . . . when Justice William Douglas resigned in 1975” (p.119). Obviously, this statement is incorrect, since Justice O’Connor had also replaced Justice Stewart in the interim between the two cases. In fact, Soltero even discusses O’Connor’s role in the PLYLER case as well as her ascension to the Court (pp.127-128), yet neither he nor the editor corrected the glaring error on page 119.

My reservations notwithstanding, I recommend this book for scholars, graduate students, and advanced undergraduates interested in equal protection law or minority politics. The book’s important contributions to the fields of public law and minority group politics outweigh its noticeable flaws.

REFERENCES:
Pritchett, C. Herman. [1948] 1963. THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS AND [*175] VALUES, 1937-1947. New York: Octagon Books.

Segal, Jeffery A., and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge, UK: Cambridge University Press.

CASE REFERENCES:
ALEXANDER v. SANDOVAL, 532 U.S. 275 (2001)

BALZAC v. PORTO RICO, 258 U.S. 298 (1922)

BOTILLER v. DOMINGUEZ, 130 U.S. 238 (1889)

ESPINOZA v. FARAH MANUFACTURING COMPANY, 414 U.S. 80 (1973)

HERNANDEZ v. NEW YORK, 500 U.S. 352 (1991)

HERNANDEZ v. TEXAS, 47 U.S. 475 (1954)

IMMIGRATION AND NATURALIZATION SERVICE v. CARDOZA-FONSECA, 480 U.S. 421 (1987)

JOHNSON v. DEGRANDY, 512 U.S. 997 (1994)

KATZENBACH v. MORGAN, 384 U.S. 641 (1966)

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

PLYLER v. DOE, 457 U.S. 202 (1982)

SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973)

UNITED STATES v. BRIGONI-PONCE, 422 U.S. 873 (1975)

UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990)

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© Copyright 2007 by the author, Steven Tauber.

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THE MYTH OF JUDICIAL ACTIVISM: MAKING SENSE OF SUPREME COURT DECISIONS

by Kermit Roosevelt III. New Haven and London: Yale University Press, 2006. 272pp. Cloth $30.00/£16.00. ISBN: 0300114680.

Reviewed by Matthew J. Franck, Department of Political Science, Radford University. E-mail: mfranck [at] radford.edu.

pp.166-171

It seems the phrase “judicial activism” was first used by Arthur M. Schlesinger, Jr., in an article about the Supreme Court in the January 1947 issue of FORTUNE magazine (Kmiec 2004). Sixty years later, Kermit Roosevelt, who teaches law at the University of Pennsylvania, would like us all to stop using the expression. But his case against the expression’s use, and his proposed substitute categories of analysis, are both weak.

Not that I don’t understand, and sometimes share, Roosevelt’s exasperation with the promiscuous and often careless use of the phrase. It is sometimes true, as he writes, that “in practice ‘activist’ turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with” (p.3). But this has not always been true in the past, and it is not always true now. First, while “activist” has lately become a word mostly used in condemnation of judicial behavior, it was not always thus: Schlesinger, for instance, embraced activism as a positive good for some purposes. Nor is the phrase’s use, when pejorative, necessarily conclusory or a mere epithet. It may instead be the conclusion of an argument of considerable sophistication and depth regarding the proper uses of judicial power.

Of these two quite basic possibilities Roosevelt seems, between the covers of this book at least, to be completely oblivious (he even flatly denies the first of them on p.11). He tells us he wrote the book in hopes that it would be “illuminating and useful to non-lawyers,” which may excuse him from loading it down with all the annotations and detail that scholars would expect in a work aimed at them. But any ordinary citizen who picks up this book will be deeply misled about the state of debate in the scholarly community and in the judiciary itself. And some readers will be lulled into complacency about the habits and practices of the contemporary Supreme Court. Whether Roosevelt means to sing such a lullaby is more than we can know from this book. But that is one foreseeable effect on the unwary or beginning reader who comes to it.

“Judicial activism” is a contested term of art, to be sure. Roosevelt would like to jettison it because no “objective” (p.2) definition of it exists. I do not know exactly what he means by “objective.” Does he mean something like “operationalizable in empirical terms”? Or something softer, like “uncontroversial”? Either way, his claim would be more persuasive if he reviewed a fair sampling of the efforts to give it a definition. Instead, he makes a whipping boy of the lawyer-journalist Mark Levin, whose MEN IN BLACK (2005) he cites repeatedly, “not because it is the best statement” of the view he [*167] wishes to criticize but “because it seems to be the most widely read” (p.12). Mr. Levin can take care of himself, and it is no criticism of his popular book to say that it is not the last word on the subject. But Roosevelt would have done his readers better service if he had come to grips with some representatives of what he did take to be the “best statement” on the subject of judicial activism. If Levin’s book is as weak as Roosevelt says, then he has set himself too easy a task. If Levin’s book is not as weak as Roosevelt says – and I do not think it is – then he has dumbed down its argument in order to achieve a victory. Either way he is beating the stuffing out of a straw man, and whether the stuffing was provided by Levin or Roosevelt makes little difference.

As an instance of the straw man argument, observe that according to Roosevelt “[t]he idealized opposite of judicial activism” is something called “‘direct enforcement’ of the Constitution” (p.18). Now Roosevelt does not explicitly claim that the concept of “direct enforcement” is Levin’s – and it is a good thing, since I do not believe Levin ever uses that expression – but neither does he supply the name of anyone who does attach himself to it. The notion “turns out to be a fantasy,” says Roosevelt (p.19). Yes, but whose? It appears to be his own. In fact, ever since Schlesinger (apparently) coined “judicial activism,” the commonest term used for its opposite has been “judicial self-restraint,” another phrase used in that 1947 article. If “judicial self-restraint” appears anywhere in Roosevelt’s book, I missed it. And these matters of terminology are not unimportant. “Direct enforcement,” whatever that might be, sounds awfully simplistic. “Judicial self-restraint” does not.

Now with what would Roosevelt replace “judicial activism” as a useful substitute? His preferred distinction is between “legitimate” and “illegitimate” rulings of the Court. How can we tell the difference? “What I mean by a legitimate decision is essentially an appropriate exercise of judicial authority,” and “[i]llegitimate decisions, by contrast, have something improper about them” (p.37). How is this an improvement in sophistication over Schlesinger’s dichotomy between self-restraint and activism?

Roosevelt connects his “legitimacy” criterion to the alleged insight that “doctrine is what decides cases,” not the “plain meaning” of the Constitution (p.42; his emphasis). This would amount to saying nothing more than the commonplace that the Constitution requires interpretation – that is to say, thinking about – but there is something Roosevelt adds here of some interest. He argues that doctrines, by design or by gradual development, become self-contained, self-driving logical constructs that dictate the outcomes of cases without much looking backward to the Constitution they purport to be about. This is not a failing to be lamented, in Roosevelt’s view. It is just the way things are, of necessity, and all in all probably a good thing, since the Court’s doctrines are all about “the Court’s judgment that another governmental actor can or cannot be relied upon to [*168] identify and observe constitutional limits on its behavior” (p.43).

And so Roosevelt’s framework is something like this: Good doctrines, and the legitimate rulings that flow from them, will make appropriate judgments about when other institutions can be trusted to “observe constitutional limits” on themselves. The result will be appropriate degrees of deference and non-deference by the Court to those institutions, depending on the circumstances. Bad doctrines, by contrast, and the illegitimate rulings they produce, make inappropriate judgments about these matters, resulting in the Court wrongly deferring or wrongly failing to defer to the other institutions. After a fairly cavalier argument against originalism (as the wrong method for crafting doctrine) that wraps up Part I, of the book, Roosevelt turns in subsequent parts to the application of this framework to “legitimate” rulings that fall into the categories of “Easy Cases” (Part II) or “Hard Cases” (Part III), and then turns to cases that exemplify “Illegitimacy” (Part IV).

But before taking up Roosevelt’s examples, another word about his view of the Court’s proper business. Sound doctrine, Roosevelt says, is built on five considerations or “factors” (sketched in Chapter 2). First is “institutional competence,” or the Court’s best judgment of whether, say, legislative deliberation or adjudicative processes are most competent to address a policy question. Second is “the lessons of history,” in which the Court weighs whether a governmental actor is pursuing a legitimate purpose by considering whether such a purpose has animated the policy in question in the past. Third is “defects in democracy,” in which the Court asks itself whether just results are likely to ensue from majoritarian decision-making. Fourth is “the costs of error,” in which some assessment of the potential harms done by deference or non-deference is undertaken by the Court. And fifth is “rules vs. standards,” in which the Court decides whether compliance with its own doctrines is better achieved by hard-edged rules (e.g., MIRANDA warnings) or something fuzzier that gives other actors more latitude.

Readers may notice something about these ingredients of good “doctrine.” However useful they might be to a Court granted a roving commission to undo injustices, make ours a happier society, and generally to split babies in Solomonic fashion, they are none of them constitutional considerations in any way, shape, or form. They do not even represent categories of legal reasoning, properly speaking. These five “factors” in the construction of doctrine are in truth political considerations, involving the educated guesses of jurists about how they may achieve some vision of justice, however tenuously connected to the Constitution, without endangering the Court’s continued ability as an institution to pursue that vision. A constitutional understanding of when to defer and when not to defer to other actors would require the Court to consider what it means to wield “the judicial power” in the adjudication of “cases” and “controversies” that “arise under” the various forms of law that may come within a court’s purview. The [*169] Constitution speaks to us itself on what courts are “competent” to do and not to do, if we can learn how to read it. According to Roosevelt, one may infer, all such signposts back to the Constitution commit the fallacy of believing that the document has a “plain meaning” that everyone knows it really does not have, as to the interesting questions at least. There’s that straw man again. And having given him a hearty knock, Roosevelt presents us with a judiciary whose power to decide any and all constitutional questions is complete and unfettered, covered by the fig leaf of occasional “deference,” but ungrounded in any understanding of the Constitution whose terms the Court purports to enforce. In Roosevelt’s account, judicial review floats in mid-air, like Socrates in his basket in Aristophanes’ CLOUDS. What holds it up is nothing other than our liking its results more often than not.

Thus when we come to discussion of cases that take up the final two-thirds of the book, we are prepared to believe just about anything, and nothing at all. Roosevelt’s accounts of constitutional meaning are appropriately casual, since all he is looking for is a bare first premise for a doctrine. If they were not so casual, he might see that his “easy cases” are not all that easy. BROWN v. BOARD OF EDUCATION and LOVING v. VIRGINIA, for instance, are disposed of as “easily correct” (p.71) in a mere seven pages with the ipse dixit that they were about a “racial caste system” (p.68) that the equal protection clause condemns, just as it does all government policies that “treat some people worse than others without sufficient justification” (p.23; later this becomes “treating people differently based on hostility toward them,” p.94, as though these were the same thing). Roosevelt is surely right that nearly everyone applauds BROWN and LOVING today, but those who agree might still be embarrassed at the insouciance of his defense of them.

THE MYTH OF JUDICIAL ACTIVISM is liberally sprinkled with such “because I said so” assertions about the principles of the Constitution, brought forward simply to start the fun part of building a doctrine. So we learn in a discussion of the recent Guantanamo cases that “[t]he meaning of the Constitution is that the Executive may detain enemy combatants and not innocents’ (p.79). How does he know this? Later, in a discussion of the abortion rulings, we are told the due process clause means “the government cannot restrict your liberty in even the most trivial way unless it does so by means of a valid law” (p.120). This is perfectly circular, a fact confirmed shortly afterward by the assertion that “governmental action is valid only if it serves a public purpose, or promotes the public good” (p.123). And not just circular but – again – asserted without the slightest effort to persuade the reader that it is a plausible, historically grounded reading of the text of the Constitution. A final example: the establishment clause, Roosevelt tells us, “protects the individual from compulsion in religious matters” (p.144). As a reading of the establishment clause, that is one of several competitors, and perhaps not the best one. [*170]

The point is that Roosevelt may be right about this or that constitutional question, but he never actually argues that he is right – about anything with respect to the Constitution itself. The depths of pointlessness are reached when he comes to “Reviled Decisions” (Chapter 12), and cannot supply any persuasive constitutional reasons why DRED SCOTT, PLESSY, LOCHNER, and KOREMATSU were wrongly decided. Or perhaps not – KOREMATSU, he says, was “probably legitimate” (p.221) if perhaps regrettable.

And this brings me to a final point. From the beginning of the book, Roosevelt maintains that we should lighten up, take a forgiving attitude toward the Court, and realize that its doctrines will sometimes “underenforce” the Constitution and sometimes “overenforce” it. It is possible, in other words, for a decision to be wrong but “legitimate” in Roosevelt’s terms. It could wrongly permit unconstitutional behavior by other institutions, or wrongly condemn constitutional behavior by them, but still fall within his ambit of being largely immune from strident criticism by mere citizens.

To this argument one might respond with an observation and a question. The observation is that wrongly permitting unconstitutional actions to stand (something the Court can do rightly as well) is not as bad as wrongly condemning constitutional actions (something the Court can never do rightly). That is why “activist” and “self-restrained” remain more useful categories than Roosevelt’s “legitimate” and “illegitimate.”

The question is this: Whether the Constitution is underenforced, overenforced, or enforced “just right,” why does Roosevelt seem to believe that the Constitution is to be “enforced” first, last, and most authoritatively by the judiciary? The fact that this question does not even appear to interest him is the most signal failing of THE MYTH OF JUDICIAL ACTIVISM.

REFERENCES:
Kmiec, Keenan D. 2004. “The Origin and Current Meanings of ‘Judicial Activism.’” 92 CALIFORNIA LAW REVIEW 1441-77.

Levin, Mark R. 2005. MEN IN BLACK: HOW THE SUPREME COURT IS DESTROYING AMERICA. Washington, D.C.: Regnery, 2005.

Schlesinger, Jr., Arthur M. 1947. “The Supreme Court: 1947.” 35 FORTUNE (January 1947): 73-79. 201, 202, 204, 206, 208, 211, 212.

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

DRED SCOTT v. SANDFORD, 60 U.S. 3093 (1857).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

LOVING v. VIRGINIA, 388 U.S. 1 (1967). [*171]

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

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

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© Copyright 2007 by the author, Matthew J. Franck.

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A JURISPRUDENCE OF POWER: VICTORIAN EMPIRE AND THE RULE OF LAW

by R.W. Kostal. Oxford, Oxford University Press, 2006. 544pp. Hardback. £79.95/$140.00. ISBN: 0198260768.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email:l.westnewman [at] auckland.ac.nz.

pp.162-165

This book elaborates and explores an historical episode where issues of legality and their testing through the judicial process were central to what transpired; in short where law was a significant element in the politics of empire. It does so in the manner pioneered by E.P. Thompson (in WHIGS AND HUNTERS and see Albion’s FATAL TREE) and subsequently employed to excellent effect by a number of legal historians, including the editor of this Oxford series, A. W. Brian Simpson. The incident known as the Jamaican suppression that here illustrates the centrality of law as a constraint on political power in the ‘modern English world-view’ (p.463) is well described in the author’s own words.

On 11 October 1865, a crowd of black men and women attacked and burned the courthouse at the southeastern vestry town of Morant Bay. The chief magistrate and seventeen other persons, most of them white men, were beset and killed as they fled. When apprised of these events, the Governor of Jamaica, Edward John Eyre, proclaimed martial law in the afflicted district, and dispatched regular soldiers and militia to put down the insurrection. This the soldiers did with vigour, killing and torturing hundreds of black Jamaicans – that is to say, British subjects – in the process (p.1).

The passage also serves to demonstrate an economical and vigorous writing style which, especially considering the length of this book, is an excellent thing.

Legal and political histories are usually, if one takes the time to trace them in intricate detail, found to be closely entangled. But, as the author in this case points out, the existing literature on the episode was extensive enough to be discussed in the book’s appendix on the historiography of the incident but had nowhere directly addressed this the particular conjunction. So, in A JURISPRUDENCE OF POWER, R.W. Kostal takes a moment in British colonial history and explores in depth and detail the way a debate about the uses and purpose of martial law and the political implications of events in Jamaica was played out through legal processes and learned and popular commentaries that formed a vehicle for debating broader issues of principle in British social and political life. Thus, he explores the concept of martial law in its legal, political, and ethical dimensions in the late 1860s. In so doing he also reminds us that, although the British Empire may no longer exist, the contemporary global political economy still offers examples of the same questions of freedom, coercion, legality, and control, not least in connection with the ‘war on terror.’ [*163]

This violent incident where, although resistance was crushed within a week, the ‘black population . . . was subjected to a protracted and calculated reign of terror’ (p. 13), was in fact simply one violence among many in the history of the British Empire; there were more than seventy during Queen Victoria’s reign alone (p. 462). The extended response to it, however, involved journalists, lawyers, judges, intellectuals (including Thomas Carlyle and John Stuart Mill), and politicians, and extended over several years. Their concern was activated not so much by the predicament of those tortured and executed in Jamaica as through the disquieting apprehension that the principles involved were also deeply relevant at home. The meaning and legal/constitutional status of events at Morant Bay highlighted a series of questions about the dangers of force used as a means of governance when it is operating, to use Kostal’s evocative phrase, ‘unharnessed from law’ (p.480). They set up a debate about the meaning and possibilities of a law of martial law, particularly in questioning whether under a declared state of martial law there was still a place for a constitutionally-based rule of law. Was martial law bound by the common law, or was it simply a ‘law of its own’ based entirely in the expedience of the moment? In that case, if martial law ‘curtailed the common law’ then it also ‘immunized officials from legal culpability’ (p.479). And, if this was indeed so, then could such ‘law’ also be applied to citizens of Britain itself when a perceived need arose?

Concerned by what they saw as a dangerous disconnection the Jamaica Committee, set up in redemptory mode by concerned citizens, and representing a ‘grand coalition of Christian activists and secular liberals’ including John Stuart Mill, took the affair to the courts where it was inevitably rendered into the pleadings, oral arguments, judicial declarations, and both scholarly and popular commentaries that constitute the discourse of law. This meant that lawyers and judges were taking on a task that politicians had not achieved – the reconciliation of empire’s conflicting desires for legality and absolute domination.

The means by which this matter came into judicial determination was curious. Private prosecutions for murder are not commonly used to determine constitutional law but in this case, having failed to persuade the Government to prosecute those involved in the killings as ‘criminal wrongdoers,’ this was the strategy pursued by the Jamaica Committee. The focus became the death of George Gordon, a landowner-politician of mixed ancestry and pale complexion. Although there was no suggestion that Gordon had taken part in acts of violence, he had been Eyre’s strongest political opponent. Charged with high treason and sedition, he was publicly executed in symbolic fashion by hanging from the central arch of the ruined courthouse. The three unsuccessful prosecutions brought against Governor Eyre for the murder of George Gordon involved some of England’s most senior lawyers, judges and legal scholars whose writings and [*164] pronouncements are described in detail over several chapters.

Nor were prominent conservative lawyers and thinkers silent throughout this process. Seeing an issue of policy and principle vigorously pursued through interpretations of legality, they responded through journalistic commentary and legal scholarship. The prime figure in the latter was William Francis Finlason, a barrister who was also a legal reporter for The Times. Kostal describes his TREATISE ON MARTIAL LAW AS ALLOWED BY THE LAW OF ENGLAND IN TIME OF REBELLION as ‘often convoluted, sloppily edited, and tediously repetitive’ (p.228). It was also the most comprehensive analysis of martial law ever written in English and blatantly political in purpose. Emphasizing the extreme danger of insurrection in any parts of the empire Finlason located martial law in the exigencies of law – not only the controlling of outbreaks of rebellion but also their prevention. He argued that in a rebellion there can be no neutrality. ‘Every person in the field not acting in direct aid of the forces of the Crown was ‘rightly and necessarily regarded as the enemy’ (p.235). Martial law was not law in the ordinary sense at all; it was expediency for, in Finlason’s own words, it ‘operates chiefly by the terror of summary military executions, and by the rigid restraints of military discipline’ (p.235). Summary executions without trial were justified by a utilitarian calculus.

The majority of public opinion supported the conservative point of view, generally in agreement with Finlason, the political realist, that ‘in much of the empire the white master class was hated as much as it was outnumbered. Ultimately, British rule over masses of black and uncivilized peoples depended less on consent than on coercion and, even more crucially, on the omnipresent threat of coercion’ (p.256). Although it required an acceptance of the ‘tenets of terror,’ if these were necessary for the maintenance of empire then that price must be paid – by imperial subjects in blood and suffering and by English liberals through the diminution and compromise of freedom under the rule of law. An interesting sidelight on this is Karl Marx’s view of the debate and his unsympathetic characterization of the liberal distress and concerns over the Jamaica suppression, which, in a letter to Engels, he described as evidence of their ‘utter turpitude’ (p.479).

Through this thoughtful tracing of the effects of just one of the hundreds of violent episodes that form the history of the British Empire on the political and legal fabric of imperial power, much wider questions about the limits of permissible force in pursuit and maintenance of national political interests in countries other than one’s own come into clear focus. For scholars of law and politics this can only be a good thing. The book makes excellent and thought-provoking reading, not least as a prompt to recognition that the moral perils of empire in the nineteenth century look remarkably like the moral perils of global hegemony today.

The level of detail, presented in around 500 pages, means however that for [*165] teaching purposes some distillation of its key ideas and evidence would almost certainly be needed. Kostal notes that surprisingly for a 500-page legal treatise, Finlason’s book was widely read and discussed at the time. Unfortunately, it seems likely that potential readers in general and students in particular have more claims on their time and interest now than were available at that time. Nor do the prospects for a wider recognition of law’s centrality in Victorian history look promising; the book’s appendix on the Jamaica Controversy as historiography ends with the author’s regret that the newest edition of the OXFORD HISTORY OF THE BRITISH EMPIRE ‘almost entirely overlooks legal ideas, events, and variables’ (p.501). Since Kostal’s arguments for their recognition are insightful, persuasive, and of real scholarly merit, one hopes the setback is only temporary.

REFERENCES:
Hay, Douglas (ed). 1977. ALBION’S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND. Harmondsworth: Penguin.

Thompson, Edward P. 1977. WHIGS AND HUNTERS. Harmondsworth: Penguin.

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© Copyright 2007 by the author, Catherine Lane West-Newman.

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CORPORATE GOVERNANCE LESSONS FROM TRANSITION ECONOMY REFORMS

by Merritt B. Fox and Michael A. Heller (eds). Princeton: Princeton University Press, 2006, 408 pp. Hardback. $45.00/£29.95. ISBN: 0691125619.

Reviewed by Basak Kus, Department of Sociology, University of California at Berkeley. Email: basak [at] berkeley.edu.

pp.153-161

Over the past 15 years corporate governance has become a front-and-center topic in academic research. Of course, bodies of literature in law and social sciences have always considered political and social factors as fundamental to firms and economic growth (Fligstein and Choo, 2005). The structural changes that took place in the world’s political economy during the 1980s and 1990s, however, made it even more imperative to examine carefully how social and legal arrangements affect firms, markets and economic growth across nations. Technological progress and opening up of financial markets have complicated the allocation and monitoring of capital within and across nations. Privatization has brought forth questions of the role, rights and duties of owners, managers and shareholders in sectors that were previously in the hands of the state (Claessens 2006, at 95). As Claessens explains, the wave of financial crises in 1998 in the Russian Federation, Asia and Brazil demonstrated how deficiencies in corporate governance may endanger the stability of the global economic system as a whole. And just a few years later, confidence in the corporate sector was shattered by corporate governance scandals in the US and Europe, which triggered some of the largest insolvencies in history. In this context, Claessens articulates, not only has the phrase corporate governance become a household term, but academics, the corporate world and policymakers everywhere have begun to realize fully the potential macro-economic consequences of weak corporate governance systems (p.91). This realization has given birth to increasingly interdisciplinary efforts by academics to understand how social and legal arrangements affect firms, markets and economic growth.

Edited by two prominent legal scholars, Merritt B. Fox and Michael A. Heller, CORPORATE GOVERNANCE LESSONS FROM TRANSITION ECONOMY REFORMS is an outstanding example of this kind of endeavor. Drawing on in-depth studies of market transition reforms in Russia and Central/Eastern Europe, authors address questions that remain central to the comparative/historical study of corporate governance, including what constitutes good corporate governance, the role and limits of law’s relationship to economic change, the effect of ownership structures on corporate performance, and the relationship between securities regulation and privatization outcomes.

This book has three important merits that should be acknowledged from the start. To begin with, as Fox and Heller state in their introduction, our theories of corporate governance rely heavily on the limited experience of advanced market [*154] economies, and are not necessarily generally applicable to the rest of the world. The volume’s emphasis on the transition experience “points the way toward a broader conception of corporate governance, one with timely implications even for wealthier countries” (p.vii). Second, about 15 years after market reforms began, the volume offers a timely assessment of the different forms of institutional change that have taken place in transition economies. The study of post-socialist transitions became a growing academic field in the late1980s; yet, as the book shows, many of the assumptions and prejudgments that were made at the start of the transition regarding the reform process have proved to be fallacious. Today we have more data with which to analyze comprehensively the reform process, and to draw robust conclusions about various elements of corporate governance. CORPORATE GOVERNANCE LESSONS offers many good examples of this nuanced scholarship. Third, most of the chapters tackle corporate governance questions from a comparative and historical perspective, allowing the reader to observe cross-national and time-series variations.

CORPORATE GOVERNANCE LESSONS is divided into five parts. The first part, which consists of one chapter by the editors, offers a conceptual framework for studying corporate governance. Following this theoretical chapter are seven empirical chapters organized into three parts (Parts 2, 3 and 4), each focusing on a specific element of corporate governance (law, owners and managers, and stock markets, respectively). The volume concludes with a single chapter in Part 5, in which editors Fox and Heller offer a discussion on how the experiences of corporate governance in Transition countries discussed in the preceding chapters contribute to our theories of corporate governance.

In their opening chapter, entitled, “What is Good Corporate Governance?” Fox and Heller argue that corporate governance is best defined by looking at the firm’s economic functions, rather than any particular set of national or corporate laws (p.4). From this perspective, “firms exhibit good corporate governance when they both maximize the firm’s residuals – the wealth generated by the real operations of the firm – and, in the case of investor-owned firms, distribute the wealth so generated to shareholders in a pro rata fashion” (p.4). Bad corporate governance manifests itself in a firm’s failure to meet one or both of these conditions. Building from this definition, and using Russia’s transition experience as a model, Fox and Heller develop a typology that shows the channels through which bad corporate governance can damage a nation’s economy. According to this typology, non-maximization of residuals can occur due to five types of pathological conditions (p.5): 1. unreformable value-destroying firms failing to close; 2. viable firms failing to use existing capacity efficiently; 3. firms misinvesting internally generated cash – flows; 4. firms failing to implement positive net present value (NPV) projects; and 5. firms failing to identify positive NPV projects. Non-pro rata distributions, on the [*155] other hand, can happen for two reasons: 1. firms failing to prevent diversion of claims; and 2. firms failing to prevent diversion of assets. According to Fox and Heller, it makes more sense for students of corporate governance to judge its quality in a given context by the degree to which these pathologies exist than by other factors. I sympathize with this argument.

The literature generally defines corporate governance as an assemblage of formal laws. The inquiries focus on how these laws (corporate laws, financial market regulations or labor laws) emerged from various cultural, political and economic processes throughout history, and how they affect firm practices and society’s overall performance (see Fig. 1 below).

Taking advanced countries’ experiences as their subject matter, most scholars and policymakers draw general conclusions as to what kinds of laws constitute good corporate governance structures, and prescribe legal changes for countries in transition. Shifting attention to firms’ economic functions (firm practices and corporate performance) in Transition economies might breed two benefits. First, it allows us to see the relationships specified in the below figure in a reverse causal order. It might indeed be rewarding to first look at how firms interacted with their social and legal environment during the transition period (i.e., firm practices), and find out what outcomes (for both firms and the economy) emerged from that process, before drawing conclusions regarding the laws and other institutional arrangements that work best in a given place. Second, focusing on business practices and economic effects, as Fox and Heller suggest, gives “more precision to the often vague notion of corporate governance failures” (p.390). We can thereby specify how poor corporate governance manifests itself, and through what mechanisms.

The second part of the volume addresses a set of questions regarding law’s relationship to economic change. In Chapter 2, Pistor uses cross-country formalized indicators to investigate this relationship. Her analysis, based on a sample of 24 countries with data from 1990 to 1998, focuses on the change in shareholder and creditor rights. She compares the level of shareholder versus creditor rights protection at the beginning of the transition process and as of 1998, and analyzes the scope of change in different nations. She presents three major findings. First she convincingly shows that transition economies’ pre-socialist heritage has [*156] little explanatory power for the observed patterns of legal change. As is well known, the literature distinguishes three groups of transition countries in terms of their pre-socialist legal heritage. The first group includes the nations of CEE and the Baltics, namely, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic and Slovenia, all of which have the German legal heritage. The second group includes countries of Southeastern Europe, namely, Albania, Bosnia, Bulgaria, the Federal Yugoslav Republic of Macedonia and Romania, which used to belong to the Ottoman Empire and received French law when the French legal system was modernized in the mid-19th century. The third group is composed of the former Soviet Socialist Republics excluding the Baltic nations. Pistor shows that these initial differences had little power to explain the observed patterns of legal change, and that lawmakers in transition economies were not seriously constrained by their countries’ historical ties to a particular legal family. To begin with, she notes, the differences in the laws on the books in transition countries are less than initially assumed. Throughout this time period, most countries strongly converged toward a formal legal system driven in part by external parties such as the EU or the US. However, this pattern of overall convergence, Pistor notes, must be qualified somehow because we still can observe some differences in nations’ patterns of legal change. These differences can be explained by several factors according to Pistor. One reason is governments’ policy choices, which affect the scope of legal reform in particular areas of the law (p.64). In nations that pursued a massive privatization strategy, laws regarding creditors’ and shareholders’ rights were improved considerably more than other types of law. The area of securities market regulation, for instance, was neglected in these nations. Another reason might be the particular type of external legal solutions available to a country. The extensive foreign technical assistance received by transition economies was very much responsible for both their degree of change and the general trend toward convergence in these regions. However, the particular group of advisors dominating a given country (US versus EU) might be partly responsible for the difference. Pistor’s final finding is that, in transition countries, legal reform has not initiated economic change but rather has responded to it.

This is a fascinating article that is theoretically interesting and empirically rigorous. Its author offers a balanced analysis that shows how and why convergence takes place and where we can see path dependence. When interpreting the article’s findings, however, it should be kept in mind that the author focuses on shareholders’ and creditors’ rights. If the inquiry had focused on other areas of law, then conclusions regarding convergence and path dependency might have turned out differently.

The third chapter, by Mahoney, entitled “The Common Law and Economic Growth” also tests quantitatively the role and limits of law’s relationship to economic change. A bulk of literature suggests that countries with common [*157] law systems have more developed financial systems than do civil law countries, and presents this is as the cause of their economic growth performance. Mahoney reconsiders this reported difference in corporate governance between common law and civil law countries. He examines differences in nations’ average annual growth in real per capita GDP from 1960 to 1992 (sample size: 102). He agrees that legal origin affects economic growth; however, he argues that finance (more specifically, rules of investor protection) is not the sole or principal challenge through which legal origin affects growth. Rather, he presents evidence favoring a Hayekian argument that the difference between common law and civil law countries stems from each system’s different philosophies of government. He argues (p.85), “Legal origin does not affect economic growth solely, or even principally, through its effect on financial markets. The major families of legal systems were created as a consequence of debates about government structure, not merely about the rules that should govern particular transactions. A country’s legal system accordingly reflects, albeit remotely and indirectly, a set of prior choices about the role of the state and the private sector in responding to change.” In short, according to Mahoney, common law countries experienced higher growth during those years because common law is associated with fewer governmental restrictions on liberty, more judicial power, and more secure property and contract rights (p.84).

The third part of the volume deals with the role that owners and managers played in determining corporate outcomes in the period of transition. Chapter 4, the longest chapter in the volume, by Black, Kraakman and Trassova, focuses on the dynamics and outcomes of mass privatization in Russia between 1992 and 1994. In its authors’ words, “the chapter joins an emerging literature that questions whether rapid mass privatization of large firms is an important element of the transition from central planning to a market economy” (p.114).

At the onset of Russia’s privatization efforts in the early 1990s, it was widely believed that privatization would lead to more efficiency and profitability at the firm level and more growth in the real economy. Instead, privatization in Russia led to massive self-dealing by managers and controlling shareholders; it has improved neither firms’ productivity nor growth. Enterprises were sold below their worth to corrupt economic actors, who then further increased their wealth and used their power to block reforms. In Chapter 4, using the Czech Republic as a comparative case, the authors offer an analysis of why Russia’s experience has not developed as anticipated and offer a general theory of what conditions privatization requires to be undertaken successfully and to produce desirable outcomes.

According to the authors, three factors seem to have prepared Russia’s privatization failure. First, the government, which lacked the capacity to force privatization on unwilling managers of state enterprises, sought to buy managers’ allegiance and support [*158] for reforms by granting them cheap shares. This strategy led to an ownership structure characterized by managers’ control of most enterprises. Managers who did not know how to run a company in a market economy made bad decisions and engaged in self-dealing. In the early 1990s Russia lacked the institutional structure to control self-dealing by managers of private firms. Basic commercial and capital markets law did not exist; an independent, well trained and honest judiciary was not available; and enforcement infrastructure was non-existent. The second factor was the hostile business environment. The punitive tax system, official corruption, organized crime, unfriendly bureaucracy, and a business culture in which skirting the law was seen as normal, even necessary, behavior made it impossible to restructure privatized enterprises and create new businesses. Finally, because corrupt officials and company insiders joined forces to resist them, potential improvements that might have emerged from future reforms were compromised. Based on this analysis, the authors contend that institutions matter more and privatization matters less; institutions must precede privatization.

This chapter, written by scholars who have firsthand knowledge of Russian privatization, presents a lot of information that is quite useful for students of Russia. The article is written in a descriptive and somewhat informal manner, however. The authors make many arguments, some of which are not substantiated by systematic evidence and read instead like ad hoc observations. It also is not clear what the Czech case contributes to this analysis. The authors contend that the Czech comparison “can help isolate which aspects of the Russian experience with rapid mass privatization were unique to Russia, and which may reflect deeper problems that arise when privatization precedes development of legal and institutional controls on self-dealing” (p.162). The Czech case remains, in many ways, a replica of the Russian case, however. Yes, the Czech Republic fared better in terms of the quality of its business environment but, lacking necessary controls, it also fell prey to self-dealing. The point of adding the Czech case to the analysis, then, is to emphasize that without strong controls on insider self-dealing, large scale privatization cannot succeed. In a small-N comparison such as this, however, it would make more sense to find a comparative case with institutional factors that, according to the authors, would have prevented the Russian privatization failure (such as strong controls on self-dealing), and whose outcome was successful.

Chapter 5, by Frydman, Hessel and Rapaczynski, focuses on entrepreneurship and restructuring of enterprises in Central Europe. This chapter adds to the debate on the relationship between ownership and corporate performance in nations with market transitions. While most literature on the subject discusses the difference between state and private ownership, this chapter shows that different types of private ownership matter also. The authors’ central question is whether firms controlled by certain types of private owners are more successful in restructuring than others. [*159]

Based on a survey of 506 mid-sized manufacturing firms in the Czech Republic, Hungary and Poland conducted in the fall of 1994, the authors examine the link between ownership and performance (revenue and cost performance, in particular). They find that firms controlled by outside investors outperform those controlled by corporate insiders. Then they elaborate what causes the positive impact of outside ownership. From their perspective, this impact is caused by the entrepreneurial attitudes of outside investors – in other words, their greater readiness to take risks, and a lesser need to defend and account for their managerial decisions.

This article deals with a very interesting question, and convincingly establishes the difference between two types of private owners (outside investors and corporate insiders). However, the authors’ explanation of the cause of this difference is not quite convincing. It is not clear from their analysis why the greater readiness to take risks, and lesser need to defend and account for managerial decisions, would make outside investors more successful.

Chapter 6, by Miwa and Ramseyer, draws comparisons between modern transition economies and the prewar Japanese economy. The logic of comparison is that structural factors, such as dysfunctional courts, nascent markets, non-existent statutes, and firms controlled by communist hacks which, for many observers characterize modern transition economies, existed in prewar Japan as well. For firms in these kinds of environments, the authors explain, observers often prescribe concentrated finance – that is, raising capital from a few sources and relying heavily on bank debt, rather than relying on broadly dispersed shareholdings. The reason for this is that it is generally believed that only large-block shareholders and banks effectively constrain managers in weak legal environments.

Miwa’s and Ramseyer’s study of Japan suggests otherwise, however. They examine the largest sector in prewar Japan – cotton spinning – to find out what capital and governance structures the more successful firms in the industry adopted. They find that the most successful firms relied on equity rather than bank debt, and raised it from many shareholders so that a few powerful ones would not intervene. The article argues that dominant shareholders, if corrupt or incompetent, can seriously impair corporate performance.

In Chapter 7 Coffee compares the Polish and Czech privatization experiences and argues that inadequate securities regulation primarily explains privatization failures. The Polish and Czech cases are similar in terms of their historical and cultural background, but they have displayed very different approaches to privatization. Viewing continued state ownership as a great danger, Czech authorities rushed into privatization in the early 1990s, with regulatory controls developed later in response to a series of crises and scandals. In contrast, Poland moved slowly and implemented a limited privatization program. Rather than assuming that a secondary market would develop spontaneously, Poland designed voucher investment funds as a [*160] mechanism to solve the individual’s perceived powerlessness in a massive privatization program. This way, Poland effectively substituted state-created monitors (in which citizens could invest) for direct state ownership.

The comparison of Poland and the Czech Republic constitutes an interesting puzzle for scholars who emphasize the importance of substantive corporate law. As Coffee explains, the corporate laws of Poland and the Czech Republic were largely the same: they each had a corporate law based heavily on the German civil law structure. Yet, their privatization experiences were different. According to Coffee, this is because these countries imposed different levels of regulation on their securities markets. Although both had corporate law based on German civil law, in its approach to securities regulations Poland remained closer to the British and American common law model. Poland imposed high disclosure standards from the beginning, created an SEC-like agency, and endorsed British style takeover regulations.

According to Coffee, the difference between the Czech and Polish privatization experiences also informs us on the question of why common law systems outperform civil law systems. According to Coffee, the reason for this lies not in the corporate law of common law countries but in their shared system of securities regulation. Common law systems endorse a style of securities regulation that discourages rent-seeking behavior through high disclosure standards, enforcement of transparency and minority protection, which lead to better performance.

In Chapter 8, Morck, Yeung and Yu add to the debate on the role of stock market structures in transition outcomes with an article that examines synchronicity in stock returns. They first report an interesting finding: stock returns are more synchronous in poor economies than in developed economies. That is, stock prices in emerging economies tend to move up or down together. In contrast, developed countries see a low degree of co-movement. The authors show that this difference is explained by measures of property rights protection. Less respect for private property by government is associated with more synchronous stock price movements. These results, according to the authors, also imply that stock markets in emerging economies may be less useful indicators of business practices and economic information than in advanced nations.

The question this article deals with is important, and the authors use rigorous methodology to present their argument. However, the reader expects more theoretical discussion, especially on two matters: one is the relationship between stock synchronicity and corporate governance. How does this relationship matter for our theories of corporate governance? What kinds of policy implications does it embody? And two, what is the theoretical link between private property protection and stock movements? The authors offer a two-page discussion on this question (pp.342-344), which suggests that poor property rights protection might deter [*161] risk arbitrage and create space for noise traders. Yet, as the authors themselves acknowledge, this interpretation is not altogether satisfying, and it is still not clear how and why this would lead to more synchronicity.

In the volume’s final chapter the editors, Fox and Heller, revisit the Russian experience to re-emphasize some of their theoretical claims. This chapter shows that the Russian experience is unique in the sense that “no other place in the world offers such ample and creative corporate governance pathologies” (p.391). Yet, at the same, being the closest example of an ideal-typical corporate governance failure, Russia’s experience informs us on various aspects of corporate governance.

On the whole, CORPORATE GOVERNANCE LESSONS FROM TRANSITION ECONOMY REFORMS is an excellent collection of essays that will surely become a “must-read” in both the post-socialist transitions and the corporate governance literatures.

REFERENCES:
Fligstein, N. and Choo, J. 2005. “Law and Corporate Governance.” 1 ANNAUAL REVIEW OF SOCIOLOGY 61-84.

Claessens, Stijn. 2006. “Corporate Governance and Development.” 21 THE WORLD BANK RESEARCH OBSERVER 91-122.

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© Copyright 2007 by the author, Basak Kus.

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BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN AN AGE OF TERRORISM

by Bruce Ackerman. New Haven: Yale University Press, 2006. 240pp. Cloth $26.00/£25.00. ISBN: 9780300112894. Paper. $17.00/£10.99. ISBN: 9780300122664.

Reviewed by Sara C. Benesh, Department of Political Science, University of Wisconsin, Milwaukee. Email: sbenesh [at] uwm.edu.

pp.150-152

This is not a war. This is not a crime. This is an emergency.

Thus begins Bruce Ackerman’s characterization of the post-September 11th situation in which we find ourselves, arguing that calling terrorism a war or a crime is incorrect and dangerous; rather, he argues, we are in a state of emergency and, as such, ought to establish governing guidelines that both acknowledge that fact and protect us from long-term damage to civil liberties. His book is a prescription on how best to do this.

He begins by defending his claim that, while executives love “war talk,” the “war on terrorism” is anything but a war. Wars have ends, usually resulting in a signed treaty between nations. And, declaring war on terrorism, which is a technique, makes little sense. A war also poses a political threat; in a classic war, one country seeks to disassemble the political order of the other. Terrorism, on the other hand, is only a physical threat. Terrorists do not wish to occupy or rule the country; they wish only to disrupt it. According to Ackerman, treating terrorist attacks as wars actually does what the terrorists cannot do: It threatens our country’s existence by threatening the liberties upon which it was founded. Using current situations as examples of the potential for long-term damage to freedom of such war talk (HAMDI, PADILLA), Ackerman makes a strong claim that what we are in is not a war.

Terrorist acts also do not, according to Ackerman, fit comfortably into the criminal code. The problem, he suggests, is that “the normal operation of the criminal law presupposes the effective sovereignty of the state, but a major terrorist attack challenges it” (p.43). As soon as people doubt the viability of the state, Ackerman argues, extraordinary powers in criminal investigation and prosecution, perhaps necessary during the immediate aftermath of the terrorist attack, become normalized and the criminal code, therefore, becomes more oppressive.

Rather than couching the current (and potential future) terrorist problems as either a war or a crime, Ackerman suggests we call it what it is: an emergency. Rather than normalizing ext