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 extraordinary criminal measures, his plan keeps it obvious that they are extraordinary. Rather than engaging in war talk, he couches the issue as one of a temporary emergency followed by a reasoned reaction, all of which is contained in a written document: an emergency constitution. His emergency constitution remedies what he sees as shortcomings in our current handling of [*151] emergencies (leaving too much to judges) and with the treatment of emergencies in the constitutions of other countries (which are limited to invasions and coups). He seeks “an effective short-run response without doing long-run damage” (p.68). His prescription is both creative and sensible; but is it realistic?

He would create a framework statute since Constitutional Amendment would prove too difficult and would not be necessary. The goal would be to minimize the likelihood of a second strike while also taking care to end the emergency when it is no longer needed. In order to reach those goals, he offers extraordinary power to the executive, but only subject to a “supermajoritarian escalator,” which requires, as its name implies, a larger and larger majority of Congress to continue the state of emergency.

In the emergency short term, Ackerman would allow for preventative detention, but would also include reparations later, if those detained were innocent, and provide some protections from arbitrary treatment including a bureaucratic identification, 45-day detention limits (with possible extensions), interrogation guidelines (no torture), emergency due process rights and access to an attorney, and the ability to challenge any terrorist designation. The courts would be charged with overseeing such treatment.

He provides for minority (party) oversight wherever possible, includes language to protect expression, and requires affirmative steps to continue the emergency. He also suggests that these emergency powers be granted only in exceptional circumstances; only when, he says, the attack is “on the scale of those which occurred on September 11, 2001” (p.93). Judges would assure the emergency is significant enough to invoke the emergency constitution and would be sure the supermajoritarian escalator is honored; that the President give up the emergency powers when Congress deems it time to end them.

In addition, he suggests that current lines of succession, in all of the national branches of government save the Senate, need to be rethought and retooled. A significant attack on Washington, DC, would be disastrous, he says, because we could be left with a bureaucrat no one knows or trusts as President, a tiny House, and no Supreme Court. The Senate would be okay, he says, because the Governors would appoint successors, which would allow both for well-known politicians in the chamber as well as continuity in terms of party. The other branches are totally ill-equipped to deal with a major catastrophe, however.

In terms of Presidential succession, Ackerman suggests a change in order to ensure both policy continuity and “statesmanship,” or political accomplishment. He would eliminate the “bumping mechanism” in the current statute and reconfigure the line such that the Senate majority and minority leaders would be in the line rather than the Senate pro tem. He also suggests, in order to keep policy continuity, that the President choose between the Speaker of the House and the minority leader in the House or, from the Senate, either the majority or minority leader, as next in [*152] line after the Vice President at the start of his term. He also suggests that the Secretary of Defense be moved to the end of the list along with the secretary of homeland security and that, perhaps, a retired senior statesman be added as “minister without portfolio” to be sure that, if the President, Vice President, party leaders in the House and Senate, the Secretaries of State and the Treasury, and the Attorney General are all unable to serve, the country would still have a well-known and trusted figure as its President. (He uses Colin Powell and George Mitchell as examples.)

As for the House for which there is no current means of replacement without special elections for each vacant seat, he suggests the election of Vice Members. While it is unclear what they would do in times of peace (day jobs?), Ackerman argues that this is both consistent with the constitution and far preferable to waiting for special election, perhaps relying on a “rump” Congress of small size and questionable representation.

Finally, the Supreme Court would be reconstituted by reliance on the Chief Judges of the U.S. Courts of Appeals (via a lottery, since there are twelve), on the same constitutional premise that allows for use of visiting district judges on the circuit courts. This would, he argues, save judicial independence (by not allowing an emergency President to appoint a whole new Court who will then either serve for life or serve a shorter, emergency period) and keep our best jurists on the Supreme Court.

One can (and some have) questioned various aspects of Ackerman’s prescription, and the debate, I think, is welcomed. (Is detention constitutional in light of the suspension clause? Is it morally right to allow for any sort of preventive detention? Is it realistic that a framework statute will be strong enough to resist the problem of a more permanent suspension of civil liberties better than the current “war” framework? Is it politically viable? Should judges have a larger role? Is it too much of a solution to a problem of indeterminate likelihood?) What Ackerman does is present an interesting, “outside the box” solution to the problem of curbing terrorism without curbing liberties (at least in the long term), and he does it in a convincing, engaging way. Especially foresighted, I think, are the proposals for rebuilding the House and the Court in the event of a governmental decapitation. While it is, in some ways, “a downer of a book” (p.9), it sure would be nice if Congress would pay some heed and at least include the Ackerman perspective in a dialogue over what should/could be done to better prepare us for “the next attack.”

CASE REFERENCES:
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

RUMSFELD v. PADILLA, 542 U.S. 426 (2004).

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© Copyright 2007 by the author, Sara C. Benesh.

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LITIGATING IN THE SHADOW OF DEATH: DEFENSE ATTORNEYS IN CAPITAL CASES

by Welsh S. White. Ann Arbor, MI: University of Michigan Press, 2006. 232pp. Cloth. $60.00. ISBN: 9780472099115. Paper. $21.95. ISBN: 9780472069118.

Reviewed by Evan J. Mandery, John Jay College of Criminal Justice. Email: emandery [at] jjay.cuny.edu.

pp.147-149

Read at one level, Welsh White’s LITIGATING IN THE SHADOW OF DEATH is a primer for any attorney embarking upon the Byzantine and macabre enterprise of litigating a capital case. Based largely on interviews with more than 30 outstanding death penalty lawyers, White explains how these attorneys – including Michael Burt, Stephen Bright, David Bruck, and Millard Farmer – have managed and continue to manage to secure often improbably favorable outcomes for their clients. Some of these lessons are not particularly surprising. The need to select jurors strategically, to investigate the mitigating elements of a client’s background thoroughly, and to present a powerful closing argument seem obvious components of good lawyering. But other lessons are more nuanced and decidedly not obvious.

White devotes substantial attention to the need for a defense attorney to develop a theme for mitigating evidence and, most compellingly of all, to the basic strategic dilemma that confronts all capital defense attorneys: the tap dance of managing the bifurcated trial. Following a guilty verdict, capital litigators face the Hobson’s choice of arguing the innocence of their client – and hence disrespecting the jury’s verdict – or conceding guilt and offering explanations for the client’s reason for committing the crime and hence appearing deceptive. White convincingly shows the necessity of beginning to develop a mitigating theme during the guilt phase of the trial lest the jury become hardened against defendant.

All of these lessons are presented cogently with illustrations from some of the most publicized death penalty cases in recent memories including, for example, the Lee Malvo case – where the defense offers evidence of insanity in part to lay a foundation for a sentencing phase argument, the William White case – where the defense strategically (and apparently judiciously) conducted jury selection with an eye to the sentencing phase of the trial, and the Daryl Atkins case, which, as is well known, created new protections for mentally retarded defendants. Simply for its useful guidance to capital litigators, helping them to think through thorny strategic issues, LITIGATING IN THE SHADOW OF DEATH is a valuable contribution to death penalty literature.

But LITIGATING IN THE SHADOW OF DEATH is also an important and damning critique of criminal justice in America. This is, to some extent, an easy case to make. Anyone who has litigated criminal cases or studied their practice can offer shocking anecdotes of attorneys who are less than competent, [*148] less than prepared, and less than zealous – occasionally so less than zealous that they see fit to sleep through substantial portions of their client’s trial. White offers particularly appalling examples of attorney misconduct in the death penalty context and presents them in a cogent manner, thus adding to the readability of the book. He also offers a well-reasoned critique of the inadequacies of the Supreme Court’s jurisprudence on ineffective assistance of counsel (mitigated somewhat after STRICKLAND by its more hopeful decisions in WIGGINS and WILLIAMS). But this is all old hat. The failings of attorneys and, more aptly, of the courts in regulating the behavior of attorneys has been well documented in the academy.

The more substantial contribution of this book is explaining why the inadequacies of representation are a death penalty issue. It may seem peculiar in a way to point to this as the legacy of a book that is explicitly about capital litigation. Of course capital defendants are overwhelmingly poor and hence dependent on court-appointed attorneys, and of course the poor performance of these attorneys can have the most dire consequences. But it also true that criminal defendants on the whole are overwhelmingly poor and hence dependent on court-appointed attorneys, and while these clients may not be threatened with death as a penalty, the poor performance of their attorneys can have dire consequences also. To identify the poor quality of representation as a death penalty issue, as opposed to a problem with American criminal justice in general, one has to demonstrate that capital defendants are uniquely affected – and not just by adverse outcomes – by the inadequacies of their attorneys. Professor White makes this case with aplomb.

White’s examination of the subtle strategic decisions that death penalty lawyers make – the kind I characterized as not obvious earlier – show that many of these considerations are beyond the ken of ordinary attorneys and often have a dramatic impact upon the outcome of a case. For example, White shows that many defense attorneys do not prepare for the guilt phase of a capital trial. This may seem like egregiously bad lawyering, but this forbearance is not necessarily borne of laziness or incompetence. It may be that an eager lawyer believes fervently in his ability to secure a favorable guilt-phase verdict for his client and cannot allow himself to think of the worst result, or that preparing for the sentencing phase will divert needed energy and resources from the guilt-phase effort. But as White shows, this is almost inevitably the wrong choice for the client. Similarly, it would not be clear to any but the most experienced capital litigators that the foundation for the theme for sentencing phase must be laid during the guilt phase of the trial or possibly lost forever, or that it would be a strategic error to rely exclusively on a lingering doubt argument during the sentencing phase.

The inadequacy of trial counsel for indigent defendants is a grave concern for the criminal justice system as whole and no more or less objectionable in the death penalty context because the stakes are higher. But LITIGATING IN THE [*149] SHADOW OF DEATH demonstrates that, in a system of capital punishment that regards arbitrariness as a primary evil, the choice of trial counsel (and later post-conviction counsel) makes an even greater difference than it would make in the ordinary criminal case. Capital litigation, White shows, is a world unto its own, and in many respects, categorically more complex than other sorts of criminal litigation.

One could quarrel with the absence of data to address some of the key questions here. It is ultimately an empirical question whether, as White contends, lawyers make all the difference. He says, for example, relying on Stephen Bright’s assessment, “capital defendants who have the ‘worst lawyers’ are likely to get the death penalty regardless of the nature of their crimes” (p.197). And he maintains the converse too, that “capital defendants who have the best lawyers are unlikely to get the death penalty regardless of their crimes or the government’s aggravating circumstances” (p.198). This is ultimately an empirical question. It is a complex question, but answerable all the same. Nevertheless, after reading this account of horrors and occasional successes, it is impossible to imagine that the answer could be anything other than what White intuits.

CASE REFERENCES:
STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984).

WIGGINS v. SMITH, 539 U.S. 510 (2003).

WILLIAMS v. TAYLOR 529 U.S. 362 (2000).

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© Copyright 2007 by the author, Evan J. Mandery.

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INTERNATIONAL FAMILY LAW: AN INTRODUCTION

by Barbara Stark. Aldershot, UK, and Burlington, VT: Ashgate Publishing Ltd, 2005. 288pp. Cloth. $124.95/£65.00. ISBN: 0754623416. Paper. $39.95/£25.00. ISBN: 0754623475.

Reviewed by Alice Hearst, Department of Government, Smith College. E-mail: ahearst [at] smith.edu.

pp.143-146

Family law historically has had a distinctly local flair, reflecting the norms and beliefs of particular communities; state codes were idiosyncratic, and lawyers had to be aware of local concerns when meeting their clients’ domestic needs. When American families became more mobile, family law shifted as states adopted uniform codes to facilitate the regulation of family lives across state boundaries. The current generation of family lawyers is acutely aware of the need to understand where family regulations diverge and converge from one state to another. They routinely deal with coordinating state regulatory schemes in matters varying from divorce and custody to domestic violence to child abuse and neglect to reproductive rights.

Today, families frequently cross not just state but national boundaries. Family law practitioners may find themselves called upon to resolve family conflicts not just from Nebraska to South Dakota, but from Nebraska to Ethiopia or Bulgaria. And it is not just the laws of other nation-states that lawyers must understand. In the last fifty years, a variety of international conventions and declarations have emerged in the realms of both public and private law, each of which may affect the resolution of particular family law disputes.

Questions about transnational and international family law are often overlooked in law school classes on the assumption that the issues are either too remote from most family law practices to warrant extended attention or are simply too complex to cover adequately. Barbara Stark’s INTERNATIONAL FAMILY LAW: AN INTRODUCTION nicely fills that lacuna. This slim volume alerts students to the complex range of factors that must be attended to when family disputes cross national boundaries. The book provides a much needed addition to the family law curriculum.

Stark, Professor of Law at Hofstra University, has long been interested in the intersections of family and international law. As she notes in the introduction to the book, families are not immune from the pressures of globalization: they are themselves adapting. But that adaptation works in a number of different directions. As she notes, “[e]ven as ties to [national/local] traditions become increasingly attenuated, their appeal may become even stronger” (p.1). Thus, cultural differences may, paradoxically, become more important than ever in resolving family conflicts. The very fact of those cultural differences makes it important to look at family law from an international perspective that incorporates a comparative understanding: “[T]he emphasis [in the [*144] book] is on the legal mechanisms devised by the international community to resolve or reconcile the different perspectives that a study of comparative family law reveals” (p.3). Moreover, the tools that the international community has developed operate in both public and private law arenas. A variety of Hague Conventions, for example, provide guidance in specific subject matter areas, such as adoption or child abduction, in addition to various bilateral treaties among nation states. Those private law agreements, however, must increasingly be squared with the requirements proposed in a growing number of international human rights instruments that touch on family life, from the Convention on the Rights of the Child (CRC), to the Convention on the Elimination of Discrimination Against Women (CEDAW), to the Draft Declaration on the Rights of Indigenous Peoples.

The book is divided into a number subject matter areas: marriage, non-marital partnerships, adoption, divorce (status, support and property), reproductive rights, issues around children (visitation, custody and abduction, and support), domestic violence and, finally, the human rights of individuals and the family itself. Each chapter begins with a representative problem, then gives an overview of the relevant legal principles, notes cultural variations that might affect the problem, and then draws the reader’s attention to private and public laws, regional conventions and specific national laws that must be considered in an analysis. The chapter concludes with information from various international and non-governmental organizations that have been concerned with these areas, and then suggests a possible resolution to the problem articulated at the outset.

A quick reading of any of the sample problems gives a sense of how complicated the issues are. For example, Chapter 4, Divorce, imagines an Egyptian man with two wives, both of whom he married in Cairo, who moves to Paris. Both wives have children; the older wife’s children are grown, while the younger wife’s son is quite young. Both wives want a divorce when it appears that their husband is involved with another woman. One wants to return to Egypt, while the other wants to remain in Paris. What complications arise around issues of terminating one or both marriages?

Chapter 4 begins with a quick overview of the principles that appear to underlie the practice of divorce in most societies: protecting vulnerable spouses and assuring support for children while allowing spouses to part ways in the least socially disruptive fashion. The chapter then discusses some of the cultural differences that are likely to emerge around issues of divorce: whether fault constitutes grounds for divorce in most societies and what, in different cultural contexts, amounts to fault. Adultery, for example, may be grounds for a fault-based divorce in some societies but not in others, or the rules for adultery may vary depending upon whether the allegedly adulterous partner is the husband or the wife. The chapter moves on to outline the relevant private law convention (the Hague Convention on the Recognition of [*145] Divorces and Legal Separations), as well as provisions from CEDAW and the International Covenant on Civil and Political Rights and the regional convention reflected in the European Council regulations on divorce. The chapter notes specifics of the French law of divorce, and takes a brief look at what various international human rights organizations have articulated as general standards relevant to questions of marital status. Interspersed in this brief overview of relevant principles in France and Egypt, Stark has asides on the law of divorce in India, Uganda, and Russia, and excerpts about Chinese and Indian marriage law.

The chapter concludes by returning to the hypothetical, which reveals a dizzying array of issues: the second wife will not be considered married under the laws of France and thus may have difficulty obtaining support for herself (although perhaps not her minor son). Stark points out that the refusal to recognize polygamous marriages, a major thrust of many international human rights statements which tend to view polygamy as harmful to women, thus puts the second wife into a very difficult position if she lives outside of Egypt. This same wife may, nonetheless, be required to obtain a divorce in Egypt, should she return. The first wife may obtain a divorce, but that divorce may or may not be recognized in Egypt upon her return, which will affect her ability to support herself in the long run.

It must be said that the first reaction of any student reading any given chapter is likely to be one of despair: the issues are unbelievably complex, and it would be tempting for students simply to throw up their hands in defeat. But law students will recognize the challenge, and will return to parse out the pieces of the puzzle. The book does an excellent job of teaching students to be aware of the enormous spectrum of laws, conventions, policy statements and cultural practices that must be considered in resolving transnational family conflicts, but it can necessarily only scratch the surface. It is just what it claims to be: an introduction whose primary purpose is to raise awareness of the convoluted nature of the issues.

There are a few technical problems with the book, attributable to Stark’s decision to give a very broad overview and her decision to utilize primary sources where possible. Sometimes, the book relies directly on excerpts from reports of international agencies, policy statements, and snippets of public and private national and international laws. At other times, Stark synthesizes materials, sometimes as brief riffs within a descriptive section, but occasionally as a separate segment within a particular section. In the section on national laws governing marriage in Chapter 4, for example, the laws of France, India and China are directly excerpted, but the section on Russia is the author’s own synthesis. This interpolation of materials is occasionally confusing and often jarring, as the various excerpts change emphasis, voice and audience. Reading can therefore be slow.

This book is geared primarily at law [*146] students. The ‘problem’ approach utilized in the book speaks clearly to law students who are used to the ubiquitous legal hypothetical, but it would be difficult for non-law students to follow the intricacies of each set of rules as they bear on these problems. It is nonetheless quite a useful book for scholars both inside and outside of the law: transnational regulation of the family figures prominently in current work by scholars in disciplines across the social sciences spectrum. Legal academics will be spurred to look into the convoluted legal webs that the book reveals, while non-legal academics will gain a clear sense of the irreducible complexity of the issues.

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© Copyright 2007 by the author, Alice Hearst.

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THE STRANGE CASE OF HELLISH NELL: THE STORY OF HELEN DUNCAN AND THE WITCH TRIAL OF WORLD WAR II

by Nina Shandler. Cambridge, MA: Da Capo Press, 2006. 289pp. Hardcover. $25.00/£14.99. ISBN: 0306814382.

Reviewed by Kevin M. Wagner, Department of Political Science, Florida Atlantic University. Email: kwagne15 [at] fau.edu.

pp.141-142

Nina Shandler presents a thoughtful and often entertaining look at an unusual chapter in World War II history. THE STRANGE CASE OF HELLISH NELL is a studied look at the efforts of British authorities to use the legal system to silence Helen Duncan, a purported psychic, who was demonstrating uncanny accuracy in revealing otherwise secret war information such as ship movements.

While this could have been written as a fairly dry look at the factual disposition of the case, Shandler paints a colorful picture, positioning her book more like an historical novel than an academic piece. The result is a pleasantly readable look into an historical oddity – a criminal witch trial occurring anachronistically amidst the epic events of the Second World War.

The book is presented in a series of descriptive chapters dramatically setting out the events leading up to and through the trial of Helen Duncan for witchcraft. The descriptions are vivid and paint a picture of real people caught up in a very human drama. The main players in the book are introduced in the beginning, and their motivations along with dispositions are explored through flashbacks and the largely omniscient observations of Shandler as she narrates the events.

What makes the story of Helen Duncan particularly interesting is the way the trial is juxtaposed against the backdrop of the war. Sahndler explores the absurdity of the events by beginning the book with a review of Winston Churchill’s own disbelief concerning the preoccupation of members of the government with the case while the war rages about Europe. The thematic contrast of the trial with the war continues, as Shandler regularly interrupts the story with notes concerning the state of the war. At one point, the Supreme Court is debating the difference between conjuration and witchcraft as Allied troops land in France. As an historical event, the witch trial seems likely to have been a footnote to far more important events. Yet understood in the context of the time, the trial was much more. Shandler notes that publicity about the trial in Britain briefly replaces war news, such as the advance of Soviet troops in the east.

Both the strength and weakness of the book is Shandler’s ability to blend the factual foundations of the events into a well-plotted narrative. The events are not so much chronicled as fancifully depicted based on available information. The book has numerous citations to support the account, but the narrative never delves deeply into the sources and seeks to focus the reader largely on the drama of the events rather than on the [*142] archives and other sources from which it is drawn. The footnotes are copious and frequent, but the citations seem more akin to sources of inspiration rather than data archives.

For a book positioned for popular appeal, it is very effective and makes for an easy and direct read. The chapters are fairly short, and Shandler does not dwell too long on any particular event. As a result, the book is a relatively light read that is often humorous and engaging. Shandler notes in her citations that scenes are “enriched” through the work of previous biographers, her own interviews, and visits to the actual places depicted in the book. This allows Shandler to attribute thoughts, attitudes and motivations to the various players which makes for a more complete story. Nonetheless, it also makes for a less factually grounded one as well. It may be frustrating for a more academic audience seeking a drier and less constructed view of the events. While everything is rigorously sourced, the characters demonstrate attitudes and dispositions that often seem more colorful and imaginative than substantive.

However, once placed within the context of an historical narrative, the book presents a genuine and often evocative examination of the manipulation of the legal system for national, and sometimes personal, interests. Helen Duncan was charged under the Witchcraft Act of 1735, as that was the most direct legal means to silence her. Shandler observed through her characters that there was simply no proof to support spying, deceit or even fraud. The charge of witchcraft is notable because it is unusual, but the use of law and courts to silence citizens during times of war is a common historic truth.

At no point does this book devolve into a commentary on the legal system. Yet, Shandler’s narrative serves to reinforce a more basic concern about human nature and the law. The story of Helen Duncan is a cautionary tale about paranoia and the lengths a government can and will go to defend secrets in times of stress and war.

The book should have some contemporary appeal outside the history class. As Shandler presents it, the events surrounding Duncan’s trial speak to some of the same conflicts and concerns about basic rights and legal processes that still exist today. As a result, I would recommend this book as a supplement to jurisprudence or law and society classes as a means to engage students on the role of law and courts, especially during times of war. While not a strong theoretical contribution to the study of law and courts, the book stands as a thoughtful addition to works focusing on a descriptive retelling of the historical relevance of courts within society.

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© Copyright 2007 by the author, Kevin M. Wagner.

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WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE, REVISED AND UPDATED, 10TH ANNIVERSARY EDITION

by Ian Haney López. New York: New York University Press, 2006. 263pp. Cloth $70.00. ISBN: 081473698X. Paper $21.00. ISBN: 0814736947.

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

pp.138-140

Here is one work that proved challenging to review with a fresh eye, having been widely reviewed and discussed since its original publication more than 10 years ago. Ian Haney López’s WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE has now been “Revised and Updated” for release as a “10th Anniversary Edition.” The existing text has been left unchanged, with only an original Preface and an original closing chapter added to constitute the revision. While one’s first question upon picking up such a book could easily be “why bother?” with the re-release of an older work, in this case, the strategy works. As Haney López asserts in his fresh Preface, it turns out correctly, the text from 1996 is still highly relevant to discussions of race in the US. Moreover, the newly penned closing chapter provides additional insights into the evolution and possible future of US society regarding race and racism that mesh well with the existing text. My own hope upon finishing this edition is that the new presentation of the book will provide the opportunity for a new generation of scholars to be introduced to Haney López’s powerful arguments critiquing racial identities in the US and the continuing challenges resulting from US society’s racial constructions.

A legal scholar, Haney López makes his contribution to the literature on critical race theory primarily through an assessment of mostly early 20th century judicial decisions attempting to determine who was to be considered as “White” in the US during that period. Described by Haney López as the “racial prerequisite cases,” which spanned from 1878 to 1944 and included two opinions by a unanimous Supreme Court in 1922-1923, these 52 published cases interpreted federal statutes tying the opportunity of naturalized citizenship explicitly to racial criteria (pp.2-3). Congress’s 1790 legislation on the matter required that an individual be “‘a free white person’” to qualify for naturalization (statute quoted by Haney López, p.31). While an 1870 statute also opened the opportunity of naturalization to “‘persons of African nativity, or African descent’” (statute quoted by Haney López, p.31), nearly all of the judicial decisions rendered involved individuals of non-European descent attempting (but usually failing) to gain judicial declarations that they were “White” and thus eligible for US citizenship through naturalization. As Haney López describes, the various judges used a variety of justifications for their rulings, most notably “common knowledge” and contemporary “scientific evidence” (p.3). The Supreme Court’s shift over the course of [*139] just a few months from a partial reliance on scientific criteria that allowed the justices to unanimously deny “White” standing to Takao Ozawa in OZAWA v. U.S. (1922) to a “common knowledge” approach that explicitly dismissed science in order to unanimously deny Bhagat Singh Thind “White” standing in U.S. v. THIND (1923) is particularly troubling in its arbitrariness. Upon the strength of such evidence, Haney López seeks to establish that basic human prejudice has contributed to the development of race as “a social construction fabricated in part by law” (p.109), with the effects remaining with us forcefully today. The discussions of the case rationales and relevant statutes provide a highly instructive lesson in how racial boundaries have been willfully drawn by policymakers over time.

In later chapters, Haney López successfully shifts gears to establish the continuing significance of such previously defined racial boundaries. The argument: race is simultaneously an entirely artificial construction and yet a nearly all-encompassing one, serving as a powerful force regarding one’s status and experience in the US. In Haney López’s words, “race is only an idea, but it is an implacable one whose material effects pervade and predominate all social relationships” (p.119). A great concern in these later chapters is the trend since the late 20th century towards “colorblindness” in US policy, for example in the dismantling of allegedly discriminatory affirmative action programs intended to assist minorities. Instead, Haney López asserts the impossibility of achieving a racially just society without continuing to acknowledge race for remedial purposes. He quotes Justice Blackmun’s eloquent statement in his solo BAKKE opinion: “‘In order to get beyond racism, we must first take account of race. There is no other way’” (quoted on p.124). One issue only just touched upon in this discussion, however, is defining these artificial racial categories for purposes of remediation (see for example p.88, citations omitted). Though he asserts that “there is no indication that in and of itself the legal construction of race is normatively good or bad” (p.81), Haney López has devastatingly critiqued past legal definitions of racial categories and the social forces that have gone into their development; can such definitions be any less problematic when designed for remedial purposes? Additionally, Haney López suggests he has no idea whether Justice Blackmun’s goal of “‘get[ting] beyond racism’” can ever be realized when he notes that he has no way of knowing “whether Whiteness can be dismantled” (p.133). Despite such sticking points, however, Haney López makes a compelling case for race-based remedies as a necessary means of at least attempting to promote greater opportunities and equality for disadvantaged racial minorities.

As noted above, it is to the original Preface and closing chapter, “Colorblind White Dominance,” that the reader must look for new insights in this edition. In the Preface, Haney López explores his own introduction to the study of race, and the closing chapter is devoted to his predictions regarding race relations into the foreseeable future. He predicts that the “racial ideology of colorblindness” [*140] (p.156) will dominate the racial landscape, with policies that, while on their face racially neutral, will still serve (whether unintentionally or deliberately) to perpetuate “White” domination of society and its resources and privileges. Though at present the phenomenon may seem difficult to visualize, his prediction that “White” standing, or some variation thereof, will eventually be accorded to some individuals currently categorized as racial minorities (primarily some Asians and Latinos) is consistent with the idea that racial identities morph over time. Further, he sees this development as being tied to, and perhaps assisting in, the continuation and entrenchment of racial divisions and inequality rather than their demise.

While the writing is accessible, even for many undergraduates, both the topic and the arguments will be uncomfortable for many (read “White”) readers. One concern is that individuals who may benefit the most from the work, including policymakers, may be the least likely to express an interest in picking it up on their own in the first place due to its unsettling assertions. As a tool for instruction, the book could be quite useful in a wide range of courses. Since the court cases evaluated focus on statutory analysis rather than constitutional issues, it may be difficult to fit the book into a standard course on constitutional law; however, it would certainly be appropriate for a seminar on civil rights or for a judicial process course, as well as for courses in racial/ethnic politics. Faculty at my own institution have long used excerpts of the original edition in courses ranging from Communication to Sociology and tell me that they have been pleased with its impact; I believe the addition of the author’s personal narrative in the Preface and his intriguing view into the future with the new conclusion will add to the book’s pedagogical value.

In sum, Haney López has provided a piece of scholarship worthy of bringing out for a curtain call on its 10th anniversary.

CASE REFERENCES:
OZAWA v. UNITED STATES, 260 U.S. 178 (1922).

UNITED STATES v. THIND, 261 U.S. 204 (1923).

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

STATUTORY REFERENCES:
ACT of MARCH 26, 1790, ch. 3, 1 Stat. 103.

ACT of JULY 14, 1870, ch. 255, §7, 16 Stat. 254.

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

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PUBLIC ACCOUNTABILTY: DESIGNS, DILEMMAS, AND EXPERIENCES

by Michael Dowdle (ed.). Cambridge Studies in Law and Society. Cambridge: Cambridge University Press, 2006. 474. Cloth. £55.00/$95.00. ISBN: 0521852145. Paper £24.99/$45.00. ISBN: 0521617618.

Reviewed by Ariel Meyerstein, J.D., Boalt Hall School of Law (University of Calfornia, Berkeley); PhD Candidate, Department of Jurisprudence and Social Policy, University of California, Berkeley. Email: ariel [at] berkeley.edu.

pp.129-137

This engaging collection edited by Michael Dowdle tackles the perception that public accountability in modern-day governance is in “crisis,” attacked by the combined forces of globalization and privatization. It handles this task with care, producing theoretically nuanced and empirically rich observations on how notions of public accountability have apparently evolved as the administrative state has adopted a variety of techniques to achieve this illusive but foundational ideal of political society. As many of the contributors ably demonstrate, while new configurations of the neoliberal regulatory era may in fact be deepening democratic deficits, limiting transparency mechanisms, and obstructing traditional checks and balances of public power, the “crisis” in public accountability is far from new.

This observation enhances the imperative to understand how notions of public accountability continue to shift over time, a project to which this volume makes an excellent contribution. While we may be correct in perceiving a crisis in accountability, this does not prevent us from finding accountability through other pathways. Nor does it necessarily imply that it has not always been there and we simply need to reconsider what to look for and how to conceive of it. The collective wisdom of PUBLIC ACCOUNTABILITY argues that, while privatization and globalization may present distinct challenges to public accountability, these transformations nonetheless also present new opportunities for experimentation and reinvigorated notions of accountability for re-defined conceptions of “the public.”

Dowdle has amassed an all-star cast of established and ascendant scholars in the areas of public law and administrative law whose essays approach the topic from a variety of angles. Indeed, one could not imagine a better list of contributors for this topic. This makes reading the collection a pure treat, offering something for every intellectual palette. Contributions range from abstract discussions of political theory and regime design to in-depth empirical studies that re-examine familiar questions of accountability in new public-private formulations, through the lenses of foreign experience, the activities of under-studied actors, or some combination thereof.

Often such diversity will lend collections an inchoate feel, but in this case, the disparate approaches and topics only [*130] complement one another. Contributors are often in explicit conversation with their co-contributors, illustrating one another’s points in constructive ways, while avoiding an overall sense of redundancy. Dowdle’s thoughtful organization of the volume facilitates this effect, as does his comprehensive and insightful introductory chapter, which more than merely summarizing the contributions, strives to link the pieces together and adds its own conceptual historically informed framework for understanding public accountability.

The introduction traces the historical origins and evolutions of notions of public accountability in the Anglo-American context, excavating how various “institutional architectures,” including elections, rationalized bureaucracies, judicial review, transparency, and “markets,” emerged as “exigent responses to various legitimacy crises” in Anglo-American governance (pp.3-4). Though the emergence of these different modalities could have initiated a series of different public accountability paradigms, what instead happened was a coalescing over time of these various logics into a singular understanding of public accountability consisting of an “accretional layering” in which the bureaucratic form has dominated (p.6). Indeed, even with the rise of new discourses and technologies motivated by an anti-administrative impulse (e.g., contracting out, devolution, “streamlined government”), these would come only to substitute one bureaucracy for another, less visible one.

Despite the long-time dominance of the Anglo-American bureaucratic model as a global standard, Dowdle notes that the end of the Cold War caused it to fragment under the pressure of “newer and more localized organizational logics that stress flexibility and decentralization” (p.10). This development – the “retreat of the logic of modernization”(p.10) – ironically quickened the development of public accountability discourse; globalization created new demands for more public accountability by the ever-expanding cast of actors whose activities began to affect people who previously were exclusively touched (or left alone) by the hands of their respective governments. Dowdle ends his thematic overview by noting that our differing vantage points through which we encounter public accountability further fragment the concept. Each of these different perspectives entail different epistemologies of how we understand the concept; as citizens or participants, as architects and designers of its structures, and through experience, which suggests a more dialogic epistemology. Building on the biologist Edward O. Wilson’s notion of “consilience,” Dowdle promotes the diversity of the volume as a particularly promising mode for increasing our understanding of accountability, as he recognizes the potential for new understanding created when “different experiences and epistemologies come in contact and learn from one another” (p.16). This review cannot possibly respond adequately to this eclectic diversity in so little space, but it will endeavor to capture some of the highlights of the contributions. [*131]

Dowdle divides the essays into four sections. The first section, “accountability and the state,” discusses the topic in the arena with which most readers will probably be familiar: the contemporary “crisis” in public accountability emerging from the traditional bureaucratic structuring of state power.

John Braithwaite’s essay explores one of the insufficiencies of bureaucratic power in the criminal justice arena. He points out the need to supplement the punitive measures of contemporary criminal justice systems’ bureaucratic accountability with more restorative mechanisms offered by horizontal accountability, which respond to disruptions in communal life caused by both the initial criminal act and its punishment. Noting that accountability and responsibility are related yet distinct concepts, Braithwaite calls for a shift from the limited “passive responsibility” demanded by traditional criminal jurisprudence, to the more demanding “active responsibility” found in restorative justice. Active responsibility offers both opportunities and new challenges in repairing wrongs by “widening the circle” of responsibility to include not only agents of the state, but also local stakeholders in communities impacted by crime.

Edward Rubin’s chapter explores the origins of the accountability crisis as a function of the historical evolution of the modern regulatory and administrative state coming into tension with an “anti-administrative impulse,” – individual and collective yearning for more intimate, responsive governance (p.76). The problem, Rubin insightfully identifies, is one of scale, and it is inevitable; the needs created in political subjects by industrialized economies and the demands placed on the state lead to a necessarily bureaucratic form of governance, but in the same moment we feel a hostility towards this solution because of the loss of humanity, community and simplicity it entails. Rubin convincingly shows how arguments for securing accountability, both in traditional ways, such as through elections, and in more recent formulations, through devolutions to localities or private parties, all fail to recognize the inescapably administrative nature of accountability. Accordingly, when such arguments indulge this “anti-administrative impulse,” they engage in political escapism grounded in falsely-constructed nostalgia for a political life that never existed.

Jody Freeman takes a bit more optimistic view of the more recent evolutions in accountability, arguing for the “publicization” of the new public-private forms of governance and accountability. She argues that these newer forms, which rely on horizontal networks and invite more consultation and participation (e.g., through the contract negotiation process), may offer distinct advantages over the formal and hierarchical accountability offered by bureaucracies.

The second part of the book addresses questions of institutional design. Jerry Mashaw offers an excellent theoretical discussion providing tools for assessing any accountability regime. Mashaw proposes that the essential questions to [*132] ask of any accountability regime in order to measure its efficacy are: “who is liable or accountable to whom; what they are liable to be called to account for; through what processes accountability is to be assured; by what standards the putatively accountable behavior is to be judged; and, what the potential effects are of finding that those standards have been breached” (p.118). Mashaw then offers a partial taxonomy of accountability regimes in three sectors – public, market, and social – and concludes by applying his conceptual paradigm to assess the efficacy of “contracting-out” in the specific context of social security disability insurance.

Michele Ford’s chapter on labor organizing in Indonesia complicates analyses of accountability that too hastily draw their conclusions based purely on formal distinctions in organizational structures. Ford shows that measuring accountability requires going beyond assessments of formal structure to include multidimensional analyses that recognize particularized environmental pressures affecting an organization’s ability to be responsive to its constituents. Colin Scott’s chapter similarly complicates overly simplistic approaches. Scott explicates the various modalities of accountability in modern governance – hiearchy, competition, control, and, community – and notes that often accountability is achieved through a “heterarchical mixing of these modalities of control” (p.184). Accordingly, we must widen our focus beyond a single governance organization to encompass an entire governance regime in order to view the “hybridity of control” that can emerge in different settings. For example, business people routinely ignoring contractual terms and creating appropriate dispute resolution mechanisms without recourse to law would indicate a “community” model of control rather than the “competition” model one might expect.

The offerings in the third section of Public Accountability focus on the ever-important concerns surrounding the concept of participation. Christine Harrington and Z. Umut Turem’s chapter on neoliberal regulatory regimes takes a more poststructural approach than other chapters. They attempt to understand how modes of accountability have changed, but more importantly, to see the way accountability is currently “mobilized as a powerful political symbol to legitimate a certain type of regulatory regime” (p.201). Focusing on the effects of the Negotiated Rule Making Act (NRA), Harrington and Turem point to the direction in which the neoliberal regulatory apparatus may be taking us: maximizing the participation and transparency for certain nongovernmental actors, while limiting these benefits for the public at large. While these advocates promote “stakeholder” models as fixing some of the problems of traditional bureaucratic regimes, Harrington and Turem argue that they in fact destroy the crucial principal-agent nexus upon which these regimes are built, replacing it with a perhaps unduly celebrated version of “participation.” At the same time, the deference imposed on the judiciary for negotiated rulemaking agreements by the NRA removes any external check that would otherwise be in place under traditional configurations. The authors [*133] close their essay with a warning that, removed from the judicial gaze, the inner dynamics of negotiated rulemaking may ultimately bias “repeat players” over “one shot players.”

In her chapter, Bronwen Morgan brings together many of the strands of other chapters – particularly those presented in Rubin’s, Freeman’s, and Mashall’s discussions – into a comprehensive view of what globalization means for accountability. She argues that, while globalization threatens to exacerbate trends that privilege technocratic forms of accountability, we are nonetheless empowered to embed in these ever-bureaucratizing processes a logic of “convivial accountability” that lend a sense of collective identity and shared purpose to our governance practices.

Morgan argues that most forms of traditional accountability, no matter the institutional setting or configuration, in some way aspire to the “triadic” model of accountability that Martin Shapiro long ago identified as the essential logic of judging (p.247). This “technocratic” kind of accountability has dominated all institutions of governance, from regulatory oversight to transnational adjudication of human rights, and even serves as the logic underlying “more participatory, locally embedded modes of democratic accountability,” such as Braithwaite’s “responsive regulation,” and Dorf’s and Sabel’s “democratic experimentalism” (p.254). Given the triadic model’s expansive range, Morgan claims that the accountability crisis must be viewed in terms of this model’s limitations, rather than as some “conflict between bureaucracy, judicialization or democracy” (p.256).

Even if technocratic forms manage to increase opportunities for deliberation and participation, however, Morgan observes that an elusive element is still lacking: “implicit community” (p.259). “Convivial accountability” serves to supplement this missing piece, as it is more able to create a space for the kind of discussions about competing values that are essential to the formation of community (p.259). In contrast to the triadic logic of technocratic accountability and its preoccupation with “disinterestdness,” and decision-making based on expert knowledge, “convivial accountability” grounds itself in the “tacit nature of the expertise that underpins shared experiences, values, symbols, identities, and understandings,” which enables “multiple implicit communities to co-exist peacefully, and to adjust to conflict incrementally and pragmatically” (p.259). What is gained with convivial accountability, then, is a different style of debate that facilitates the creation of community precisely because it does not follow the logic of routinization and expert knowledge relied upon in technocratic models.

Morgan ends her piece by examining the water struggles in Cochabamba, Bolivia. She observes that globalization is exacerbating trends in which “territorially defined communities” (those formed by geographic affinity and reliance on identity and custom) are displaced with the esoteric knowledge practices of “functional, non-geographically defined communities” (those more reliant on science and other rational-technocratic knowledge) thereby [*134] limiting access and opportunities for involvement in governance. The water struggles in Cochamba present a moment of such displacement, and Morgan construes the social protests they entailed as an attempt to implant convivial accountability into a process dominated by technocratic accountability. She concludes by questioning whether the impulse towards convivial accountability visible in the rise of transnational social movements can ever become responsive to the bureaucratic demands of everyday governance.

The fourth and final section of the volume focuses on the question of what potential accountability regimes can learn from experience. Sasha Courville’s chapter presents a novel understanding of accountability as a process of continuous “learning” – recognition of and responsiveness to accountability issues as they arise. Looking at international private and voluntary market-based certification and accreditation systems, Courville notes that, if they are willing and all members are prepared to participate in the problem-solving activity, such governance configurations can indeed routinize configurations that begin as more spontaneous accountability regimes. Even though such interventions may ultimately be less effective than bureaucratic accountability, these institutions nonetheless maintain legitimacy, not from their functionality, but from participants’ experience of the institutions’ responsiveness to emerging issues. As Dowdle notes in his introduction, Courville’s chapter responds to the theoretical problems raised in other chapters – particularly the question of whether a priori design decisions can capitalize on ex post analysis of institutions. Dowdle responds that Courville seems to suggest this outcome-oriented question is not the one to ask, but rather, the focus should be on the process itself. Accountability can emerge, she explains, from the analytic effort of analyzing problems and attempting to resolve them, which she describes as creating a “culture” that is willing to subject the institution to “continual improvement and periodic revision,” by being inclusive of all stakeholders, responsive to issues, and flexible in the rules and procedures it adopts (p.296). Thus, Courville pleads for thinking about institutional design in terms of cycles, rather than remaining stuck in more static conceptions.

Michael Dorf’s chapter is also useful in helping to reconceive how we think about accountability in a more familiar setting. Dorf tackles a very old problem that legal theorists have wrestled with for generations: the apparent judicial accountability deficit – what Alexander Bickel termed the “counter-majoritarian difficulty” (p.301). Dorf argues against what he characterizes as the “zero-sum picture of courts versus other government actors” as inaccurate, claiming that we must not narrowly conceive of judging as a trade-off between sacrificing self-rule in order “to keep the Leviathan within tolerable limits” (p.302). Instead, Dorf advocates for adopting the broad framework of “democratic experimentalism,” espoused by himself, Charles Sabel, and others. Democratic experimentalism puts forward a model of participatory [*135] administration in which local units of government are “broadly free to set goals and to choose the means to attain them” (p.302). The engagement in “practical deliberation” of individuals acting alone, through stakeholder organizations, and via locally elected officials, enables the discovery of novel solutions to collective problems, which can pacify long-standing political animosity, open the space for new contestation, though it never really permits complete harmony to settle-in.

Drawing on the practical experiences of innovative “problem-solving courts,” Dorf’s essay applies the experimentalist methods that have started to take root in the private sector and in public administration to the work of the federal appellate courts. Cast in this light, the courts would act as “meta-problem solving courts,” doing similar work to comparable institutions reviewing the work of other problem-solving institutions, such as experimentalist administrative agencies. While front-line problem-solving institutions monitor the provision of services, meta-level reviewing courts would “monitor the monitoring,” and, mirroring the problem-solving courts abstention from reviewing the contested choice between one of several alternative solutions, these experimentalist appellate courts would “rarely resolve contested questions of law in the sense of choosing one rather than another meaning of authoritative text” (p.319). This in turn would lessen the accountability deficit in the courts because they would be provided fewer opportunities to impose their own normative views on “ambiguous authoritative texts nominally traceable to the popular will” (p.319), and would also be better prepared to hold primary actors accountable to choices actually made by society.

Dorf tests his theories on two kinds of cases that come before appellate courts: “big cases” (those that tax courts’ “administrative capacities”), and “hard cases” (those that demand judges to negotiate the moral diversity of our society via the medium of ambiguous legal texts) (p.322). Dorf notes that this distinction is often not as clear as we like to think, and concedes that courts practicing experimentalism – returning the job of collectively constructing solutions to shared problem to the actors that are affect by them – may not be suitable for truly hard cases, those that are hard without also being “big.” Pointing to quintessential “big” cases, Dorf emphasizes the social contingency of the volume and ferocity of moral disagreement over “big cases” to observe that the “current intractability of some moral questions is certainly not an indictment of experimentalism,” since polarization over norms often lessens over time. This is evident in the relative acquiescence of the public to the Supreme Court’s decision in GRISWOLD v. CONNECTICUT (which invalidated a ban on contraceptive use), in contrast to the intense protest following its rulings in BROWN v. BOARD OF EDUCATION (declaring school segregation unconstitutional) or ROE v. WADE (protecting a woman’s right to an abortion on privacy grounds).

This leads Dorf to extract two advantages offered by experimentalist [*136] appellate judging over conventional judging. First, in big cases, those that strain judges’ administrative competence and not their moral authority, experimentalism allows for devolution of such coordination to “local learning,” while avoiding traditional hierarchical bureaucratic control (p.327). Similarly, in hard cases, where a court’s decision will fall short of actually changing social practice because of social opposition, experimentalism will “soften the sting for those on the losing end of the initial decision,” by bringing them into dialogue with those on the other side (p.327). At least in pacific political moments, rather than, for example, civil wars, Dorf thinks that this social dialogue can “reveal previously unseen commonalities of interest and even constitute common values” (p.327). In conclusion, Dorf thinks that rather than frame the difficult problems of size and scale as a choice between institutional settings – i.e., problem-solving by a court versus an a legislature or an agency – that the real question is whether the chosen institution “adopts problem-solving methods equal to the challenge” (p.328).

The volume concludes with a chapter by its editor, Michael Dowdle, on how the view of the outsider (here a comparative constitutional law scholar) on the development of accountability mechanisms in a foreign context (China), may be a useful learning strategy. Dowdle suggests that adopting the view of the outsider may develop new analytical methodologies that would help rethink the problem of accountability on more familiar (domestic) soil by overcoming the cognitive limits constraining our understanding of our own constitutional system. In other words, if we turn these new lenses back on ourselves, we might just learn a new way to look at our own system.

Specifically, Dowdle argues that the two-level dynamic of our “regulatory” constitutional model is “a projection of late nineteenth century industrialization.” Embedded in it is a “presumption that the constitutional environment . . . is ‘regularized’ in such a way as to be directly comprehensible to a centralized administrative apparatus” (p.331). According to Dowdle, this very particularized understanding of socio-political organization is “neither universal, nor historically or functionally inevitable” (p.331). We have become trapped in this optic, however, eschewing “non-regularized” structures found in other constitutional spaces (i.e., China) because they seem to fail our definitions of proper constitutional orderings. The problem, then, is in the deductive character of our model; adopting a more inductive approach might help locate emergent constitutionalism in China even in the absence of the trappings of our two-level regulatory system.

In fact, Dowdle identifies such developments in the role played by the National People’s Congress (NPC) as a relevant political actor in China’s political system. Contrasting William Alford’s and Benjamin Liebman’s pessimistic account of the development of clean air legislation in China with his own inductive account, Dowdle shows how Alford’s and Liebman’s [*137] “regulatory” optic fails to capture “possible incidents” of constitutional accountability, i.e., moments in which political actors seem to have altered their behavior to conform to the “stated demands of constitutionalism” (p.353). While Alford and Liebman view the NPC as just another tightly controlled-elite bureaucratic institution, Dowdle perceives a variety of constitutional “behavior” that carries promise for the future.

In this way, Dowdle observes, the NPC, while lacking the traditional elements of “constitutional legitimacy” because of its “significant electoral and democratic infirmities,” acts very much like parliaments elsewhere: it works as a conduit for a variety of public and private constitutional actors to “craft legal-regulatory responses to social problems” (p.357). He suggests that Anglo-American analyses of preliminary constitutional development that obsess over courts might be well-served to refocus their attention on other institutions as well. This observation affirms for Dowdle the benefits of the inductive approach, as it allows us to find accountability where we previously would have been quick to bemoan its absence.

Dowdle’s chapter is a fitting conclusion to the volume. Like many of the other contributions, it reviews traditional understandings of public accountability as we have conceived of them and steps back to show what these trusted understandings are “really about.” It then looks at a new context or development to assess the extent of the veracity of the perception that public accountability in that particular setting is indeed “in crisis” by examining the situation through the conventional paradigm, as well as the new framework forwarded by the author. As in the other essays, this method is extremely fruitful because it visits new problems simultaneously with old and new lenses, opening us to the potential to see just how much things have changed and how much they remain the same, and how this question itself depends on the optic through which we choose to look. In sum, the collective efforts in PUBLIC ACCOUNTABILITY provide an essential resource to old and new students of the perennial questions of how we choose to govern ourselves, and the relative fairness and efficacy of the methods we employ to constrain the institutions of rule we create.

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

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

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

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© Copyright 2007 by the author, Ariel Meyerstein.

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THE GOVERNANCE OF PRIVACY: POLICY INSTRUMENTS IN GLOBAL PERSPECTIVE

by Colin J. Bennett and Charles D. Raab. Cambridge: The MIT Press, 2006. 368pp. Paper. $30.00/£19.95. ISBN: 0262524538.

Reviewed by Christopher Shortell, California State University, Northridge. Email: cshortell [at] csun.edu.

pp.125-128

In THE GOVERNANCE OF PRIVACY, Colin Bennett from University of Victoria and Charles Raab from University of Edinburgh attempt the daunting task of moving towards a more systematic and empirical evaluation of privacy protections globally. The authors bring an impressive command of the literature and privacy practices to bear on their questions and demonstrate a remarkable degree of subtlety and nuance in the book. There are simply no other studies on privacy that combine the comprehensiveness and rigor demonstrated by these authors.

Bennett and Raab begin by making two key observations. First, they argue that privacy related problems are political and policy issues just as much, if not more, than legal or technical issues. Limiting analysis of privacy to strictly legal or technical approaches, then, ignores critically important aspects of privacy. Secondly, the authors note that globalization has a dramatic impact on the regulation of privacy. Regulation instruments exist at both the national and international levels, with interactions in both directions. These observations drive the authors’ inquiry into privacy governance and shape the focus of the study.

The book is divided into three sections. The first section deals with the goals of privacy protection. In this section the authors approach privacy primarily from a theoretical standpoint. Why is privacy worth protecting at all? The second section describes the many policy instruments that are in place internationally, nationally, and across industrial sectors throughout the world. These are not limited to legal obligations, but also include codes of practice and technological developments for individual consumers. The final section of the book focuses on the impact of these many policy instruments. Bennett and Raab conclude by looking ahead to the future to predict where privacy protection is heading. I will discuss each of the sections in turn, followed by some thoughts about the successes and challenges presented in their work.

Part I comprises the most theoretical portion of the work. Chapter 1 describes the dominant beliefs about privacy that underlies much of the regulation in place today. As the authors deftly explain, current approaches to privacy protection are based heavily on the paradigm of liberalism. Data subjects are assumed to be autonomous individuals with an interest in controlling information about themselves. Privacy can be justified in terms of promoting liberal democracy, but its specifics are highly subjective. Different people care about different types of personal information at different [*126] times. In a liberal paradigm, then, the focus must be on procedural rather than substantive data protection for the individual. If an individual’s privacy is violated, there are procedures in place which allow for an individual remedy.

In Chapter 2, the authors directly challenge the wisdom of relying on a liberal paradigm when it comes to privacy. Building on Priscilla Regan’s work (1995), they point out that privacy operates not only at the individual level, but also at a societal level. A chilling effect on associational activities has broad repercussions for society beyond those immediately impacted. For Bennett and Raab, excessive surveillance can result in social inequities- some are more protected than others. For them, “the recognition that who wins and who loses from privacy protection is a central issue would alter the policy playing field, the actors who may be mobilized, and hence the ‘politics’ of privacy” (p. 38).

Chapter 3 shifts away from the primary philosophical discourse surrounding privacy to focus on two related issues – trust and risk. Privacy is increasingly viewed as instrumental in securing the trust of consumers with regard to electronic commerce. Bennett and Raab call for greater academic attention to notions of trust and how they affect the development and evaluation of privacy regulation. Risk, likewise, is a critical factor to take into account. What level of risk is acceptable when handling data? Who decides that?

In Part II, the authors shift focus to the largely descriptive task of presenting and classifying the many privacy policies currently in place. The section is divided into chapters devoted to transnational conventions, national-level regulatory agencies, industry self-regulation, and technological instruments. With great care, Bennett and Raab discuss the origins of the Council of Europe convention, the Organization for Economic Coordination and Development guidelines, and the European Union directive on privacy. They note the interactions between these different standards and the ways in which political pressures led to divergent outcomes. Recent developments in Asia and in international standards bodies are also briefly considered. This discussion largely sets the stage for implementation of these principles at the national level and through industry associations.

The chapter on self-regulating instruments is particularly interesting. Bennett and Raab show how informal self-regulation through industry associations and individual firms is often intended to head off more rigorous legislation from government. The absence of formal laws does not necessarily mean that privacy is unprotected. Where there is threat of adoption of data protection laws, companies will often strategically follow at least some privacy standards. In legal terms, these firms are operating in the shadow of the law. Bennett and Raab do an excellent job of tracing out the motivations and reactions of various private and public actors with regard to self-regulation. This is particularly relevant in the United States, which lacks the comprehensive data protection laws found in most other western [*127] industrialized countries. Part II concludes with a consideration of the role of technology in privacy protections. The authors not only catalog some of the myriad privacy technology available for consumers, but they also explore how the very design of technology, such as the use of cookies, can either be more or less privacy protective.

The heart of the book is found in Part III. After the setup from Parts I and II, the authors turn their attention to gauging the impact of these privacy policy regimes. Bennett and Raab acknowledge up front that we are not yet in a position to provide any kind of comprehensive evaluation of the impact of privacy protections. As they argue, privacy itself is a contested notion, making measurement very difficult. However, they are not content to leave it at that. They endeavor to identify how one could evaluate not only the economy, efficiency, and effectiveness of privacy policies, but also the equity inherent in them. They do a tremendous job categorizing, specifying, and operationalizing some very complex issues. The strength of their analysis lies in the attention they pay to the ways that different areas influence one another. Transnational regimes influence national regulatory agencies and companies, but are themselves influenced by privacy commissioners and industry associations. Evaluating the work of privacy commissioners alone is no more sufficient than simply evaluating the practices of private companies.

Bennett and Raab conclude with a consideration of whether privacy protections are engaged in a “race to the bottom” or a “race to the top.” After considering available evidence, they argue that privacy protection is actually improving globally. Companies are not moving around in order to avoid privacy regulations such as those developed in the EU. Instead, there has been a gradual increase in awareness and action on the issue of privacy. Off-setting this positive note, however, is the realization that privacy protection may not be “trading up” as rapidly as other global factors – “those of the extensive, intensive processing of personal data; of the transformation of economic activity through the use of electronic communications and information infrastructures; and of the globalization of law enforcement and security objectives” (p.289). In particular, the changes in state behavior with regard to law enforcement in the wake of September 11 threaten the improvements in privacy protection that have been won over the last two decades. These realities lead the authors to conclude that the future will be mixed. There will be privacy gains in some sectors that will be offset by privacy losses in other sectors.

While on the whole the book is remarkably thorough, there are a couple areas that could have used some additional attention. The authors are correct to note that formal laws and legal proceedings fail to tell the whole story about privacy protections. However, even the authors note that “the evolution of a jurisprudence growing out of cases brought to courts or tribunals all give some comfort to the cause of privacy” (p.146). Unfortunately, there is no [*128] follow-up on what this jurisprudence is or how it interacts with the other factors that the authors so carefully detail. I agree with the authors that a strictly legal approach misses too much, but the courts are not irrelevant. Those privacy cases that do get decided affect the behavior of data controllers and regulating agents in important ways. Future privacy scholars should make an effort to integrate the courts and law more fully into the picture that Bennett and Raab draw.

A second concern relates to the relatively limited attention given to threats to privacy from government agencies. Most of the discussion on this is found in the last few pages of the concluding chapter, but the changes in acceptance of government surveillance plays a significant role in the broader issues of privacy. For example, in the United States, attempts to establish the Total Information Awareness program and its successors relies in part on matching of publicly held data with privately generated databases primarily intended for marketing purposes. Where governments rely on surveillance of that sort, the likelihood of new, more restrictive laws and the successful enforcement of existing laws may be diminished. This dynamic is likely to be a prominent one in coming years with regard to privacy, and a greater integration of that dynamic in the work would have been valuable.

Nonetheless, this is an impressive study. Bennett and Raab bring together a wealth of experience and data to provide far greater order and rigor to the study of privacy. At the end, we are left with more questions than answers, but they are useful questions and suggest future directions for research.

REFERENCES:
Regan, Priscilla. 1995. LEGISLATING PRIVACY: TECHNOLOGY, SOCIAL VALUES AND PUBLIC POLICY. Chapel Hill: University of North Carolina Press.

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© Copyright 2007 by the author, Christopher Shortell.

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THE CIVIL CONTINGENCIES ACT 2004: RISK, RESILLIENCE, AND THE LAW IN THE UNITED KINGDOM

by Clive Walker and James Broderick. Oxford: Oxford University Press, 2006. 416pp. Paper. £49.95/$95.00. ISBN: 9780199296262.

Reviewed by Michael P. Allen, Associate Professor of Law, Stetson University College of Law. Email: allen@law.stetson.edu.

pp.122-124

In the wake of emergencies both natural (e.g., floods and cattle disease) and manmade (e.g., 9/11 and terrorism generally), the Parliament of the United Kingdom passed The Civil Contingencies Act 2004 (the “Act”). The Act had two principal aims: to provide frameworks (1) for comprehensively preparing for future emergencies; and (2) by which government at all levels would operate under emergency conditions when they inevitably occurred. In other words, the Act sought to manage risk before an event and ensure the resiliency of government after the fact.

Like the statute that is its subject, THE CIVIL CONTINGENCIES ACT 2004: RISK, RESILLIENCE, AND THE LAW IN THE UNITED KINGDOM is really an amalgamation of two quite different things. On one level, this book is a highly detailed analysis of the Act and its associated regulations. But the book is much more. Clive Walker and James Broderick have also taken pains to situate the Act within the theoretical framework by which modern societies deal with risk and uncertainty more generally. Walker and Broderick undertook a substantial challenge to accomplish both goals in a single work. By and large they have done so in this interesting book.

Walker, a professor of criminal justice studies at the University of Leeds, and Broderick, a lecturer in emergency planning management at the University of Leicester, faced an important threshold decision with respect to the book: should they first describe the Act and then situate it in the relevant theoretical framework or should they begin with the theory of risk management and then turn to the Act itself. They elected to begin with theory and then turn to a consideration of the statute and relevant regulations. Although I initially questioned the decision, by the end of the book I had become convinced that one needs to understand the risk management theories in order to fully appreciate the Act.

In Part I, which includes only Chapter One, Walker and Broderick “elicit the broad themes by which to understand the nature of emergencies and risk as well as responsive strategies and operational plans” (p.3). What follows is a highly theoretical and multidisciplinary discussion of the increasing risk facing the world today as well as the attendant uncertainty about that risk. After exploring several conceptions of risk and the government’s role in relation to the concept, the authors conclude by arguing that, in modern society (at least industrialized societies), government’s role is that of [*123] risk manager instead of risk avoider. The rest of the book is, in many respects, the authors’ attempt to explain how the Act fits into this risk management function of modern government.

Part II turns from risk-theory to the Act’s details. In six chapters, the authors provide an intensely detailed description of the Act, including a discussion of the genesis of its various provisions as well as certain weaknesses in the statutory scheme. Chapter Two provides an overview of the state of emergency planning and preparedness legislation in the United Kingdom before the Act. It also sets out a high-level description of the various parts of the statute. As Walker and Broderick explain, the Act can be thought of as working in two aspects. Part I focuses on planning for emergencies. Part II provides a structure for responding to emergencies once they occur. The overview is particularly effective in preparing a reader for the detail work that is ahead.

Chapter Three’s focus is on one of the most important and also more controversial parts of the Act: what exactly is an “emergency.” This concept is central to both parts of the Act since each of them is keyed to planning for or responding to an “emergency.” The authors first explore the statutory definition. Thereafter, they preview some objections to the definition as applied in the statute, particularly in Part II concerning responses to an emergency that has taken place.

Chapter Four is a highly detailed analysis of Part I of the Act. This Chapter would certainly be useful for local officials charged with implementing the statute’s contingency planning. It would also be a treasure trove of information for policymakers considering whether to develop a contingency planning system in their own (non-United Kingdom) jurisdiction and what form such a system should take. For the rest of readers, however, I suspect that the Chapter will be skimmed more than read. This is not to say that the authors have written poorly or that the chapter should not have been included in the volume. Instead, my comment reflects the reality of the authors’ challenge to provide detailed analysis of the Act while also addressing broader issues of policy.

The balance of Part II, Chapters Five, Six and Seven, deals with the far more controversial provisions for dealing with emergencies once they occur. This issue, response to emergencies, is at the heart of many debates around the world today. In the United States, for example, one conjures up images of the Nation’s reaction to the September 11th attacks as well as the botched response to Hurricane Katrina. In the United Kingdom, the images are of bus bombings and massive livestock slaughter among other things. The point is that this section of the book speaks powerfully to contemporary fears.

Chapter Five explores the specific terms by which the Act empowers the government to make regulations in an emergency situation. As with the earlier chapter concerning contingency planning, this chapter is highly detailed. However, it seems more accessible than [*124] the earlier discussion. The authors also explore some of the shortcomings they perceive in the statutory approach. Specifically, while applauding the concept of considering the process for implementing policy in emergency conditions before an emergency exists, they express concern that the Act “has the potential to inflict terrible damage on the constitution of the United Kingdom” (p.214). Although the extent of such damage would likely be debated, Walker and Broderick very effectively bring to the fore the trade-off between security (or in the book’s arena, risk management) and liberty.

Chapters Six and Seven continue the discussion of the tension between security and liberty by exploring in greater depth the authors’ principal civil libertarian concerns. Chapter Six focuses on the Act’s potential implications on British constitutionalism, while Chapter Seven addresses human rights issues under United Kingdom and international law. As with the overview of these matters in Chapter Five, these chapters are particularly well-written and thought provoking.

The book concludes with Part III, “The Operationalization of Resilience,” which consists of two Chapters that seem to have little connection with one another. Chapter Eight provides a critique of the Act’s failure to include much direction concerning the specific role of the central government as compared to those of localities and regions. The chapter also offers a wealth of additional information concerning other relevant law that would fill the gaps the Act leaves as a result of its silence on the issue. As with some of the earlier chapters, the discussion here is highly detailed and likely to be of most use to those trying to navigate their way through the web of legislation that dictates the role of the United Kingdom central government in emergency planning and response.

Chapter Nine concludes with a brief comparison of the Act’s approach to contingency planning and response to that taken in New Zealand and the United States. I found this chapter to be one of the most interesting in the book. Gone is the intense detail. Instead, it is both an accessible summary of much that has come before as well as an articulate analysis of some of the interesting questions raised by comparing differing statutory responses of three quite different industrialized nations.

In sum, while there are portions of this book that are too detailed for many readers, overall it is worth reading for its excellent discussion of risk and the government’s response thereto. Walker’s and Broderick’s voices are an important contribution to the growing literature in the area.

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© Copyright 2007 by the author, Michael P. Allen.

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LEGALITY AND DEMOCRACY: CONTESTED AFFINITIES

by Stuart A. Scheingold (ed). London, UK and Burlington, VT: Ashgate Publishing, 2006. 716pp. Cloth $325.00/£165.00. ISBN: 075462580X.

Reviewed by Mark Kessler, Department of Politics, Bates College. Email: mkessler [at] bates.edu.

pp.118-121

In this volume, a contribution to Ashgate’s INTERNATIONAL LIBRARY OF ESSAYS IN LAW AND SOCIETY, Stuart Scheingold assembles and creatively interprets a diverse and interdisciplinary group of theoretical essays and empirical studies that address in various ways the relationship between law, courts, rights and democracy. The volume is comprised of eighteen previously published articles plus a new introduction by Scheingold. The previously published articles, written by legal philosophers, law professors, political scientists, and sociologists, are drawn from an impressive range of law reviews, edited collections, and sociolegal journals. They include seminal works as well as selections that are perhaps less well known.

Scheingold’s introduction is written as an intellectual history of research and writing in a broad area of legal studies that examines the “contested affinities,” as the subtitle of this volume refers to it, of “legality” and “democracy.” The introduction provides a provocative reading of the diverse scholarly works comprising the volume. Although key concepts employed frequently throughout the introductory essay, such as “legality,” “legal accountability,” and “rights,” on one hand, and “electoral accountability” and “democracy,” on the other, might have been defined more precisely and distinguished from one another more thoroughly and clearly, Scheingold’s essay intelligently frames the articles that follow in the context of their relationship to premises in “classical political and legal theory,” theory which serves to constitute liberal forms of democracy. From this view, “legality,” “legal accountability,” and “rights” provide protection against the potentially egalitarian outcomes produced by democratic participation and majority rule. In addition, this view is characterized by a conceptual separation of law and politics.

Socio-legal scholarship, in Scheingold’s interpretation, reacted to this set of premises, by challenging the classical view that law and politics are distinct and by calling for and studying cases where law and rights have been clearly politicized. According to Scheingold, this type of sociolegal research is closely associated with a conception of rights serving egalitarian objectives, and it supports and encourages democratic practices that are more in the form of social democracy than liberal democracy. A second wave of sociolegal research criticizes these premises and opposes the politicization of law and rights on a variety of grounds. A third body of research rescues legal politicization as an effective and democratic set of practices. Thus, Scheingold interprets the works included in this volume in terms of their [*119] sympathy toward either liberal or social forms of democracy and the extent to which they advocate or critique an explicit politics of rights.

The volume is divided into six sections. The first section, “Rights, Legality and Democracy,” includes one selection, an entry on rights written by Michael McCann and Scheingold for the INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES. Along with the introduction this entry assists in framing the articles that follow. Among other things, this essay shows how one formulation of rights, a negative form associated with classical versions of liberal democracy, suggests that rights are legitimately employed primarily to protect individuals from state infringements of such things as liberty, due process, and privacy. A second formulation of rights, associated with social democracy and embraced by some socio-legal research, suggests that rights may be employed positively by the state itself to promote economic and social equality in such areas as education, income, health care, and housing. In this formulation of rights, the classical separation of law and politics is explicitly opposed as rights are intentionally politicized and put to work to further redistributive projects.

To illustrate the view of classical versions of liberal democracy and some of the central questions debated among legal scholars within the classical canon, the next section “Classical Legality: Keeping Law Safe from Politics,” includes three articles that center on discussions between and among legal positivists and proponents of neo-natural law. A selection written by James C. Ketchen rehearses the debates between the legal positivist H.L.A. Hart and Lon Fuller, a proponent of neo-natural law. Lon Fuller’s seminal article “The Forms and Limits of Adjudication,” along with an article by Philip Selznick, “Sociology and Natural Law,” complete this section. Scheingold includes these articles in an effort to show the link between important strands of legal philosophy and “thin versions” of liberal democracy and to suggest that these theoretical formulations are not associated with egalitarian policy outcomes.

A third section, “Reconsidering the Classical Canon: Coping with Inequality,” reproduces sociolegal scholarship that challenged the premises of classical political and legal theories of liberal democracy. The seminal work of Marc Galanter on why the “haves” as “repeat players” come out ahead, and articles by Edgar and Jean Cahn on the legal services program of the War on Poverty, Michael McCann on “public interest liberalism,” and Scheingold on the politics of rights in the area of school desegregation illustrate how critical scholars exposed inequitable aspects of liberal democracy and moved toward a politicization of law and rights that could potentially produce redistributive outcomes more in line with versions of social democracy.

The section which follows, “The Case against ‘Adversarial Legalism’: Reaffirming the Classical Canon,” includes selections that criticize the politicization of rights and law along several dimensions. Alexander Bickel’s classic writing on “the passive virtues” [*120] places the criticism in the context of the role of courts in a democratic society and the countermajoritarian properties inherent in the exercise of judicial review. A selection by Donald Horowitz raises questions about the capacity of courts and judges to play a useful and effective role as policymakers. And, finally, Robert Kagan’s important critique of “adversarial legalism,” a trend in the United States toward legalistic modes of policy formulation and implementation that rely heavily on lawyers, courts, and judges, suggests that these practices produce distorted and misguided public policies and introduce severe tensions with democratic values and practices.

These criticisms of the politicization of rights and the intentional use of courts for purposes of egalitarian policy change are contrasted with research findings and arguments in articles reproduced in the next section, “In Defense of Politicization: ‘Adversarial Legalism’ Reconsidered.” Mark Graber’s article on “the passive-aggressive virtues” illustrates how judicial policymaking has a long history in the United States, beginning with major decisions of the Marshall Court. Abram Chayes writes about the legitimate role of the judge in public law litigation. In contrast to Horowitz, Chayes views the judge as quite capable of making coherent and effective public policy. Malcolm Feeley and Van Swearington show how lawyers, litigation, and courts produced prison reforms that were later validated by legislatures. Michael Paris and Douglas Reed, in separate empirical examinations, demonstrate how school finance litigation produced important redistributive results and how such results were actively supported in some cases by state legislative majorities. Thus, these works suggest that, at least in some areas, courts do indeed show the capacity to produce desired policy outcomes and that their decisions are sometimes arrived at with at least the tacit support of a majority of elected representatives. In Scheingold’s terms, this research “demonstrates that courts can intervene in the policy process in ways that are neither counterproductive nor countermajoritarian” (p.xxi).

A final section, “Legality, Equality and Democracy,” reproduces one article by David Nelken, a critical review of Robert Kagan’s arguments regarding “adversarial legalism.” Scheingold includes it because it broadens the debate by encouraging its readers to think about research on law’s relationship to democracy outside of the United States. There is, of course, a growing scholarly interest and literature on the comparative study of a closely related topic, the judicialization of politics, both in democratic and authoritarian societies (e.g., Tate and Vallinder 1995; Epp 1998; Shapiro and Sweet 2002; Moustafa 2003; Hirschl 2004; Ginsburg 2006). But this essay and this volume may well serve to stimulate more work along these lines.

In general, this volume brings together diverse scholarship from a variety of disciplines to raise fundamental questions for scholars interested in the role of law in democratic societies. Scheingold’s choice of articles to include in this volume, his imaginative interpretive essay, and the organization [*121] of the works included in the volume, demonstrate how sociolegal empirical scholarship has and should address broad issues derived from political and legal theory. As important, connecting different conceptions of rights to varying forms of democracy, liberal and social, helps to identify some of the ideological implications of claims made in sociolegal research on legal rights, their mobilization in courts, and their interpretation by judges.

This volume makes a useful contribution to studies of law, rights, and democratic practices. Together with other volumes in this series it helps to make sense of some important and diverse works on law and society published over the past fifty years or so and, as significant, suggests new scholarly directions. Ashgate and Austin Sarat, the series’ editor, deserve applause for making the volumes in this series available. If the publisher could find a way to make the volumes more affordable a standing ovation would be in order.

REFERENCES:
Epp, Charles R. 1998. THE RIGHTS REVOLUTION. Chicago: University of Chicago Press.

Ginsburg, Tom. 2006. JUDICIAL REVIEW IN NEW DEMOCRACIES. NY: Cambridge University Press.

Hirschl, Ran. 2004. TOWARD JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge: Harvard University Press.

Moustafa, Tamir. 2003. “Law versus the State: The Judicialization of Politics in Egypt. 28 LAW AND SOCIAL INQUIRY 883-930.

Shapiro, Martin, and Alec Stone Sweet. 2002. ON LAW, POLITICS AND JUDICIALIZATION. NY: Oxford University Press.

Tate, C. Neal, and Torbjorn Vallinder (eds). 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. NY: New York University Press.

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© Copyright 2007 by the author, Mark Kessler.

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RECONSTRUCTING THE COMMERCIAL REPUBLIC: CONSTITUTIONAL DESIGN AFTER MADISON

by Stephen L. Elkin. Chicago: University of Chicago Press, 2006. 416pp. Hardcover. $35.00. ISBN: 0226201341.

Reviewed by Beau Breslin, Department of Government, Skidmore College. Email: bbreslin [at] skidmore.edu.

pp.113-117

Chief among Stephen Elkin’s many scholarly virtues is courage. Practically since he emerged as one of the most prominent and interesting constitutional theorists of the present generation, the University of Maryland scholar has seemingly been consumed with asking the types of questions so many lesser academics are uncomfortable asking. When others are content to explore what constitutes a polity, for instance, Elkin is not satisfied with such a one-dimensional approach. For him, the central question is not what observations we can make about constitutional government or what institution is principally responsible for the interpretation of the constitutional text. Rather, he is focused on the deeper, and exponentially more controversial, questions: what constitutes a good polity? What changes are necessary for a just and flourishing political community to exist? How might we achieve the constitutional aspirations we constantly tell ourselves we embrace? Make no mistake, Elkin is perfectly capable of describing the structures and institutions that make up the American constitutional scheme – the one-dimensional stuff. Even still, his greatest contribution to the study of constitutional thought comes from his courageous, and often successful, attempts to explore the normative dimensions of political authority.

RECONSTRUCTING THE COMMERCIAL REPUBLIC is his latest act of courage. It is also his best work to date. Indeed, the volume represents Elkin’s most comprehensive analysis of the current state of America’s commercial republic, a republic, he laments, that is at best misfiring and at worst altogether broken. Elkin cites a number of reasons for believing that the American republic is malfunctioning; chief among them is the fact that current political practice in the United States seems to permit – encourage, even – the type of self-interest that so often conceals the more important public or collective interest. Of course, this is an all-too familiar charge. We have heard it before. Yet what makes Elkin’s work so distinct is that he believes the answer to our twenty-first century problems lies first in pursuing an altogether different line of inquiry. Let’s start at the beginning, he seems to be saying, and ask the right questions, ones that probe at the very heart of the American experiment in republican government. Consider his strategy, articulated very early in the book. He writes, “To make real progress in understanding the American political order, we need, if not a new political science, at least a reworked one where efforts at explanation and evaluation are tied to the question of good political regimes and how they may be secured and maintained” (p.3). How to do that? [*114] Construct new theories of political constitution, he says, or more accurately, theories of “republican political-economic constitution” (p.4), that in essence confront the foundational issues of modern constitutional design.

And that is precisely what Elkin does. It is a bit misleading to suggest that Elkin wrestles with various theories of political constitution; it is probably more accurate to say that he briefly spars with a few theories and then proceeds to construct a single, albeit richly textured, theory of his own. To be sure, the world he envisions is impressive in its complexity. The simple fact that Elkin sees the constitutional and political landscape as including critical social and commercial pillars, for example, renders his exploration of the American republic more elaborate than standard political science fare. Elkin tries to juggle political, constitutional, economic, historic, and social factors, all in an attempt to comment both on the development of the American polity to this point and its prospects for the future. A general overview of the book reveals that it is part analytical, part critical, part speculative, and, perhaps most noteworthy, part prescriptive.

Elkin is quick to credit the Founders – and particularly the principal architect of the American Constitution, James Madison – with constructing a political scheme that when first conceived had the potential to produce a reasonably just or good constitutional regime (a term carefully chosen by Elkin for its comprehensiveness). He is equally quick to insist that what they came up with has serious flaws, however, and fixing those problems is what should occupy our collective energies. For Elkin, the blueprint for a good constitutional polity was born in Madisonian thought, but it no longer resides exclusively there (the subtitle to the book accurately describes Elkin’s point: “Constitutional Design After Madison”). Instead, what the citizens of the American regime should do is remain faithful to the general principles of Madisonian constitutionalism while simultaneously reflecting on what ideas or schemes no longer deliver on the text’s original promises.

Elkin gets right to the point in Chapter 2, “The Madisonian Commercial Republic.” He begins by portraying Madison’s complex constitutional ideas in subtle and original ways. Madison was not enamored of any one particular constitutional idea, and thus those who insist that the American Founder was a proponent of one perspective are missing the nuances of Madison’s constitutional design. For example, Elkin informs us that Madison understood that a working polity would include tenets of both “civic republican thought” and “liberal political theory.” “The effort to join these two required that Madison think widely and deeply about the essential problems of popular self-government” (p.21). Moreover, the Virginian was not an unwavering defender of the propertied at the expense of lower classes. Indeed, the point is that much of Madison’s strategy was to find reasonable ways to combine divergent forces. His plan to manage faction or his plan to promote deliberation, Elkin says, are characteristic of Madison’s use of tension as an instrument of constitutional [*115] design. They both derive from Madison’s republican spirit, claims Elkin: Madison “was neither a pluralist in the modern sense nor an advocate of simple majority rule” (p.36).

Together, Elkin tells us, these forces amount to a pretty sophisticated constitutional design, one whose central theme is a steadfast commitment to the principle of “limited self-rule.” Still, there are flaws to Madison’s system, and Elkin tackles them in Chapter 3. According to Elkin, Madison’s constitutional vision has permitted the rise of certain interests (and certain classes of citizens) that lack “public-spiritedness.” Here, the author is not referring to those citizens who constantly pledge their allegiance to the republic or celebrate the Fourth of July with a little extra vigor. What we need, and what Madison’s design does not particularly foster, are citizens who are capable of significantly broadening their interests to account for public rather than private needs. As an example, Elkin notes that Madison’s constitutional design has not encouraged contemporary business leaders “to formulate their interests in a manner attractive to the mass of citizens” (p.62). Consequently, the relationship between business and the state – a relationship that Elkin believes is critical to the realization of a just political order – is carried on with low (or no) public visibility. Elkin provides other illustrations to reinforce the point that the Madisonian system is imperfect.

Leaving the focused discussion of Madison behind, Elkin then sets out to construct his own vision for a more just political regime. It all centers on the reconceptualization of institutional practices to help maximize awareness of the public interest. In Chapter 4 he efficiently picks apart the theoretical scaffolding of several alternative constitutional and political visions that he insists will not deliver a good polity for the United States, including ones that rely on legal formalism and the simple aggregation of majoritarian interests. In Chapter 5, he describes the importance of capturing the public interest for a thriving commercial republic, while in Chapters 6 and 7 he sketches the “features of a constitutional politics” that will serve that public interest (p.148). In Chapter 8 he wrestles with the issue of social class and self-interest, insisting that a good polity will broaden the interests of the upper class while expanding the role of the middle class in expressing the all important public good. These chapters build nicely upon each other, culminating in a fascinating glimpse of what America’s constitutional regime could be. They are then capped by a concluding chapter in which Elkin identifies the various prescriptions needed to usher in the type of commercial republic he envisions.

To this point I have purposefully avoided any obvious criticism because I want to project the impression that Elkin’s volume deserves a central place in any library on constitutional thought. It does, but that is not to say the book is without flaws. In fact, a fair critique of RECONSTRUCTING THE COMMERCIAL REPUBLIC will likely resemble Elkin’s overall critique of Madison’s constitutional framework: like Madison’s design, this book is a [*116] sophisticated and impressive piece of work, but it is not unblemished. Elkin’s occasional repetitiveness, for example, surprised me. Another observation (not a flaw per se) is that the author’s normative voice is, at times, strikingly similar to the voices of others. When he describes the role of government institutions in the interpretation of the text – including the peculiar notion of judicial supremacy – he sounds a lot like George Thomas, whose understanding of the American constitutional design would admit that no institution is paramount in the interpretation and promotion of constitutional governance. Later, when he defends a political system that fosters a robust attachment to deliberation in action (both among citizens and in the institutions of government), Benjamin Barber’s work comes to mind. In Chapter 7, Elkin argues for a commercial republic that rests on participation at the local level. Although he goes so far as to disavow any ties to communitarianism, he sounds a good deal like the localist strain of that philosophical tradition. Finally, the overall tone of the normative approach smacks of William F. Harris’ plea that a proper citizenry ought constantly to reflect, and ultimately ratify, its evolving constitutional order.

A more substantive curiosity surfaces in Chapter 9. This portion of the book represents Elkin’s attempt to remind the reader of the practical reality of contemporary constitutional government. Too often, he says, the most popular theories attempting to describe constitutional systems (theories like Rawls’) fail because they “evade or – more dramatically – escape from politics” (p.251). They do not confront political realities on the ground. For Elkin, “constitutional theory is a theory of constitutional politics” (p.252; emphasis added). I think most would agree; after all, it can be inferred that it was the indeterminacy of politics that has so deeply influenced – both for the better and the worse – America’s constitutional development to this historical moment. In a way, by suggesting that we take politics seriously, Elkin is acknowledging that any plan to establish the good polity is subject to derailment. The obvious question, therefore, is why should we take his strategy too seriously? If any reordered system is subject to political forces that cannot yet be seen, it seems at least possible that even the very best design has the potential to fail. As Benjamin Franklin said in his famous final speech before the delegates to the Constitutional Convention, “For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” We could ask the same question of Elkin’s imaginary polity.

These concerns are quite minor when compared to the magisterial quality of Elkin’s overall constitutional exploration. The principal achievement of this book lies in his mostly successful attempt to scrutinize the American constitutional landscape from so many different angles, and then to offer one possibility for that regime to flourish. Whether that imagined polity might [*117] come to fruition matters little: indeed, the soul of Elkin’s curiosity is not only what is but also what could and ought to be. In a sense, then, Elkin is the intellectual equivalent of a constitutional founder: the practice of imagining better worlds is what sustains him. In his words, “We are not in the midst of founding a new regime, although we may be in the midst of refounding it” (p.211). If that is so, RECONSTRUCTING THE COMMERCIAL REPUBLIC should prove an invaluable resource.

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© Copyright 2007 by the author, Beau Breslin.

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THE SENSE OF JUSTICE: EMPATHY IN LAW AND PUNISHMENT

by Markus Dirk Dubber. New York: New York University Press, 2006. 224pp. Cloth. $40.00. ISBN: 0814719732.

Reviewed by Debra S. Emmelman, Department of Sociology, Southern Connecticut State University. Email: emmelmand1 [at] southernct.edu.

pp.109-112

What is the “sense of Justice”? What is it not? How has the concept, correctly or incorrectly, been invoked in American Law? What is its specific nature or form? And what role does the sense of justice play in American penal law? These are the questions that Markus Dirk Dubber addresses in his book, THE SENSE OF JUSTICE: EMPATHY IN LAW AND PUNISHMENT.

According to Dubber, the sense of justice is not vengeance. Nor is it benevolence. For that matter, the concepts of “procedural justice,” “distributive justice,” or even “just deserts” appear to have little or no place, at least not in this particular exposition. Instead, the sense of justice is defined as a sentiment, or perhaps better stated, a sensibility about, consciousness of, or empathy with our fellow human beings as human beings equal to ourselves. Moreover, and quite possibly most importantly, it is the capacity to assess whether one person has treated another as an equal as well. It is, in other words, a specific moral form of empathic role-taking.

It should be stated from the onset that this is a very difficult book to summarize. There are far too many interesting aspects, nuances, and ideas to review them all here more than just superficially. Consequently, I am compelled to examine only some of what I perceive to be the key ideas and the most important and interesting discussions in the book. Nevertheless, this volume deserves careful examination. Anyone who values justice is bound to find something in it with which they can relate, and undoubtedly something they will find useful in their own investigations.

Professor Dubber begins his inquiry by first describing the diverse ways in which the concept has been used and abused in American Law. He then takes a largely historical look at previous attempts to account for this idea in American legal discourse. These first two chapters are relatively detailed and clearly relevant to his purpose. However, the remaining chapters take wide ranging excursions into diverse theoretical traditions and constructs which I believe may make the subsequent discussion more engaging to a broader audience of legal scholars, including sociologists, anthropologists, psychologists, and political scientists.

In chapter three, Dubber describes some of the many misconceptions of the sense of justice. These misapprehensions are said to include the ideas that it is a type of moral code or set of ethics, that it is found throughout substantive instances of law (rather than being an abstract and formal attitude), that it is reflexive or instinctual (rather than reflective or [*110] learned), that it is communal (rather than individual), and that it is accessible only to some individuals (rather than a universal capability). On first flush, these latter three misunderstandings may seem to constitute a bit of a paradox: how can one argue that something is learned but not communal and yet universal? Professor Dubber explains this by asserting (not in this order) that the “community” is represented in the sense of justice insofar as people are social creatures who must interrelate with each other, that such capacities are developed through psycho-social processes that may or may not ever fully mature, and that as human beings, we all have the ability to achieve this sensibility. In fact, he maintains in several places throughout the book that this moral capacity distinguishes human beings from the rest of the animal kingdom.

How and why the sense of justice emerges and the more precise form that it takes is elaborated upon more fully in chapter four, wherein Dubber draws on work from moral psychology (including works primarily from the Scottish and German Enlightenments), social psychology (including George Herbert Mead, Gabriel Tarde, Sigmund Freud and others), political theory (primarily John Rawls and Jurgen Habermas), and linguistics (including Jean Piaget, Lawrence Kohlberg, Noam Chomsky and a few others). What I found most intriguing here is how he interweaves these theories in a manner that suggests how diverse systems of human social life converge, and can converge, into the “sense of justice,” again, a uniquely human accomplishment that is the equivalent of achieving moral competence.

In chapter five, Dubber examines the sense of justice in American Penal Law. He organizes his discussion around three aspects of this law. These are its definition (substantive law), which deals with the “why” and “what” of punishment, and the imposition (procedural law) and infliction (penal law) of punishment, which deal with the “who” and “how” of punishment.

Regarding the first, Dubber finds that none of the rationales for punishment reflect the sense of justice because they do not encourage identification with the offender and do not presuppose that the offender herself possesses a sense of justice. In essence, they do not promote empathy with the offender as an equal, “reasonable” or “moral” human being. Similarly, the legality principle sets formal constraints on the state’s exercise of its power to punish, and in doing so, is concerned with limiting the influence of vague references to the sense of justice. It is in assessing criminal liability that the sense of justice appears to have the greatest role: judges and jurors assess liability not simply by placing themselves in the offender’s situation but by presupposing that the offender herself possesses a sense of justice in that situation. The question then becomes (in essence) “Would I have behaved similarly in this situation?” or “Would a reasonable or moral person have behaved the same?” If so, the offender is deemed not liable. Otherwise, if not incapacitated in some sense, the offender is considered liable. A notable exception to the sense of [*111] justice maintained in assessments of criminal liability, however, is when the offender is deemed to possess a “depraved indifference,” in which case the offender’s personhood is once again denied.

Dubber finds that assuming the standpoint of justice becomes increasingly remote as one moves from the definition of norms to their imposition and the infliction of sanctions. “With each step the object of judgment is in greater danger of being denied the status of equal person and thus of being removed from the community of justice” (p.137). Regarding criminal procedure, the sense of justice is most closely associated with the jury, which is expected to empathize with both the defendant and the victim, and to assess their conflicting justice claims. Ironically, as occurs in cases of jury nullification, the jury is sometimes blatantly instructed not to empathize with the defendant but instead simply to follow the law. Additionally, Dubber reminds us that less than 10% of criminal cases are brought before a jury and that the legitimacy of the American criminal process is thereby threatened by judges and prosecutors who see no need, themselves, to draw on the sense of justice.

Dubber argues that perhaps no aspect of the penal law lies further outside the sense of justice than the execution of punishment. He finds that, despite 18th century reformers’ calls for greater sympathy and compassion for piteous prisoners, this was a religious rather than a political or legal appeal, and that it waned as soon as prisons were emptied of debtors, who were apparently more sympathetic to middle-class persons than other types of prisoners. Such lack of empathy continues today as increasing numbers of alleged offenders fill our prisons under the auspices of the “War on Crime.”

So here we have it: the sense of justice, a moral form of empathic role-taking that sets us apart from other animals, is apparently available to all but the most mentally debilitated human beings. Yet we find that this sensibility is sorely lacking in the very institution we would most expect to possess it, our criminal justice system.

Dubber provides a thought-provoking analysis of the sense of justice. What I find lacking most in the analysis, however, is a clear explication of the relationship between this social psychological sense and the larger social order. How, for example, has the sense of justice been expressed or suppressed at different times and in different places? And given its general paucity in contemporary society, how might we propagate it? Nevertheless, one cannot expect Dubber to solve all the world’s problems in one small book. Yet it certainly provides a beginning for what could be enlightening investigations into justice.

Dubber’s book is clearly suitable for courses devoted to the study of justice. However, as suggested earlier, it is not an easy read. To digest it fully, one needs to revisit the text on occasions and wrestle with a number of issues. This is an advanced book for advanced undergraduate and graduate students [*112] who can apply serious analytical skills to the material, and which could inspire some scholarly investigations of the subject. I would not recommend it for an undergraduate course in which the students expected an easy read or did not expect to expend considerable effort to understand the material.

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© Copyright 2007 by the author, Debra S. Emmelman.

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TOXIC TORTS: SCIENCE, LAW, AND THE POSSIBILITY OF JUSTICE

by Carl F. Cranor. New York and Cambridge: Cambridge University Press, 2006. 414pp. Hardback. $99.00/£55.00. ISBN: 0521861829. ebook format. $79.00. ISBN: 9780511243271.

Reviewed by Andrew T. Hayashi, Department of Economics and Boalt Hall School of Law, University of California, Berkeley. Email: ahayashi[at]econ.berkeley.edu.

pp.104-108

TOXIC TORTS by Carl Cranor takes a remarkably broad look at the relationship between science and the law. The book’s central argument is that three recent Supreme Court decisions, which attempted to guide lower courts in utilizing the Federal Rules of Evidence to make decisions on the admissibility of scientific opinion testimony, have made it more difficult for plaintiffs to meet their evidentiary burden. Although the admissibility rules were supposed to be fairly liberal, the effect of the Court’s rulings has been to deny plaintiffs the use of essential expert testimony, a problem compounded by the deference shown to admissibility decisions by granting them heightened abuse of discretion review. The net result of this increased burden has been to limit the ability of the tort system to function as a deterrent to negligent conduct and as an arbiter of justice.

Plaintiffs in a chemical torts action must be able to demonstrate that the substance which is alleged to have caused their injury is both capable of causing their harm (general causation) and that it did, in fact, cause their harm (specific causation). Scientific testimony is necessary for the plaintiff to establish general causation. The Supreme Court’s rulings in DAUBERT, JOINER, and KUMHO TIRE require judges to assess whether the reasoning and methodology underpinning an expert’s testimony is scientifically valid. This is a tall order for judges without scientific training and who, Cranor argues, have responded by demanding more evidence, and of a more restricted kind, than they ought. Cranor argues that the new standard has particularly dire consequences in the area of toxic torts because the regulatory mechanisms designed to ensure the safety of chemicals introduced to the public are inadequate, firms have incentives to avoid conducting research on the toxicological properties of their products, and toxicological evidence is, in any event, sparse. Indeed, this sparseness is one of the more alarming facts motivating Cranor’s thesis: of the 3000 chemical substances produced in the highest volume, there were substantial gaps in our knowledge of the toxicity properties of 75% as recently as 1998 (p.12).

TOXIC TORTS is clearly written and well-organized. Each chapter is broken into numerous short sections; this allows Cranor to put the reader on notice when a new subtopic is being addressed or a short detour is being taken, but it fragments the argument somewhat. He writes to a wide audience, and legal scholars, practitioners, and interested scientists will all find something of interest. Cranor makes a compelling case that the practical limitations on [*105] collecting toxicity data warrant a more nuanced, sophisticated, and permissive standard for the admission of expert testimony in toxic torts cases. Judges simply cannot expect voluminous, flawless, evidence on the toxicological properties of the chemicals that they encounter in litigation. Cranor argues convincingly that “courts must learn to review a wider range of evidence with greater sensitivity and sophistication than many have to date in order to serve law, science, and justice much better” (p.29).

Chapter 1 sets the stage by vividly illustrating the importance of admissibility standards by recounting five torts suits, all of which highlight the fact that excluding scientific evidence may deny justice to worthy plaintiffs. In Chapter 2, Cranor provides an outline of a torts action. This chapter does an effective job of making the later discussion accessible to non-lawyers; however, Cranor leaves unexamined issues related to the relative competencies of judge and jury and the justification for admissibility review in the first place. There is a brief discussion in Chapter 3, but the inquiry focuses largely on the possibility that admissibility review infringes on the constitutional right to a jury trial, and Cranor mentions only in passing a social science literature which shows that juries have the ability to evaluate scientific evidence. At the preliminary hearing where admissibility decisions are made, the judge conducts a reliability review, which aims to ensure that the testimony is not too likely “to lead the factfinder to an erroneous conclusion” (p.287). Non-lawyers are bound to wonder whether judges are in any better position to evaluate scientific testimony than the jury and why expert testimony should be excluded rather than probed by opposing counsel during cross-examination.

Chapter 5 contains what may be some of the most important content in the book. It reveals that many toxins have features which limit the ability of scientists to detect the risks they pose in a timely and accurate manner. For instance, many toxins have long latency periods, do not generate signature effects which make it possible to rule out alternative causes, and operate through mechanisms which are hard to understand or difficult to uncover. These features contribute to the paucity of evidence on their toxicity. In light of the pragmatic barriers to the discovery of harmful effects emanating from these substances, courts ought to be liberal in their admissibility reviews and avoid excluding expert testimony on the grounds that it is not based on ideal evidence. This sort of review is not, however, typically done.

Chapter 6 draws attention to some of the peculiar practices which courts have adopted to try to separate well-supported testimony from groundless opinion. Courts have seized upon several rules-of-thumb for deciding what qualifies as good evidence, often arriving at different conclusions than scientists themselves about whether the evidence warrants a causal inference. In particular, courts fail to consider the evidence for toxicity as an integrated whole. Instead, they evaluate each piece of evidence individually, excluding it if does not meet a threshold such as statistical [*106] significance or doubling the risk of harm.

Chapters 7 and 8 offer suggestions about how the current test for admissibility might be improved. Cranor suggests that courts examine the patterns of reasoning used by scientific committees to determine whether the evidence warrants the claims made by expert witnesses. Ultimately, courts should only ask whether the opinion offered falls within the boundaries of acceptable scientific disagreement.

The overarching theme of TOXIC TORTS is that courts fail to take proper account of the various kinds of evidence which scientists routinely rely on to make causal inferences, so the remainder of this review is devoted to Cranor’s analysis of two kinds of evidence.

Chapter 4 discusses scientific inference and the types of evidence that form the basis of causal arguments: clinical trials, epidemiological studies, animal studies, and case studies. An appraisal of each type of study can be usefully guided by the concepts of internal and external validity. The empirical and experimental economics literature uses the term internal validity to describe the conditions under which the design of a particular study admits a causal interpretation of the statistical results, and the term external validity to describe the plausibility of extrapolating a study’s findings to new contexts. Cranor essentially argues that courts are uncritical of the external validity of epidemiological studies, which often include only healthy male workers, while being unduly suspicious of the external validity of animal and case studies.

Courts have demonstrated a tendency to view epidemiological evidence as the only reliable foundation for causal claims about the harmful effects of substances on human health and have discounted other types of evidence. This is a very unusual position for courts to take, because epidemiological studies struggle with omitted variable biases, and randomized clinical trials are typically thought of as the gold standard for causal inference (clinical trials receive very light treatment in this book). Furthermore, in the absence of randomized trials, scientists themselves consider other evidence when drawing conclusions about the causal efficacy of a substance.

In addition to the external validity concern, epidemiological studies are typically afflicted by questions about their internal validity, i.e. whether the measured relationship between treatment and outcome represent the effect of the treatment or some omitted variable correlated with both. Cranor identifies several further concerns, such as the fact that studies which do not follow subjects for a sufficient period of time after exposure may not detect negative effects if the substance has a long latency period. On the other hand, long studies may also underestimate risks created by substances if they do not properly account for the non-random exit of participants (e.g., death). Epidemiological studies are useful, but courts should not require them as a basis for expert testimony on general causation and should be wary of the [*107] results that they provide. On these points, Cranor is quite right.

On the other hand, Cranor presents an optimistic view of the value of case studies in making causal inferences, something he does because he believes courts currently assign them too little weight in admissibility decisions. However, the same features of toxic substances which make them hard to research generally make case studies especially unhelpful. Cranor suggests that case studies work best when the time interval between treatment and observed effect is short. However, many carcinogens and toxic substances have long latency periods and so case studies are unlikely to reveal much about their effects. More importantly, the most compelling case studies Cranor describes are those in which the biological relationship between cause and effect are already understood. The case study cannot establish causation on its own. For instance, Cranor cites a study which rules out aspirin as a cause of renal dysfunction precisely because the effect followed too closely after taking the drug, implying an implausibly short latency period (p.121). Elsewhere, Cranor cites approvingly a study which found that a patient contracted Guillain-Barre Syndrome (GBS) on three separate occasions after receiving the tetanus vaccine. The patient contracted GBS 21, 14 and 10 days after receiving the vaccine, “time periods well within biological plausibility” (p.119). In these and other cases it is an understanding of the biological mechanism which allows researchers to relate observed effects back to putative causes, and, for many substances, knowledge of these mechanisms is a long time coming.

Cranor also claims that “a good case study rules out alternative explanations of the events” (p.123). This, of course, is a feature of any good study; however, while ruling out alternative explanations makes it more likely that the remaining putative cause is the right one, it is impossible to use this ‘ruling out’ method conclusively unless the universe of potential causes is known beforehand. Finally, the question of external validity is especially acute for case studies. A case study performed on someone who is especially vulnerable to negative effects of a drug cannot be reliably extrapolated to the larger population without some knowledge of how that person’s vulnerability affected the drug’s efficacy.

Of course, this is not a book about clinical trials. Cranor wants courts to better understand the strengths and weaknesses of each type of evidence, and where he presents a somewhat one-sided view, it is only because he is responding to undue skepticism or naïveté on the part of the courts. His emphasis on the value of evidence not utilized by courts, and the weaknesses of evidence privileged by courts, is not a shortcoming of the book.

TOXIC TORTS is an excellent book, filled with keen observations about the science/law interaction, the epistemic structure of scientific inquiry, the norms and conventions which regulate the community of researchers, and the special difficulties faced by the torts [*108] system in obtaining justice and deterring malfeasance in toxic tort cases.

CASE REFERENCES:
DAUBERT v. MERRELL DOW PHARM., INC, 509 U.S. 579 (1993).

GENERAL ELEC. CO. v. JOINER, 522 U.S. 136 (1997).

KUMHO TIRE CO. v CARMICHAEL, 526 U.S. 137 (1999).

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© Copyright 2007 by the author, Andrew T. Hayashi.

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DYNAMICS OF FOREIGN POLICY AND LAW: A STUDY OF INDO-NEPAL RELATIONS

by Surya P. Subedi. New Delhi and Oxford: Oxford University Press, 2005. 290pp. Rs.595/£29.99/$35.00. ISBN: 0195672011.

Reviewed by Alison Greenwald, LLM. Washington, DC, USA. Email: greenwld [at] gmail.com.

pp.101-103

Sources of International Law include legal texts (treaties, conventions and judgments), custom and general principles of law, according to RESTATEMENT (THIRD) §102. In DYNAMICS OF FOREIGN POLICY AND LAW: A STUDY OF INDO-NEPAL RELATIONS, Surya P. Subedi attempts to determine the legitimacy of current legal obligations between the nations of India and Nepal. Subedi provides a comprehensive overview of the legal relations between the two States, as well as any applicable international legal obligations, however she fails to further her claims of legality by omitting the necessary theoretical background necessary for such an investigation.

Subedi opens the discourse with an historical perspective analysis on the diplomatic relations between India and Nepal. Fundamentally, Subedi’s underlying assumption regarding the topic is that India has always pursued an expansionist policy towards its geographically-disadvantaged neighbor. However, an important point to note is that unlike India, Nepal was never under British control; thus it has a long history of independence, despite its geographic shortcomings. Using this historical narrative, Subedi explains the political developments surrounding the conclusion of various treaties between India and Nepal. By using this historical overview, she aims to show that the treaties were concluded mostly under political duress and to the detriment of Nepal. One of these examples involves the 1950 Treaty of Peace and Friendship, which was concluded by Prime Minister Mohan Shumsher, shortly before the end of his oligarchical regime. By showing that these treaties were concluded under undesirable terms, Subedi argues that this should be reason for an inquiry as to the validity of the treaties for being ‘unfairly’ wrought.

Putting aside any political bias the author may have, DYNAMICS OF FOREIGN POLICY AND LAW is an excellent resource for purposes of a practical overview of the international legal regime regarding landlocked States. The plight that many landlocked States face (42 out of 187 countries) go beyond that of mere access to water, but affect factors such as national security, economic health and national sovereignty. Subedi provides an explanation as to difficulties landlocked States confront, in addition to the international legal regime leading to the United Nations Treaty on the Law of the Sea. The Third United Nations Conference on the Law of the Sea (UNCLOS III) was particularly generous to landlocked States with regard to freedom of the high seas and the common heritage through the territory of transit of States by all means of transport [*102] (1982 UN Convention on the Law of the Sea Article 125). Subedi notes the importance of this development from the 1921 Barcelona Statute on Freedom of Transit as omitting the previous requirement under the Barcelona Statute of reciprocity.

On the whole, UNCLOS III was a success for landlocked States. Although much was gained on the side of landlocked States by this convention, many issues remained unresolved. One important issue is the use of the coastal state’s 200-mile exclusive economic zone (EEZ). UNCLOS III Article 69(1) provides for the landlocked State’s “exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region.” Clearly, this ambiguous language could pose problems for landlocked States which may have difficult relations with neighboring transit States on deciphering the definition of an ‘appropriate part of the surplus.’ With so much ambiguity on the part of the treaty on this matter, much room is left to interpretation.

Although landlocked States may not have experienced a diplomatic victory in terms of fishing rights in UNCLOS III, they did gain unfettered access to mineral resources of the deep sea bed (open to all States) through the International Seabed Authority. While UNCLOS III does legitimately attempt to alleviate the geographical disadvantage of landlocked States, it remains as merely a starting point for further development.

Subedi also explores the role of other UN bodies in their attempt to assist landlocked States, focusing on efforts made by UNCTAD (United Nations Committee on Trade and Development) and the UN General Assembly. Despite the altruistic aims of these international bodies, the fact remains that landlocked States are mainly left to the mercy of their sea-blocking neighbors for such access.

Using the international legal framework explained by Subedi concerning landlocked States, she provides a practical explanation for the issues surrounding Nepal and its neighbor India. By using the issues surrounding landlocked States in this convention, Subedi assesses how Nepal fares with regard to the EEZ of India, as well as the issue of transit agreements. These explanations and examples provide an excellent practical understanding of the implementation of the treaty as well as where the treaty does not fully protect the rights and interests of landlocked States. All in all, this explanation is an important tool for any international law student aiming to further study maritime law and its practical application.

While the merits of the book regarding its use for students concerning the international legal regime surrounding the issue of landlocked states is not to be undermined, one must return to the original question on the sources of international law. As a professor in International Law, Subedi should consider the sources of International Law, which have been listed in various cases as well as being enshrined in Article 38 of the Statute of the International Court of Justice. Namely, what seems to be lacking in the analysis [*103] of law and practice is an explanation and examination of custom and the role of opinio juris. While this legal concept is not omitted from the book, its application in the practical explanation is. Thus, in support of the historical overview in bilateral treaties between Nepal and India, it would have been more efficacious (from an international legal perspective) to examine the custom and opinio juris of the States instead of merely describing the relations and environments in which the treaties were concluded. Such an analysis would be useful and add texture to Subedi’s conclusion that there is a lack in legitimacy in the bilateral treaties because they are thought to be ‘unfair.’

The Law of the Sea is an instrumental part of the international legal scholar’s syllabus. By focusing on the practical example of foreign relations between India and Nepal, Subedi has taken a somewhat confusing treaty regime and elucidated certain aspects of the regime in a highly effective manner. Thus, the explanation, review and practical application of law concerning landlocked states stands as this book’s main strength. However, as regards the merit of analysis of the relations between India and Nepal, the potential efficaciousness of her concluding list of steps necessary to balance the relations between the two States is clouded by her underlying bias. In essence, had Subedi left the political dogma aside, the value of the exposition would have been much more level and successful.

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© Copyright 2007 by the author, Alison Greenwald.

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THE POLITICAL THOUGHT OF JUSTICE ANTONIN SCALIA: A HAMILTONIAN ON THE SUPREME COURT

by James B. Staab. Lanham, MD: Rowman & Littlefield Publishers, Inc., 2006. 416pp. Cloth $85.00. ISBN 0742543102. Paper $34.95. 0742543110.

Reviewed by Artemus Ward, Northern Illinois University. Email: aeward [at] niu.edu.

pp.96-100

Semester after semester, no single justice gets my students’ blood boiling more than Justice Antonin Scalia. Love him or hate him, Nino – as he is known to his friends and colleagues – always engenders a reaction whether it is for his punchy prose, intellectual acumen, or combative style. Even within the Court, where his memos are often referred to as “Ninograms” (See e.g. Sarah H. Cleveland to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 633), Scalia’s gifts are readily apparent to those who work with him. For example, the papers of Justice Harry Blackmun reveal that when Scalia tried his hand at a majority opinion in the voting rights case, HOLDER v. HALL (1994), Justice Ginsburg wrote him, “In strength and style, just what I expected, but I join John in awaiting Harry’s dissent” (Ruth Bader Ginsburg to Antonin Scalia, November 15, 1993, BLACKMUN PAPERS, Box 631). In the same case, Blackmun clerk Ann Hubbard advised her boss: “I would like to see you take the lead in pulling the rug out from under Justice Scalia’s duplicitous, pernicious opinion” (Ann Hubbard to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 632). Ultimately Scalia was unable to garner a Court and never did issue an opinion in HOLDER. Is there something about Scalia’s personality, jurisprudence, or both that makes compromise difficult if not impossible for him? James B. Staab’s new book helps us find the answer.

In general, Scalia is most closely identified with a formal textualist and originalist jurisprudence. He argues that the plain meaning and the original understanding of the Constitution or statute in question should guide judges in making decisions. He uses history and tradition to determine original meaning. He is critical of his colleagues who espouse the idea of a living Constitution, in which the document’s broad principles are to be reinterpreted as society evolves. Scalia sees the living Constitution theory in conspiratorial terms. He rails against those who use it, seeing the theory as a smokescreen for judicial activism with judges illegitimately enacting their preferred policies in the name of the Constitution. Scalia points to the formal amendment process as the only legitimate way to change the document. Given Scalia’s stated penchant for these controversial positions, it is not surprising that scholars have chosen to study his behavior and opinions systematically to see if he practices what he preaches.

In the 200-year-history of the Supreme Court, no sitting justice has been the subject of such an extensive scholarly literature, as has Scalia. Through countless articles and numerous book-length treatments a contentious [*97] sub-literature has formed that attempts to explain his jurisprudence and effect on the law. Christopher E. Smith’s JUSTICE ANTONIN SCALIA AND THE SUPREME COURT'S CONSERVATIVE MOMENT (1994) argues that Scalia failed to lead the judicial counterrevolution that wasn’t because he sometimes reached liberal results and alienated his conservative allies along the way through his polarizing behavior. David Schultz and Christopher E. Smith’s THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA (1997) contends that Scalia’s jurisprudence is inconsistent as he employs an outcome-oriented mode in matters he is passionate about and uses a more traditional jurisprudential approach in other areas. Richard A. Brisbin, Jr.’s JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL (1998) argues that the justice’s behavior reflects contemporary political conservatism. Ralph Rossum’s ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION (2006) seeks to rescue Scalia from the critiques leveled by others by placing the justice back in the textualist and originalist frameworks. It is into this breach that Staab puts forth his unique argument.

What immediately sets Staab’s treatment apart from the rest is his analytical framework: comparing Scalia’s philosophy with Alexander Hamilton. With the recent publication of the excellent biography, ALEXANDER HAMILTON (2004) by award-winning author Ron Chernow, Hamilton may be in the minds of scholars and in the public eye in a way that has not happened for some time. When I think of Hamilton, I immediately identify him with the polarizing debate over federalism that has in many ways defined the United States throughout its two-hundred-year history. Hamilton is generally associated with the cooperative-federalist, or nationalist, view of the Constitution and nation. One only need reference the opposing views of Secretary of the Treasury Hamilton and Secretary of State Thomas Jefferson over the creation of a national bank to see how Americans differ on the issue of federalism. Hamilton’s expansive reading of the Constitution was ultimately adopted by President George Washington and sustained by Chief Justice John Marshall and the Supreme Court in MCCULLOUGH v. MARYLAND (1811). Translating the founding debate between nationalism and states’ rights to the current Supreme Court is no easy task, but most court-watchers would intuitively place the Court’s conservatives – and particularly Justice Scalia – in the Jeffersonian, states’ rights, dual federalism camp. Given Scalia’s seeming alignment with dual federalism, one can only be intrigued by a book that describes Scalia as a Hamiltonian. How can this be?

In Chapter One, Staab begins by discussing the six major schools of conservative jurisprudence and their contemporary adherents. He argues that Scalia’s political philosophy is classical liberalism in the tradition of Thomas Hobbes, David Hume, John Locke, Charles de Secondat Montesquieu, and Niccolo Machiavelli. Staab then explains that what makes Scalia Hamiltonian is that, in contrast to modern libertarians, [*98] Scalia has a favorable view of governmental power. Staab draws on numerous speeches where Scalia espouses federal power and even invokes Hamilton. According to Staab, Hamilton’s political principles consisted of a formalistic view of separation of powers, an energetic executive, a political conception of public administration, a strong and independent federal judiciary, and a political process approach toward federalism. In the substantive chapters, Staab demonstrates how these Hamiltonian political principles are reflected in Scalia’s jurisprudence.

Chapter Two focuses on legal standing, and Chapter Three covers separation of powers – namely disputes between Congress and the president. In both, Staab argues that Hamilton and Scalia have a formalistic interpretation of separation of powers that protects both executive and judicial power. Staab notes that Scalia has been particularly willing to strike down federal legislation that would encroach on executive authority. In Chapter Four the author discusses how both Hamilton and Scalia take strong pro-executive authority positions, including the inherent power of the presidency particularly in the area of foreign affairs. Chapter Five argues that both have defended a theory of public administration based on the concepts of unity, discretion, and policy making.

Chapter Six argues that both Hamilton and Scalia view the judiciary as having a limited role in a democratic form of government. That said, the author does admit that “Scalia has not been reluctant to strike down federal or state laws that he believes conflict with the text or structure of the Constitution” (p. xxvi). It is plain that Scalia’s deference is very different from the judicial restraint practiced by Justice Felix Frankfurter (see e.g. Keck 2004). Chapter Seven discusses how both Hamilton and Scalia believe that the role of a judge is to interpret text and not make policy: textualism acts as a constraint on judging. While some readers may not be persuaded by the author’s arguments in this chapter that Hamilton would not be a supporter of the living constitution theory and would be against the substantive due process of LOCHNER v. NEW YORK (1905) and ROE v. WADE (1973), the section is certainly thought-provoking.

Chapters Eight and Nine delve into the murky waters of federalism. The author recognizes Hamilton’s expansive nationalist position and argues that Scalia has also taken a nationalist stance toward federalism disputes – though for conservative purposes. For example, Staab notes that Scalia ranks first among the justices in voting for the federal government in preemption cases and points out that Scalia’s Hamiltonianism accounts for his nationalist vote in the medical marijuana case, GONZALES v. RAICH (2005). Still, Staab argues that over time Scalia has moderated his federalism position and now resembles Madison more than Hamilton. This change, Staab suggests, allows Scalia to vote with his states’ rights colleagues for conservative ends. In essence, Scalia can have it both ways. [*99]

In the Conclusion, Staab explains that both Hamilton and Scalia are similar in temperament as well as political vision. Both have intellectual and literary gifts and a high sense of character, in addition to being bold, decisive leaders for conservative goals. Hamilton’s governmental and financial ideas were put in place to stabilize and bolster the new nation, while Scalia has called for overturning more Supreme Court precedents than nearly every other justice and has advocated a rule-based jurisprudence to check judicial discretion. Staab calls Scalia the Court’s “counterrevolutionary” because he seeks to return the law to the pre-Warren-Court days of original principles (p. 324). And though Staab argues that both are conservative, the reader cannot help but think that a strong argument could be made that Hamilton has more in common with the nationalist modern liberals. Similarly, how conservative is it to be one of the most activist justices in history in terms of overturning popularly enacted laws (Keck 2004)?

In a recent interview, Chief Justice John Roberts commented on how he would like the Court to be more collegial and less about nine different personalities: “A justice is not like a law professor, who might say, ‘This is my theory . . . and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area. It would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record” (Rosen 2007). There is little doubt that Scalia follows the law professor model that Roberts criticizes. If we are persuaded by Staab’s argument – and there is much evidence that suggests we should – Roberts will have a difficult time convincing Scalia to give up some of his deeply-felt principles for the sake of collegiality and unanimity. If Scalia’s first twenty years on the Court are any guide, Roberts may be forced to disadvantage if not punish his conservative colleague by working with those justices who are both less doctrinaire and more willing to compromise. Yet, as Staab’s discussion of Scalia’s shift from Hamiltonianism to Madisonianism in federalism matters suggests, Scalia may have already demonstrated an ability to change. Whether the seventy-one-year-old jurist, who has been retirement eligible since 2001, changes enough to be considered a team player by the new Chief Justice remains to be seen.

REFERENCES:
Richard A. Brisbin, Jr. 1997. JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL. Baltimore: The Johns Hopkins University Press.

Chernow, Ron. 2004. ALEXANDER HAMILTON. New York. The Penguin Press.

Cleveland, Sarah H. to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 633.

Ginsburg, Ruth Bader to Antonin Scalia, November 15, 1993, BLACKMUN PAPERS, Box 631. [*100]

Hubbard, Ann to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 632.

Keck, Thomas M. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: University of Chicago Press.

Rosen, Jeffrey. 2007. “Roberts’ Rules,” ATLANTIC MONTHLY. January/February.

Rossum, Ralph. 2006. ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION. Lawrence: University Press of Kansas.

Schultz, David A. and Christopher E. Smith. 1996. THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA. Lanham: Rowman & Littlefield Publishers, Inc.

Smith, Christopher E. 1993. JUSTICE ANTONIN SCALIA AND THE SUPREME COURT'S CONSERVATIVE MOMENT. Westport: Praeger Press.

CASE REFERENCES:
GONZALES v. RAICH, 545 U.S. 1 (2005).

HOLDER v. HALL, 512 U.S. 874 (1994).

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

MCCULLOUGH v. MARYLAND, 17 U.S. 316 (1811).

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

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© Copyright 2007 by the author, Artemus Ward.

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SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM

by Janet Halley. Princeton: Princeton University Press, 2006. 418pp. Cloth. $29.95 / £18.95. ISBN: 0691127379.

Reviewed by Claire Rasmussen, Department of Political Science and International Relations, University of Delaware. Email: cerasmus [at] UDel.Edu.

pp.92-95

The Duke rape case has become a lightning rod for feminist and anti-feminist supporters. What originally seemed like the perfect storm of racial, class, gender, and educational privilege leading to an act of oppression now appears to be something far more complex and ambiguous. The incident revealed how difficult it can be to analyze and understand the power relationships that undoubtedly lie beneath whatever happened at that night at a house in Durham. In such an environment, where a feminist analysis seems both more necessary and more dangerous, Janet Halley’s new book SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM treads brave ground in appealing to feminist scholars that not only has her own break from feminism been intellectually stimulating, but might be a valuable vacation for more of us.

Halley’s text is both highly theoretical and deeply personal, engaging on both levels with feminist and non-feminist literature in the last twenty years. Her ultimate argument is that feminist literature in the United States has taken a form that can often be as limiting in terms of analysis as it can be illuminating. Her formula for defining American feminism is brief: m/f, m>f, and carrying a brief for f. In other words, feminism begins with a basic assumption of a gender binary in which masculinity has been the dominant form and the goal of the feminist theorist is to provide analysis which combats the oppression of women. Her concern with feminist scholarship is that this formula has become a limitation on scholarship, preventing feminists from exploring beyond the gender-centric analysis of feminist. She also regrets a growing “statism” in feminism that looks to public policy and the state to remedy our gender woes.

Halley lays out the intellectual landscape of feminism and its alternatives through exploration of debates within feminism and, most prominently, splits on questions of sex and sexuality. She foregrounds debates between feminism and queer scholars for personal reasons—Halley’s own turn to questions of sexuality in law—and [*93] for intellectual reasons. If debates over race and ethnicity within feminism redefined feminist scholarship in the 1980s and early ’90s, debates over sexuality have reshaped feminist scholarship in the last fifteen years in profound ways.

To explore the contours of this debate, the first two sections trace, respectively, feminist arguments that reflect the general formula of American feminism followed in the next section with the emergence of queer theory that begins to express ambivalence about feminism both for its understanding of gender and for its exclusion of certain concerns. The section on feminism primarily examines two feminist perspectives, the power feminism of Catherine MacKinnon and the cultural feminism of Robin West. She secondarily turns to examine the Cohambee River Collective manifesto and “Can the Subaltern Speak” by Gayatri Spivak. She provides in-depth and careful readings of the differing authors, using them to illustrate what she sees as problems plaguing feminist theorizing. Halley provides helpful sections demonstrating what she sees as divergentist trends—that is those impulses we see in the texts that urge “taking a break” from feminism—that break from the formula of feminism in order to explore other possible interpretations of the relationship between gender, sex, and sexuality. She also examines one of the chief errors in which feminist theorizing which is a convergentist impulse, an attempt to bring stragglers back into the fold of feminist theorizing by implying that feminism can, indeed, provide the normative framework for all relevant concerns.

The middle section on queer theory explores a range of divergences from feminism that has generally resulted from the study of sexuality. She begins with a discussion of Foucault’s THE HISTORY OF SEXUALITY, a text that deliberately does not view sexuality as primarily derived from the gender binary and power relationship deployed by feminists. She examines the text itself and its profound impact on scholarship on sexuality with a particular nod to the work of Gayle Rubin. She goes on to address a range of texts including Judith Butler, Eve Kosofsky Sedgwick, Leo Bersani, Michael Warner, Duncan Kennedy and Jay Prosser before turning to a set of feminist anthologies produced during the various debates over feminism including its relationship to postmodernism and queer theory.

The final section of the book is dedicated to exploring the advantages of taking a break from feminism as a primary theoretical lens. While the first two sections may be of interest primarily for those ensconced in the debates of feminist and queer scholarship, the final section offers a more general perspective on theorizing as an academic activity. The section is built around interpretations of two different court cases buttressed by a set of sections that consider the probable theoretical and political arguments against taking a break. The goal is not to replace feminist interpretations but rather to open ourselves up to multiple possible interpretations, some that may dovetail with feminism and many which may not. In her readings of the various cases she examines the costs and benefits of particular feminist readings and how they reveal to us something about the power relationships at work, but also how reading them in such a way comes with costs in terms of the other possibilities they may be suppressing. She then provides alternative explorations of the dynamics of particular sexual relationships, such as the same-sex sexual harassment of Joseph Oncale that became the Supreme Court case, ONCALE v. SUNDOWNER OFFSHORE SERVICES, and the object of feminist analysis. [*94]

The decision to focus on a few specific texts as illustrative of movements in feminism and queer theory has its advantages and disadvantages. Halley’s readings are almost unfailingly sympathetic and detailed, enabling her to point to specific moments in texts where she finds the author making at times useful and at times dangerous moves in their theoretical commitments. For example, a reader familiar with Halley’s own postmodern and queer commitments (which she makes clear in the introduction), might be surprised with her incredibly sympathetic reading of MacKinnon and her structuralist approach. Of course, selecting a few texts as representative of a whole or of a trend is problematic given the controversial argument of Halley’s text, that feminism may have nothing to offer progressive scholars, or even feminists, in some cases. As an historical survey it is necessarily partial in terms of evaluating the robust debates that occurred within feminism during the time period Halley evaluates, focusing chiefly on sexuality without much analysis of, for example, ongoing discussions of race, gender and sexuality. As an exploration of feminism, it is most deeply ensconced in some of the most academic debates and less concerned with feminism as a public movement. And, as a partial survey, the literature does for Halley precisely what she argues theory should do, present us with new analytical conundrums that require us to think more deeply about the political ramifications of our theoretical commitments.

As an admittedly partial genealogy of feminism, the text is a valuable engagement with some of the most important—and most difficult—debates in academia over questions of gender and sexuality. Halley’s readings are thorough but challenging, making the book a valuable refresher course for those already familiar with the debate, or providing a solid introduction to contemporary literature on gender and sexuality for graduate students. Above and beyond the textual knowledge she presents, Halley’s writing is unquestionably enjoyable, containing personal asides, creative rhetorical strategies and even laugh-out-loud moments that give lie to the claim that feminists are no fun.

Beyond a literature review, the book is most interesting as an exploration of how and why to theorize. The book is, at its heart, an examination of Halley’s own intellectual journey and, perhaps, an answer to a very personal question about why not feminism anymore. Yet Halley repeatedly takes her personal response and opens it up to the reader, occasionally via direct address using questions posed to the reader about their level of comfort about certain claims relative to feminism. Halley quite unapologetically takes up for those she views as excluded from or silenced by the canon of feminism, whether transgendered subjects, men who desire men as men, or even the most Other figure to feminist theory—the heterosexual male. Indeed, as I read Halley’s multiple interpretations of the various court cases I came to a greater appreciation of her overall approach to the texts discussed in previous sections that was—to borrow a verb from the Butler-era of feminist theory—performative. [*95] Halley’s readings of texts are an example of a form of theorizing that can take a break from feminism without dismissing feminist theory from the discussion. As a polemic, the book pleads for openness as theorists, an engagement with ideas, events, and politics without knowing in advance our purpose or end point. In this way, Halley can find a certain intellectual spark in MacKinnon while also reading Duncan Kennedy’s ode to his own heterosexuality as queer theory. The work is evocative of some of the most innovative explorations of sexuality that have engaged both with and against feminism including that of Anna Marie Smith, Lauren Berlant, and Lisa Bower.

These readings demonstrate a theoretical style that is most associated with poststructuralist theory but that rarely is achieved with such clarity. She states her purpose up front: “I hope to elicit your desire to think that no one theory, no one political engagement, is nearly as valuable as the invitation to critique that is issued by the simultaneous incommensurate presence of many theories . . . . I am promoting a left-of-center political consciousness that makes such commitment perpetually contingent on redecision at the level of theory. I am urging us to indulge—precisely because we love justice but don’t know what it is—in the hedonics of critique” (p.9). Those with postmodernist tendencies may nod along with Halley in these sentiments, appreciating her desire to multiply our theoretical perspectives without the urge to make them converge on or around a single set of commitments. Those who read the book from other left-of-center perspectives, including feminists, will likely find such a call frustrating and politically divisive. But as the unfolding of events at Duke suggests, ambivalence may be the only responsible response, even for a good feminist.

REFERENCES:
Berlant, Lauren. 1997. THE QUEEN OF AMERICA GOES TO WASHINGTON CITY: ESSAY ON SEX AND CITIZENSHIP. Durham, NC: Duke University Press.

Bowers Lisa. 1994. “Queer Acts and The Politics Of Direct Address.” 27 LAW AND SOCIETY REVIEW 1009-1934.

Foucault, Michel. 1990. THE HISTORY OF SEXUALITY: AN INTRODUCTION. New York: Vintage.

Smith, Anna Marie. 2001. “Missing Post-structuralism, Missing Foucault: Butler and Fraser on Capitalism and the Regulation of Sexuality.” 67 SOCIAL TEXT 103-25.

Smith, Anna Marie. 2002. “The Sexual Regulation Dimension of Contemporary Welfare Reform: A Fifty State Overview.” 8 MICHIGAN JOURNAL OF GENDER AND LAW 121-218.

CASE REFERENCE:
ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC., 523 U.S. 75 (1998).

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© 2007 by the author, Claire Rasmussen.

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MODERN LIBERTY AND THE LIMITS OF GOVERNMENT

by Charles Fried. New York: W.W. Norton & Company, 2006. 288pp. Hardback $24.95. ISBN: 0393060004.

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

pp.87-91

The concept of liberty – like closely related political terms such as equality, justice, and democracy – seems to be what William Gallie (1956) called an “essentially contested concept.” While the notion of essential contestability itself has been a matter of some debate, the basic idea has a strong intuitive appeal in social thought, particularly if one accepts the pluralistic assumption that there exists no single conception of the good that is compelling for all persons and that the clash of incommensurable ends is therefore an ineliminable feature of civic life. The suggestion, then, is that while linguistic and conceptual analysis may be able to produce a reasonable degree of consensus about the abstract meaning of the key terms of political discourse, or at least a range of meanings that share a family resemblance, the persistence of widespread disagreement about the criteria for their correct application is likely to remain intractable. The source of the disagreement is precisely that differing judgments about the best realization of these political ideals are rooted in substantive normative commitments to rival visions of social life, which are deeply resistant to rational resolution.

The extent of the dispute becomes clear when one considers specific cases. Everyone presumably agrees that physically restricting a person’s bodily movements by, say, shackling his hands and feet in chains is a prima facie violation of his liberty, which can be justified, if at all, only on some morally serious ground, such as the conviction of a crime. In this sense, liberty simply means freedom from external constraints. The problem of economic necessity, however, is much more vexing. Whatever else it may mean for citizens in a community to enjoy maximum equal freedom, if the coercive enforcement of the system of property and contract rights that underlies capitalist competition creates the conditions in which some persons are chronically hungry, poorly educated, unable to afford adequate medical care, or presented with few and unappealing employment prospects, they are certainly not free from those constraints in the pursuit of whatever aspirations they happen to have. The question thus arises: can a person really be said to be free in the relevant sense if she is faced with substantial social obstacles that, through no fault of her own, impede or defeat her ability to develop and pursue her own idiosyncratic life plan?

More broadly, the outstanding hallmark of large-scale market institutions is their tremendous productive capacity, which has proven to be an unrivaled engine of economic growth, innovation and efficiency. But the process of “creative destruction” engendered by markets is [*88] by no means an unqualified good, and therefore stands in tension with the competing values of a small-scale market place, which are instantiated, for example, in those ubiquitous zoning ordinances enacted by local polities designed to restrain unfettered market outcomes. At the very least, the impulse to place limits on commercial activity in order, say, to preserve green spaces or the unspoiled character of a neighborhood clearly enjoys widespread democratic support. Even within the liberal tradition, theorists’ normative intuitions about these matters differ sharply, ranging from anarcho-capitalism on one end of the spectrum to socialism on the other end, with welfare liberalism ambiguously located somewhere in between. The practical business of politics – at the retail level, so to speak – can be understood as an attempt to adjudicate between these competing conceptions of freedom.

If I have read him correctly, Charles Fried’s graciously written but thinly-argued essay – Fried himself has characterized it as a “very unbuttoned book,” chock-full of “free association” – is an effort to reintroduce to a wide audience Benjamin Constant’s notion of “the liberty of the moderns,” which, as G. K. Chesterton famously quipped, was “the philosophy in office” during the nineteenth century. Fried’s primary aspiration is thus to rescue the classical liberal conception of liberty from the contemporary positivist dogma that rights claims are little more than conventional forms of legal regulation the state confers for its own purposes, with the consequence that we have only whatever civil liberties it deigns to grant us. Without denying the material benefits derived from the modern welfare state, Fried argues that a coherent theory of political liberty must be grounded in certain imprescriptible facts of human existence (about which more below), which constitute the empirical foundation for ascribing a set of natural or inherent rights that both determine the legitimate scope of our freedoms and are resistant to manipulation by the government. “If we have some rights, and therefore liberties, that are prepolitical rights which the state is bound to recognize,” he asserts, “rights that are there before the state gets down to the business of defining rights, then, like Archimedes with his lever, we have a place to stand, and liberty can move the world. . . . [U]nless we have [such] natural, prepolitical rights, liberty is not secure” (pp.144-145). Quite the contrary, Fried claims that if we assume that such rights are not naturally given, but rather are “defined by what government does, then government cannot be constrained by that freedom” (p.113).

Accordingly, Fried’s analysis begins with an anthropological observation, namely the “rock-bottom, indigestible fact of each person’s lonely individuality, his ultimate responsibility for his own beliefs, judgments, and choices,” which in turn “grounds our demand that we be free” (p.22). He readily acknowledges that human development, and hence the capacity to exercise autonomous choice responsibly, depends crucially on the material support of others, given that “we are born ignorant, unreasoning, and dependent” (p.172). Nonetheless, he [*89] insists that the fundamental right of competent adults to go about the business of living without officious intermeddling, “except as we choose to ask for or give our cooperation,” is an implication of the existential fact that “[w]hat gives my goals and satisfactions worth – depth and intensity – is that they are mine, that I have imagined them, seen them, judged and chosen them” (pp.60, 67).

In this view, it follows that liberty, rightly understood, is an exclusively negative relation between persons, “a relation in which each person refrains from interfering with the self-determination of others,” out of respect for their not-yet-fully-realized capacity for rational agency, rather than a positive relation in which one is effectively “enlist[ed] into a cause one does not share” (pp.51, 32). The content of our rights, therefore, consists in “the entailments of what we are: free and reasoning persons, capable of a conception of what is good, and mortal, so that in the end we are urgently responsible to ourselves for achieving that good (which in all likelihood often concerns the good of others).” For this reason, “those who say that our rights depend on or are the creatures of states have it the wrong way around” (pp.71-72).

There is, to be sure, much to be said in favor of this venerable account of the foundation of human rights as a vehicle for authentic self-realization. As Jeffrey Reiman (1997) has pointed out, it has been a staple of Enlightenment thought at least since Descartes that human beings necessarily exercise authority over their own beliefs, because even when a person harbors doubts about the certainty of her beliefs, she always has a reason for doubting (e.g., an evil demon might be deceiving her, her cultural blinders might be misleading her, and so on). This is arguably true even when a person assents to the dogmatic authority of some comprehensive religious or philosophical doctrine, because she must ultimately judge for herself that it is worthy of her allegiance. The authority of reason in this sense, which is an inherent feature of our unique linguistic capacity, is thus a condition of the possibility of inquiry, discourse, interpretation, and so on, rather than merely the imposition of a parochial Western viewpoint.

Furthermore, if this picture of human beings as embodied rational animals is roughly correct, as I am inclined to believe, then it is arguably appropriate to allow persons so constituted to live as far as possible by their own lights, according to beliefs that they judge for themselves to be worthy of assent, consistent with the ability of others to do likewise. This also explains why it is widely thought to be a serious moral insult to force one’s normative judgments about the best form of life on those who do not freely assent to them. Accordingly, Fried quite plausibly argues that there is a kind of realist moral basis for political liberalism’s robust endorsement of rights to the free expression of ideas, however offensive or unpopular (pp.95-123), to form close associations with others, including intimate sexual relationships, without public interference (pp.124-143), and to acquire, possess and exchange personal [*90] property (pp.144-161), each of which is a necessary component of individual human flourishing.

But while this conception of “individual sovereignty” (as Reiman puts it) implicates a set of characteristically liberal duties or moral requirements concerning the just treatment of persons, it does not necessarily yield convincing answers to the sort of the policy questions that Fried is anxious to insulate from the reach of democratic intrusion, such as the delivery of health care services or the sale of ordinary consumer goods by large corporate retailers. As Fried admits, the definition of the legal incidents of property and contract constitutes a persistent source of controversy, since no such regime is naturally given, yet has the effect of “limiting the liberty of some as it establishes the liberty of others,” which, in turn, threatens to produce “[g]ross inequalities . . . [that are] incompatible with relations of trust and respect” (pp.147-148). The injunction to maximize liberty therefore significantly underdetermines policy initiatives, which require the exercise of a qualitative and not merely a quantitative judgment about what counts as a genuine constraint on personal freedom.

Indeed, as Jeremy Waldron (1992) has argued, even if we assume that there are moral facts about human nature that make evaluative judgments objectively true or false, independently of what anyone thinks about the matter, there is neither any agreement about what those facts entail nor a widely-held consensus on an epistemic procedure for authoritatively resolving such differences, as there is in the natural sciences. “The facts don’t reach out and grab the decision-maker,” Waldron observes, “preventing her from deciding capriciously, or dictating themselves to her in any unavoidable way. . . . Facts don’t constrain us in the sense of constraint in which we are interested in politics.” As a result, legislators, judges, bureaucratic administrators and voters will invariably reach conflicting value judgments about such contested questions of social policy, “even when they take themselves to be pursuing the right answer, and nothing about the ontology of the right answer gives any of them a reason for thinking her own view is any more correct than any other.”

The persistence of moral disagreement certainly does not imply that any definition of rights the government officially adopts is ultimately warranted – far from it. The result of a democratic decision procedure does not necessarily bring the demand for justification to an end. But it does suggest that, even if there is a meaningful sense in which an individual’s right to liberty is grounded in the natural fabric of human relations, as Fried claims, the concrete scope of each person’s liberty is invariably a matter for social choice, based on a fallible assessment of the normative merits of the question at issue. The tangible content of such rights cannot be simply read off an apolitical moral landscape. But this means that, if government regulation is to be constrained within reasonable limits, it is a matter for which we share joint responsibility. No account of human nature, contra Fried, can relive us of the burden of choice. [*91]

REFERENCES:
Gallie, William B. 1956. “Essentially Contested Concepts.” 56 PROCEEDINGS OF THE ARISTOTELIAN SOCIETY 167-198.

Reiman, Jeffrey. 1997. CRITICAL MORAL LIBERALISM: THEORY AND PRACTICE. New York: Rowman & Littlefield.

Waldron, Jeremy. 1992. “The Irrelevance of Moral Objectivity.” In Robert P. George (ed). NATURAL LAW THEORY: CONTEMPORARY ESSAYS. New York: Oxford University Press (158-187).

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© Copyright 2007 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.

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SOCIOLOGICAL THEORY AND CRIMINOLOGICAL RESEARCH: VIEWS FROM EUROPE AND THE UNITED STATES

by Mathieu Deflem (ed.). Amsterdam: Elsevier Ltd, 2006. 302pp. Hardbound. £57.99 / $99.95 / €82.95 ISBN: 0762313226.

Reviewed by Sawyer Sylvester, Department of Sociology, Bates College. Email: ssylvest [at] bates.edu.

pp.81-86

At the beginning of this volume, Mathieu Deflem states that the book’s purpose is “to show that some of the very best criminological work is distinctively informed in useful and varied ways by sociological theory” (p.2) and exemplifies his claims in the first chapter with an essay by Karl Schumann on how the relationship between work and crime can be explained by reference to Max Weber’s thesis on the protestant ethic. Schumann begins by showing the theoretical inadequacy of such other explanations as anomie theory, control theory, and rational choice theory and also points out their weak empirical support. Schumann’s own explanation is based on data from the Bremen school-to-work study. He hypothesizes that failure to complete successfully an apprenticeship program in Germany was related to higher delinquency rates; but this hypothesis was not supported. However, it appears that in later life a relationship between work and crime might exist because of interruption of a career trajectory by a criminal sanction or because of differential targeting of lower levels of the work force by law enforcement.

The study is informative but perhaps less successful in establishing the immediate relevance of Weber’s theory. In addition, the author’s wishing to “look for a theoretical framework to understand why law enforcement agencies have everyday routines which discriminate against persons who lack working skills” (p.24) might be better informed by modern routine activities theory.

The second essay by Imke Dunkeke is an attempt to show the relationship between family structures and school truancy through the use of Robert Merton’s anomie theory. Dunkeke begins by associating Merton’s five ways of adapting to anomie (conformity, innovation, ritualism, retreatism, and rebellion) with five types of truancy and shows how the four “deviant” modes of adaptation might individually lead to one of the types of truancy – but she then concentrates on the student “innovator.” She finds that the truant-by-innovation is primarily from a low SES family, is thus less likely to succeed in school, and will seek achievable goals outside of school. Dunkeke also includes in her thesis the elements of expected value theory, that low SES children soon realize the touted benefits of formal education will be unproductive for them. To this she adds Bordieu’s concepts of social and cultural capital and discusses how the low level of these in low SES families may be related to school achievement.

Dunkeke refers to the results of a study done using data from the German PISA survey (Program for International Student Achievement) and self-report [*82] data on truancy. These data initially support the hypothesis on the relationship between SES and truancy but through the intervention of social and cultural capital. All this is seen as a more explanatory thesis than the unmodified version of Merton’s anomie theory.

Merton’s theory is likewise the focus of the article by Sanjay Marwal and Mathieu Deflem. These authors suggest that among the criticisms of Merton’s original theory was that it lacked specificity and was empirically untestable. They suggest that this was in part due to the fact that Merton actually does not present a single theory but two: anomie theory and strain theory. They also feel it should be noted that Merton’s concept of social structure included the essential elements of structured opportunities.

The authors then go on to cite – and refute – what they believe are several misunderstandings of Merton’s theory. First, the theory is seen by some social control theorists as explaining deviance primarily at the micro level, ignoring the fact that Merton sees structured opportunities as a determinant of deviance. Second is the claim that it is the cultural structure that explains anomie. The authors suggest that all cultural structures must be imbedded in a social structure and that people are variously distributed throughout it and, hence, differently exposed to its cultures. Finally, there is the criticism that Merton’s theory overlooks human agency. But the authors point out that social and cultural structures have no sociological meaning unless they are “mediated by human agents” (p.67). Human interests become social facts only as they are worked out in some social structure – especially an opportunity structure. It is in large part the differential availability of opportunities that constrains and shapes human agency.

Ross Matsueda provides a detailed examination of the nature and influence of the theories of George Herbert Mead on the symbolic interactionist focus in American criminology. One of the significant features of this paper is its demonstration of how symbolic interactionist theory is useful in explaining the etiology of crime, since hitherto the principal example of that perspective – labeling theory – has been mainly applied to secondary deviance. Matsueda notes that Mead locates social control in an individual’s ability to take the role of the other, and this is done as part of a sequence in human action involving “impulse, perception, manipulation, and consummation” (p.80). In this process, the actor takes on the roles of significant others and incorporates these as contingencies of action. A social self is formed. Finally, and perhaps most importantly, Matsueda discusses the significance of Mead’s theory for life-course perspectives on crime, suggesting that the temporal aspects of the reflexive self can be a frame for both the genesis and the desistence of crime. Especially in regard to the latter, the physiological aspects of aging and their effects on the capacity for active predatory crime have to be interpreted by the reflexive self with all the role-taking and role transition that is constantly a part of it. [*83]

Just as Matsueda attempts to illuminate the relationship between age and crime, Karen Heimer, Stacy De Coster and Halime Unal examine another master variable for crime: gender. They suggest a theoretical design for understanding the gender gap in crime through a study of gender socialization. They begin by noting that a system for gender-based expectations for appropriate behavior is established in several social settings. In families, parents judge the acceptability of children’s behavior based on established gender expectations. They also assign household chores in accordance with stereotypic role expectations. Peer groups do the same in play and games. Both teachers and texts in school may encourage boys to be “strong, active, aggressive, and independent” (p.114), and girls to be “passive, dependent, and nurturant” (p.114). And the media reflect these stereotypical expectations as well.

However, it is not only that the accepted roles for females may be intrinsically those that would be less likely to lead to crime, they may also be those which make girls more amenable to parental instruction. It has been widely noted that girls are more closely supervised at home; but it may also be the case that, because of female role expectations, parental supervision is also more effective. The authors mention several other implications of female socialization for crime, including that gender definitions may result in differential acceptance of risk and that men’s traditional preparation for competitive careers in the marketplace may make risk-taking more attractive.

Nigel Fielding’s article deals with formal and informal socialization processes for police careers in Great Britain. He is particularly concerned with police training required by the shift in policy toward community policing after the riots in the 1980s. Among the problems in community policing which his study highlights is whether a community, in any conventional sense, exists – at least in those areas where such policing has been deemed necessary. And even if there were something recognizable as a community, does its nature not differ sufficiently from place to place to make any standard community policing program widely inapplicable? Finally, if communities do differ significantly, and to further community policing they must be treated differently, what does this imply for the ideal that law enforcement should treat all persons equally? In the end, Fielding notes the consequences of these issues for program implementation and especially for program evaluation. He also notes that proponents of community policing have done very little to develop a community policing theory.

Max Weber’s interest in the growth of rationalism as a system of ideas led him to suggest two types of rational law – formally rational and substantively rational. Joachim Savelsberg uses these ideal types to examine sentencing policy in twentieth-century America. He sees a trend in the legal history of the United States from a formally rational perspective in the eighteenth century to a more substantively rational view in the late nineteenth and early twentieth century – and then a return to a more [*84] formally rational position in the late twentieth century, the era of sentencing grids and severe constriction of judicial discretion.

The Enlightenment in Europe gave birth to the Classical School of criminology as exemplified by the writings of Beccaria and Bentham. In the nineteenth century, with the rise of the Positivist School of criminology in Europe and the beginnings of social science in Europe and America, the idea became widely accepted that sentencing could be instrumental in bringing about substantive results – reformation, treatment, correction.
Later, when it appeared to many that policies designed to treat and rehabilitate offenders had an unacceptably low success rate – especially when evaluated in the light of the very science which produced those policies – the discretion given to judges to fit sentences to the offender and not exclusively the offense seemed misplaced.

Mandatory sentencing, three strikes, and sentencing grids – in short, a return to formal rationality – were seen as the answer. Savelsberg describes three studies which he believes show that this return to formal rationality has been counterproductive. In addition, in one of the studies, he seems to find that one function of contemporary sentencing was not contemplated by Weber’s scheme – that of “organizational maintenance” (p.192), sentences constructed to further the smooth flow of cases through the bureaucratic structure. I would only remark that Weber himself emphasized that the actual elements of the real systems designated by ideal types are often mixed and that even in a formally rational system, formality can retreat enough to accommodate substantive ends.

An article by Robert Crutchfield explores another of the master variables of crime: class. However, he notes at the beginning that the relationship holds more clearly with serious crimes and, even then, it may proxy for location. He sees two theories as being useful in explaining the relationship between class and crime – social reproduction theory and dual labor market theory. Crutchfield explains that the influence of class on crime is stronger to the degree that class position can be seen as intergenerational, and that social reproduction theory explains the mechanisms of intergenerational transfer. As parents in underclass locations tend to have reduced ability to support their children’s education and have weaker social bonds with their children, they tend to perpetuate the characteristics of their class structure in their children. The same parents are forced to take jobs which are poor paying, part time, and without opportunity for advancement. This tends to fix families in areas of low-cost housing with similarly situated families in a community which does not present to children the image of work as rewarded or as a step toward a career. For both parents and children, life on the street presents a social space with values, rewards, and risks which may be more realistic and attractive.

In her article,Susanne Karstedt suggests that in an era where rational choice theory and routine activities theory [*85] picture a rational offender dealt with by a rational criminal policy, we should not ignore the relationship between emotions and crime. She begins with references to Durkheim and to his claim that the function of punishment has less to do with the offender and more to do with a collective reaction of the community to the violation of its norms and an effort to re-establish solidarity around those norms. She reminds us that, paradoxically, even in modern systems of “actuarial justice” there may be outlets for community anger toward the offender in the long mandatory sentences which are often a part of such systems. She advocates a “return to emotion” in criminal justice which she claims has already taken place with victim impact statements at sentencing hearings. Karstedt also sees promise in the various forms of restorative justice.

In the final essay, Rene van Swaanigen deals with the overall problem of criminological knowledge and knowledge acquisition. He begins with the claim that the discipline’s “epistemological threshold” is too low, that its methodologies are mostly borrowed, and its findings too subject to political influence. He sees this as a product of the historical development of criminology, and uses as an example the history of criminology in the Netherlands. It is a history which, in rough outline, parallels the history of criminology in other countries. But van Swaanigen uses this account to demonstrate how Dutch criminology in the 1980s increasingly became a problem-solving discipline whose theoretical base was, to a large degree, occupied by control theory, rational choice theory, and routine activities theory. These, in turn, would inform such policy initiatives as situational crime prevention, risk analysis, and problem-solving policing.

The temptation to judge an academic discipline by its practical applications alone became a strong one. But van Swaanigen warns that this has its dangers. Academic criminology can easily become the captive of criminal justice policy – especially through the influence of research funding. Intellectually stimulating theories lose out to those having immediate practical applicability, and criminology forfeits its position to act as an independent critic of criminal policy on empirical as well as normative grounds. The solution he proposes is a major improvement in the depth and scope of the discipline’s research methodology so that criminology’s claims about the nature of crime have solid epistemological credentials. Still, as the author states:

There will, for example, always remain a paradoxical relationship between the wish to develop a solid, empirically based criminology and the attempt to deal with topical, not yet fully crystallized themes. When the former is dominant, we will inevitably run behind, but when the latter dominates, we run the risk of delivering free opinions with no more value than a journalistic piece. (p.267)

In the end, we have to ask whether the book’s overall thesis, that sociological theory informs the best criminological work, is supported. I think, overall, it is; although some of the articles do a better job at this than others. In one sense, it [*86] does not matter, since most of the papers make strong individual contributions in their own right. Paradoxically, they seem to do better at this latter task to the degree they are not as involved in establishing the central thesis.

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© Copyright 2007 by the author, Sawyer Sylvester.

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REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION: ENGLAND, FRANCE, AND THE UNITED STATES

by Michael Burrage. Oxford and New York: Oxford University Press, 2006. 704pp. Hardcover. $150.00 / £84.95. ISBN: 0199282986.

Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu

pp.75-80

Michael Burrage’s magisterial tome is a culmination resulting from a convergence of several important developments in one branch of legal sociology. Over the past two decades, students of the legal profession have sought to employ historical analysis, to bring politics back in, and to pursue both endeavors in a comparative vein. Burrage, who currently is a Research Fellow in Industrial Relations at the London School of Economics and Political Science, himself has been involved in advancing all three of these concerns. For instance, in 1990, Burrage and colleague Rolf Thorstendahl, edited two collections of essays that sought to rethink the study of professions along historical lines (Burrage and Thorstendahl 1990; Thorstendahl and Burrage 1990). Nine years later he contributed an essay to a Review Section Symposium of LAW & SOCIAL INQUIRY addressing Lawyers and Politics (Burrage 1999; cf. Halliday 1999 and Scheingold 1999.) The present work represents something of a scholarly “quantum leap” in which Burrage builds on these developments, pursuing all three lines of inquiry to offer Weberian “intelligible explanations” (p.593) of the distinguishing characteristics of the legal profession in England, France, and the United States. As such, REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION is a welcome addition to the Oxford University Press Socio-Legal Studies series.

Burrage’s book is about what he characterizes as “A Fateful Encounter” (Chap.1, emphasis added). The fateful encounter he plumbs at length is between revolution and lawyers’ professional formation. Burrage’s use of the singular noun – “encounter” – in his key first chapter is somewhat misleading. To begin with, underlying a fateful encounter between revolution and lawyers’ professional formation is another, more fundamental, clash between social ideals and social realities. Burrage begins his analysis of attacks on lawyers in association by reviewing various manifestations of the well known antipathy toward lawyers. Unsurprisingly, it appears that a central goal animating revolution in the West, as Burrage understands the phenomenon, is to be rid of lawyers. “[L]aw without lawyers,” he writes, “has been one of the more enduring and resilient ideals of western civilization, recurring in the works of authors of varied temperaments and philosophies, separated by vast distances of time and culture, and living under diverse social and political systems” (p.5). Given Burrage’s Shakespearean view of the revolutionary ideal to “kill all the lawyers,” one might say that his essential story is one of [*76] paradise lost, or how revolution shaped lawyering without eradicating the profession.

But Burrage’s “encounter” has further dimensions. Not only is he describing revolutionary “ideals that were frustrated or abandoned, and dreams that failed” (p.7), he also is telling the story of three distinct revolutionary encounters. Although revolutions in England, France, and the United States, respectively, may have failed to eliminate lawyers, still “there is reason to believe that the way in which these legal professions resisted or recovered from these revolutionary attacks, and later adjusted to, or were forced to adjust to, the institutionalized settlements of revolutionary ideals can help us to understand their peculiarities in the modern world” (p.7).

Having just pointed out that Burrage’s analysis is more multi-dimensional than the title of his first chapter suggests, it may now seem ironic to note that his entire argument rests upon a single factor – revolution. Single-factor analyses are risky business. One of the most (in)famous examples of such analysis, with which LPBR readers are no doubt familiar, is Louis Hartz’s THE LIBERAL TRADITION IN AMERICA. Like Hartz, Burrage sets out to write an “ambitious book . . . impressive in its learning and in the mastery of . . . analysis . . . a book of great scholarship, historical grasp, and theoretical sophistication” (p.vi). Initial assessments of Hartz’s approach ranged from “freewheeling and controversial” (Mowry 1955) to “perverse historical method” (Koch 1955; cf. Ellis 1996; Smith 1997; Kloppenberg 2001). In what amounts to one of the more radical understatements in American political thought, Hartz acknowledges blithely on the very first page of Chapter 1 of his “magnum opus” (p.vi): “I know that I am using broad terms broadly here” (Hartz 1955).

Burrage is not quite so bold. I say “not quite” because, while acknowledging that “[r]evolutions and professions, the two phenomena at the centre of the investigation are . . . both also the center of academic battle zones” (p.7), Burrage resolutely refuses to intervene in the “intellectual game” (p.8). “There are arguments enough in the pages that follow,” he parries, “and no point therefore in picking a fight . . . on one’s way to the ring” (p.8). Fair enough. Whether Burrage is too clever by half or astute rests upon the persuasiveness of his historical analysis. More, below, on his performance in “the ring.” Here it needs to be said that, red flags to the contrary notwithstanding raised by Burrage’s seemingly cavalier attitude, he does specify baseline definitions of “revolution” and “profession,” both of which derive from, and are designed to serve, the comparative focus of his particular investigation.

Burrage treats revolutions “as they usually appeared to the legal professions themselves” (p.8) on the ground, so to speak. Hence, despite “profound differences” (p.7) between the English (1688), American (1776), and French (1789) revolutions, he argues that, as far as lawyers were concerned, “in three respects that matter . . . they are similar, even identical” (p. 7): [*77]

To begin with, they all involved armed revolt against the agents, institutions and legitimacy of the existing state, which led to its collapse and transfer of its authority to new state institutions, which claimed legitimacy on new grounds. Second, they all provoked attacks on the law, the courts and the legal profession which were all without parallel, in scale, fury and content, in either the previous, or the subsequent histories of three societies. Third, these attacks prompted attempts to reform the law, the courts and the legal profession, which were also more comprehensive and radical than those at any time in their history (p.8).

Burrage defines professions just as pragmatically. His initial, “bare-bones” (p.9) definition is:

Whenever full-time legal practitioners have come to recognize that they have certain common interests based on the work they perform, or on the knowledge and skills they share, have taken collective action to defend these interests, and in so doing have received some recognition or privileges from the state that set them apart from other occupations, they will be taken to be a profession (p.9).

The analytical problem Burrage poses is this: “What Have [lawyers] Actually Done, or Tried to Do?” (p.22). Prior to addressing this question, he elaborates on his defining characteristics of the legal profession. “In the end, we are left with four things that lawyers, once they have recognized their common interests and begun to act collectively, have consistently tried to do . . . 1. To Control Admission and Training . . . 2. To Define and Defend a Jurisdiction . . . 3. To Regulate Each Other’s Behavior . . . [and] 4. To Defend and Enhance Their Corporate Status” (pp.22-41).

Once he has staked out this definitional territory, Burrage proceeds to walk the reader through over five-hundred pages covering several millennia of, first, French, then American and English history, culminating in each society’s revolutionary spasm and the lingering consequences for the three legal associations. If Burrage’s definitions are parsimonious, his historical analysis is exhaustive. His analysis also is engaging, wide-ranging, and lucid. Even if one were, in the end, to conclude that Burrage had not made his case regarding revolution and the legal profession, there is no gainsaying that he has produced a meticulous piece of scholarship. The word erudite comes to mind.

To what does Burrage’s erudition amount – with particular reference to the nexus between three revolutions and three legal professions? Contemplating that question, I raise a few provisional queries ultimately related to one another. First, does Burrage’s singular focus on revolution marginalize other factors that figure in shaping lawyers’ associations in America, England, and France? In a generally glowing review of Lucien Karpik’s LES AVOCATS: ENTRE L’ETAT, LE PUBLIC, ET LE MARCHE XIIIe-Xxe (THE ADVOCATES: BETWEEN THE STATE, THE PUBLIC, AND THE MARKET FROM THE THIRTEENTH TO TWENTIETH CENTURIES), Burrage faults the author for failing to analyze the effects of the French [*78] Revolution on the French legal profession. Burrage writes:

In a sense, of course, [Karpik] cannot overlook the Revolution, since the arguments advocates deployed as spokesmen of the French people in the nineteenth century, and the passion they brought to the defense of their clients, were informed and inspired by the Revolution, as of course, were most of their clients’ offenses. Advocates could not therefore be anything but a postrevolutionary profession. However, the lack of explicit reference back to those events leaves a number of matters unexplored, and alternative hypotheses unstated.(Burrage 1999).

Similarly, one wonders whether, when seeking to explain the contemporary characteristics of American, English, and French legal professions, respectively, Burrage can “overlook” decisive circumstances and events preceding and following revolutionary convulsions? What other matters are unexplored, what alternative hypotheses unstated?

Second, what about a more nuanced notion of “politics”? Burrage acknowledges that “political events and decisions are of primary importance” (p.592) in explaining differences among these three legal professions; only to add immediately “in particular, the greatest political event in their histories, their revolutions” (p.592). It may, perhaps, be a matter of semantics, but are other defining political events and decisions precluded by Burrage’s use of words like “only” (p.592) and phrases like “revolutions . . . as the starting point . . .” (p.593)? As Stuart Scheingold observed in a different (albeit not unrelated) context:

[T]he conception of liberalism deployed by Halliday and Karpik is problematic . . . because it is confined to what they refer to as “political” liberalism – thus excluding the connections among legal professions, property, and capitalism. The underlying linkages between economic and political liberalism are . . . complex[.] . . . Indeed, it may well be those complexities that led Halliday and Karpik to anchor their theory solely in political liberalism. But this strategy ends up backfiring. The political and the economic are inextricably linked in the trajectory of liberalism; so, too, do they seem to be linked in the development of legal professions (Scheingold 1999).

Burrage chides Marx for corrupting his “brilliantly apt metaphor” (p.595) that revolutions were the “locomotives of history” to a general contention that it was the owners of locomotives that were the dynamic force (p.595). Does Burrage’s view of revolution amount to the same sort of simplification?

Third, what about culture? By culture, following the late, lamented Clifford Geertz and Ann Swidler, I mean the symbolic “templates,” “blueprints,” road maps that shape human action (Geertz 1973; cf. Swidler 1986). “Culture influences action through the shape and organization of [prefabricated links constructed of habits, moods, sensibilities, views of the world . . . into] a toolkit or repertoire . . . from which actors select differing pieces” (Swidler 1986). How can variations among the American, English, and French legal profession be explained without reference to the unique “tool kits” that guide collective action? Does revolution [*79] “trump” culture? Indeed, can differences wrought by revolution be thought of intelligibly in isolation from culture?

My questions reflect my ambivalence. Is REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION a brilliant example of Ockham’s razor, or a dazzlingly but reductionist effort? I have my doubts. I leave it to LPBR readers to arrive at their own conclusions.

REFERENCES:
Burrage, Michael, and Rolf Thorstendahl (eds). 1990. PROFESSIONS IN THEORY AND HISTORY: RETHINKING THE STUDY OF THE PROFESSIONS. London, England: Sage.

Burrage, Michael. 1999. “Review: Lawyers and Politics Escaping the Dead Hand of Rational Choice: Karpik’s Historical Sociology of French Advocates.” 24 LAW & SOCIAL INQUIRY 1083.

Ellis, Richard J. 1996. AMERICAN POLITICAL CULTURES. New York, NY: Oxford University Press.

Geertz, Clifford. 1973. THE INTERPRETATION OF CULTURES: SELECTED ESSAYS. New York, NY: Basis Books.

Halliday, Terence C., and Lucien Karpik (eds). 1997. LAWYERS AND THE RISE OF WESTERN POLITICAL LIBERALISM: EUROPE AND NORTH AMERICA FROM THE EIGHTEENTH TO TWENTIETH CENTURIES. New York, NY: Oxford University Press.

Halliday, Terence C. 1999. “Lawyers and Politics The Politics of Lawyers: An Emerging Agenda.” 24 LAW & SOCIAL INQUIRY 1005.

Hartz, Louis. 1955. THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION. New York, NY: Harcourt Brace.

Kloppenberg, James T. 2001. “In Retrospect: Louis Hartz’s THE LIBERAL TRADITION IN AMERICA.” 29 REVIEWS IN AMERICAN HISTORY 460.

Koch, Adrienne. 1955. “Review: THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION.” 42 MISSISSIPPI VALLEY HISTORICAL REVIEW 550.

Mowry, George E. 1955. “Review: THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION.” 61 AMERICAN HISTORICAL REVIEW 140.

Scheingold, Stuart A. 1999. “Review: Lawyers and Politics Taking Weber Seriously: Lawyers, Politics, and the Liberal State.” 24 LAW & SOCIAL INQUIRY 1061. [*80]

Smith, Rogers M. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New haven, CT: Yale University Press.

Swidler, Ann. 1986. “Culture in Action: Symbols and Strategies.” 51 AMERICAN SOCIOLOGICAL REVIEW 273.

Thorstendahl, Rolf and Michael Burrage, eds. 1990. THE FORMATION OF PROFESSIONS: KNOWLEGE, STATE AND STRATEGY. London, England: Sage.

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© Copyright 2007 by the author, James C. Foster.

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