LAW AND LEVIATHAN: REDEEMING THE ADMINISTRATIVE STATE

Vol. 31 No 1 (January) pp. 12-47

LAW AND LEVIATHAN: REDEEMING THE ADMINISTRATIVE STATE, by Cass R. Sunstein and Adrian Vermeule. Cambridge, Harvard University Press/Belknap Press, 2020. 208pp. Cloth $25.95. ISBN 9780674247536.

Reviewed by Paul Gowder, Northwestern University Pritzker School of Law. Email: paul.gowder@law.northwestern.edu

Sunstein and Vermeule offer, in LAW AND LEVIATHAN, a rule of law defense of American administrative law. Their interlocutors are a collection of scholarly and judicial critics of the American administrative state, such as Philip Hamburger, Gary Lawson, Richard Epstein, Judge Janice Rogers Brown, and Justice Neil Gorsuch. As that list suggests, Sunstein and Vermeule appear to be primarily concerned with defending the administrative state against libertarian/conservative (broadly speaking) critics. Sunstein and Vermeule label that school of administrative law critics “the New Coke” in reference to Edward Coke and the common lawyers’ resistance to Stuart power and to the tendency of some of those critics to equate the American administrative state to monarchical abuses like the Star Chamber. In this respect, it’s quite obvious that Hamburger (2014) looms large among those whom Sunstein and Vermeule are motivated to answer, as it is Hamburger who has focused most vigorously on the lessons to be gleaned from that period of English history.

The New Coke critics believe that the American framers had a vision of separation of powers drawn from Seventeenth Century English history, as well as from Montesquieu, and that the administrative state violates it. The touchstone of the New Coke, to the extent there is one, may be Madison’s statement in Federalist 47 that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

For Hamburger, Lawson, and others, American administrative law is in fact tyrannical—it is tyrannical because Congress is permitted to delegate legislative power to agencies through the rulemaking process, and judicial power through the power of agencies to make binding determinations of citizens’ legal rights—thus indeed unifying the three powers of government in the single hand of the President in his role as the ultimate manager of the administrative apparatus.

Sunstein and Vermeule directly address the New Coke only in Chapter 1, and then only to very briefly articulate the New Cokes’ fear of unconstrained executive power and sketch a few points toward the notion that those fears do not accurately represent the views of the constitutional framers. They do not directly engage with the arguments of any particular one of the critics of the administrative state. Instead, the bulk of the volume is devoted to a presentation of Sunstein and Vermeule’s positive case for the lawful character of administrative law. [*13]

That positive case begins with Lon Fuller. In THE MORALITY OF LAW, Fuller articulated 8 requirements which he took to represent the “inner morality of law”—morally advantageous features of governance that were, to Fuller, also requirements for a form of governance to be law-like at all. These requirements—which we can broadly summarize as prospective rather than retroactive general rules which are stable, clear and public, not internally contradictory (and hence capable of being obeyed), and actually corresponding to what officials enforce—have often been pressed into service by later scholars as a conception of the moral ideal of the rule of law.

Sunstein and Vermeule, over several chapters, argue that existing administrative law does a reasonably good job of corresponding to the Fullerian conception of the rule of law. A variety of judicially created doctrines—doctrines which, they argue, are at best only loosely rooted in positive legal enactments such as the Administrative Procedure Act’s (APA) prohibition against arbitrary agency action or the Due Process Clause, and more rooted in judges’ internal sense of the morality of law—have been layered on top of the textual sources of administrative law in order to promote its conformity with Fullerian standards.

For example, nothing in the APA prohibits agencies from making rules that apply retroactively, but such retroactivity raises obvious concerns with respect to the basic normative criteria underlying the rule of law: people cannot obey retroactive legislation, and retroactive legislation can unsettle expectations about the legal system on which private actors had previously relied. Accordingly, the Supreme Court, in BOWEN V. GEORGETOWN UNIVERSITY HOSPITAL, 488 U.S. 204 (1988) announced a new rule of legislative construction: administrative agencies would not be allowed to engage in retroactive rulemaking unless Congress clearly and specifically authorized retroactivity by statute. Notably, the Court did not announce this rule as an interpretation of the APA, because, Sunstein and Vermeule argue, it isn’t one. Nor did the Court rely on the Due Process Clause. Rather, the Court relied on the bald declaration that “[r]etroactivity is not favored in the law”—a fairly direct appeal to something like Fullerian principles.

THE DEMAGOGUE’S PLAYBOOK: THE BATTLE FOR AMERICAN DEMOCRACY FROM THE FOUNDERS TO TRUMP

Vol. 31 No. 1 (January 2021) pp. 8-11

THE DEMAGOGUE’S PLAYBOOK: THE BATTLE FOR AMERICAN DEMOCRACY FROM THE FOUNDERS TO TRUMP, by Eric A. Posner. New York: All Points Books, 2020. 310 pp. $28.99. Cloth ISBN 9781250303035.

Reviewed by Miguel Schor, Drake University Law School. E-mail: miguel.schor@drake.edu.

Eric Posner’s THE DEMAGOGUE’S PLAYBOOK: THE BATTLE FOR AMERICAN DEMOCRACY FROM THE FOUNDERS TO TRUMP is part of a remarkable stream of recent monographs focusing on democratic breakdown and erosion precipitated by the rise of populist authoritarianism in the United States and around the globe (Ginsburg and Huq 2018, Graber et al. 2018, Howell and Moe 2020, Lepore 2018, Levitsky and Ziblatt 2018, Mettler and Lieberman 2020, Mounk 2018, Norris and Inglehart 2019, Posner 2020, Przeworski 2019, Runciman 2018, Sunstein 2018, and Weyland and Madrid 2019). This literature grapples with the puzzle of how best to understand the challenge to constitutional democracy posed by charismatic leaders who rely on popular support to upend institutions. One strand of this literature is comparative and seeks to determine why so many polities around the globe are turning to populist authoritarianism. The other strand of the literature is focused on the United States and what the presidency of Donald Trump augurs for American democracy.

Posner’s THE DEMAGOGUE’S PLAYBOOK obviously belongs to the latter strand of this literature. The book begins with a clear and invaluable thesis. Posner argues that scholars need to resurrect the term demagogue. The term was important to the framers, but has been displaced in recent scholarship by the term populist authoritarian. Posner defines a demagogue as a “charismatic, amoral person who obtains the support of the people through dishonesty, emotional manipulation, and the exploitation of social divisions; who targets the political elites, blaming them for everything that has gone wrong; and who tries to destroy institutions . . . that stand in their way” (p. 9). Underpinning Posner’s definition is the contrast he draws between a statesman who reforms or builds institutions and a demagogue who destroys institutions as a means of cementing personalist rule.

Posner’s analysis is shaped by the critics of Athenian democracy such as Plato. The views of the framers of the Constitution were also shaped by democracy’s critics (Klarman 2016). Chapter 1 points out that the framers feared how demagogues throughout history mobilized popular support to tear republics apart. They understood that demagogues turn the “essence of democracy—its reliance on the wisdom of the people” into its “chief vulnerability” (p. 35). The solution, or so the framers believed, was to make it difficult for majorities to govern by erecting “numerous bulwarks against populist rule” (p. 52). The framers fashioned, as the historian Richard Hofstadter (1970) noted, the constitution against parties to solve the “problem” that majorities might pose to a representative democracy. [*9]

Posner argues that the design of the Constitution facilitated a struggle throughout American history between political elites and popular forces. Although THE DEMAGOGUE’S PLAYBOOK provides a sketch of this battle throughout American history, Chapter 3, entitled “The First Demagogue: Andrew Jackson” is critical. Posner argues that Jackson’s presidency “offers an opportunity to reflect on how populism operates” (p. 86). Jackson mobilized popular support—among those human beings in the United States entitled to vote—by attacking political elites as “corrupt.” Jackson did not believe in a legitimate opposition, treated criticism as a personal attack, and introduced the spoils system. The lynchpin of his political program was the destruction of the Bank of the United States which had baleful consequences for the economy. Jackson’s presidency, in short, rested on deepening political polarization, attacking and undermining institutions, and ensuring that key supporters could profit from the presidency.

OF COURTIERS AND PRINCES: STORIES OF LOWER COURT CLERKS AND THEIR JUDGES

Vol. 31 No. 1 (January 2021) pp. 4-7

OF COURTIERS AND PRINCES: STORIES OF LOWER COURT CLERKS AND THEIR JUDGES, by Todd C. Peppers (ed). Charlottesville: University of Virginia Press, 2021. 352pp. Cloth $39.95 ISBN 9780813944593. E-book $39.95 ISBN 9780813944609.

Reviewed by Mark C. Miller, Department of Political Science, Clark University. Email: mmiller@clarku.edu

The study of the role of law clerks is very difficult, in large part because clerks, especially those who worked for Supreme Court justices, usually sign confidentiality agreements which continue in force after the clerkship ends. Overcoming this obstacle, a new wave of systematic research on law clerks began when Todd Peppers (2006) published COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME LAW CLERK at almost exactly the same time as Artemus Ward and David L. Weiden’s (2006) SORCERERS’ APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT.Then Peppers and Ward (2012) teamed up to produce an edited volume, in which each chapter focused on the relationship of a specific Supreme Court justice and his or her clerks. Peppers and Cushman (2015) followed with another edited volume providing more stories about Supreme Court law clerks and their justices. Now, Peppers (2021) has produced another edited volume of stories about law clerks and their judges, but this time the chapters recite the experiences of law clerks for state supreme court judges, federal trial court judges, and U.S. Courts of Appeals judges. This new volume is a wonderful addition to this growing literature on the work of law clerks and their relationships with the judges who employed them.

Peppers has been involved in almost all of these projects. While studying law clerks is certainly difficult, he has provided some key lessons in each of these books. Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has written the foreword for this new collection of essays about law clerks and their lower court judges. To get a sense of the tenor of all five of these books, and especially this new addition, it is worth quoting Judge Wilkinson about his views on the relationship between clerks and the judges who employ them. As Judge Wilkinson notes:

From the perspective of the bench, clerks are family. If not sons and daughters, then certainly nieces and nephews. The marvelous recollections in this volume show the deep bonding between clerk and judge, the intergenerational communication that is equaled nowhere else in government, the education into the workings of an entirely co-equal branch, the opportunity to vitally contribute to the functioning of our indispensable judicial system, and the chance to become ambassadors for the values of that system long after the clerkship ends. All these are open to every clerk on every court, no matter what the perceived prestige of the judge or tribunal might appear to be (p. vii). [*5]

Among the chapters in this volume are stories about some of the pioneering first female judges on state supreme courts as well as some of the early judges of color on the federal bench.

SHORTLISTED: WOMEN IN THE SHADOWS OF THE SUPREME COURT

Vol. 31 No. 1 (January 2021) pp. 1-3

SHORTLISTED: WOMEN IN THE SHADOWS OF THE SUPREME COURT, by Renee Knake Jefferson and Hannah Brenner Johnson. New York: New York University Press, 2020. 287pp. ISBN: 978-1-4798-9591-5.

Reviewed by Tammy A. Sarver, Department of Political Science, Benedictine University. Email: tsarver@ben.edu.

“Had one woman served on the Court from the 1930s, or two or three or four women from the 1970s, with O’Connor as the fifth in 1981, the cases selected for review on the nation’s highest court surely would have been impacted ... Case outcomes also likely would have been impacted” (p. 169). If read out of context, this quote by the authors of SHORTLISTED might lead one to think that this work is another lamentation on the plight of women seeking to ascend to the higher echelons of political or corporate success without any offer or suggestion of hope. But SHORTLISTED is surely not that. This eloquently written and captivating story of the not insignificant number of women once considered to fill vacancies dating back to the 1930s on the U.S. Supreme Court aims to achieve not only the filling of the major gap in history of those women who ‘could have been’, but also offers strategies for changing the future course of “her-story” by acknowledging these women’s contributions in the struggle for gender equality.

Part I of SHORTLISTED provides an in-depth description of the women who almost had the honor to serve as a Supreme Court justice of the United States. From Florence Allen of whom there is evidence that she may have even been on President Coolidge’s shortlist as early as 1924 to Cornelia Kennedy who was shortlisted by both Presidents Ford and Reagan, we get a glimpse into the professional and personal lives of the women who were ultimately passed over in favor of men who oftentimes were less qualified or political pawns. Even with the confirmation of Sandra Day O’Connor in 1981, the authors point out, “her nomination marked the beginning of a new chapter in a decades-old saga of persistent gender inequality” (p. 101). Ronald Reagan had the opportunity to fill two more vacancies on the Supreme Court after O’Connor’s appointment and he shortlisted Cynthia Holcomb Hall, Edith Jones, and Pamela Rymer. All these women had impeccable credentials and intelligence, but he ultimately appointed two more men. This trend of shortlisting women continued for the next decade until Ruth Bader Ginsburg was added to the Court in 1993.

Part II of SHORTLISTED further explores the personal and professional lives of the exceptional women who could have had a seat on the Supreme Court. Not only does this in-depth exploration of the shortlisted women’s lives provide for an enjoyable read, it also serves to set the stage for lessons to those in power regarding the need to make structural change and suggestions for doing so – not just only on the U.S. Supreme Court, but in all positions of leadership and power. In Part II, the authors highlight the dangers of tokenism, which is a term they use to describe many of the women who were shortlisted, as well as describing many of the women who actually do ascend to positions of prominence still today. Arguing that tokenism enforces the status quo, leaves one or a few individuals as representatives of diverse minority communities, and exacerbates workplace inequities and incidences of sexual harassment, the authors relate their claims to the obsessive [*2] and unfair societal focus that was (and continues to be) placed on the shortlisted women candidates’ appearances, sexual orientations, ages, and decisions whether or not to have children. Focusing on these double binds, the authors find hope as they write that “Our goal is not to criticize, but instead to find inspiration from our shortlisted sisters as we extract lessons for remedying the remaining gender inequality that persists in positions of leadership and power” (p.142). Noting that these shortlisted women did not always have everything in common simply by virtue of being women, the authors admit the tensions between feminism and racism, motherhood and career, typical versus atypical personal relationships, and even the question of what a woman is to look and dress like. In so doing, they state what most women already know: a perfect work/life balance may never be achieved, but only managed. By exposing these contradictory demands that have historically been placed on women, the authors hope that society can turn its focus away from women’s attributes and life choices and toward their objective qualifications and professional skills.

LIGHTING THE WAY: FEDERAL COURTS, CIVIL RIGHTS, AND PUBLIC POLICY

Vol. 30 No. 11 (December 2020) pp. 170-177

LIGHTING THE WAY: FEDERAL COURTS, CIVIL RIGHTS, AND PUBLIC POLICY, by Douglas Rice. Charlottesville: University of Virginia Press, 2020. 201pp. Hardcover $39.50. ISBN: 9780813943947.

Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email: rcblack@msu.edu.

Pop quiz, hot shot: It’s the end of the semester in your judicial politics class and, if your syllabus looks anything like mine, it means you’re covering the topic of judicial impact. Is it perhaps strange to conclude the class with a question that might render the preceding fifteen weeks moot? Absolutely, but that’s not important right now. What is important, is that Douglas Rice’s LIGHTING THE WAY has put together a nice and compact book that breathes new life into the perennially important and longstanding question of whether the federal judiciary can uniquely influence public policy. So, when Dennis Hopper calls you up and asks “what do you do?” in this increasingly absurd hypothetical that I’m spinning out to try to get you to read this review, well, now you know: It’s time to add Rice’s LIGHTING THE WAY to both your class content as well as your preferred citation manager program.

I reach this conclusion because Rice offers at least two new innovations that advance the literature and make LIGHTING THE WAY a book that needs to be taught about as well as cited in your own work. The first advancement is that Rice approaches the judicial impact topic from the perspective of issue attention. As he puts it, “Policymakers have limited time and resources. In allocating some of their finite time and resources to an issue, they change the probability that we might observe policy change” (p. 5). This is a concept that is probably quite familiar to your public policy colleagues since that is where it originates. It is one, however, that hasn’t been regularly examined by us law and courters. Moreover, it turns out that those in public policy have, in general, returned the slight by giving comparatively short shrift to examining the judiciary (but see Grossmann and Swedlow 2015 for a noteworthy exception). What this means, then, is that LIGHTING THE WAY is one of those rare books that actually has something to say across different subfields.

The second major innovation that Rice’s LIGHTING THE WAY brings us derives from the actors he examines. The most prominent studies of judicial impact tend to focus on the activity and action of the U.S. Supreme Court (e.g., Rosenberg 1991, 2008; Hall 2010). By contrast, Rice’s efforts shine a particularly strong light on the activity of the federal district and circuit courts. Thus, those who frequently bemoan our field’s singular focus on the Supreme Court will find LIGHTING THE WAY to be quite refreshing in just how much it has to say about the impact of the lower federal courts. Rice examines overall federal judicial issue attention on the issue attention of the rest of the policy-making system, but also analyzes how the lower courts impact the issue attention of the Supreme Court (and vice versa).

[*171] But, c’mon, skip to the chase! What camp does Rice and LIGHTING THE WAY end up in? Are we talking pro-Rosenberg, pro-Hall, or something else? Fine, I’ll spoil it for you, but I’d like it noted for the record that I’m only doing so under duress. Rice finds that “courts – long understudied by and underincorporated into studies of policymaking – exert important influence at the most fundamental stage of policymaking: determining whether to pay attention to an issue” (p. 4). However, this influence is not uniform or otherwise unconditional. Rather, Rice theorizes, tests, and finds support for a conditional theory of influence. In particular, he argues that influence is going to vary across policy area and will only occur if there is both a political constituency for the area and a constitutional power of the courts to act in that area. More on those below, but Rice’s brass-tacks answer to LIGHTING THE WAY’s motivating question is (a theoretically motivated) “Yes, but it depends.”

THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY

Vol. 30 No. 11 (December 2020) pp. 165-169

THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY, by David E. Pozen (ed.). Columbia University Press. 408pp. Paper $30.00. ISBN: 9780231551991.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: RushM@wlu.edu.

THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY by David Pozen is an important collection of essays—actually, they are essays grouped into seven discrete, but interrelated conversations—on how technology has transformed the scope and definition of speech rights. The principal conclusion one draws from the collection is that the advent of the internet, social media, cyberspace, etc. has precipitated a paradigm crisis akin to what Thomas Kuhn discusses in THE STRUCTURE OF SCIENTIFIC REVOLUTIONS. But, this paradigm crisis in science has caused a separate one in the law. Technology’s democratization of access to and the capacity to produce information has rendered traditional, “terrestrial” notions of liberty and rights less useful if not outright antiquated. Human interactions on terra firma are more limited and easily measurable than they are in the essentially infinite “confines” of cyberspace.

THE PERILOUS PUBLIC SQUARE is, therefore, somewhat mis-titled. The discussions do not simply address threats to free expression. In addition, it is clear that technology has amplified the damage that speech can cause and has altered the traditional manner in which freedom of speech is studied. Speech conflicts are frequently (or, perhaps, have traditionally been) cast in terms of vertical confrontations between the generic dissenter and a government wishing to control the dissenter’s speech and horizontal ones in which the government is called upon to referee conflicts between speakers and those they have harmed through libel, fraud, etc. The conversations in THE PERILOUS PUBLIC SQUARE demonstrate that governmental suppression of dissent is much less of an issue in a cyberworld populated by countless, anonymous sources of fake news and deep fakes. Instead, government is clearly outgunned despite that fact that its role as referee is more necessary as a result of the incalculable, instantaneous damage that those countless, anonymous actors can inflict.

This challenge is addressed especially well in the discussion of Frederick Schauer’s “The Hostile Audience Revisited” in Chapter 2 (“From the Heckler’s Veto to the Provocateur’s Privilege”). Managing such confrontations on terra firma requires grace and good judgment on the part of government officials. In cyberspace, it requires potentially infinite resources since the scope of a cyberconflict is, potentially…infinite.

So, a short review of THE PERILOUS PUBLIC SQUARE could be reduced to a statement as simple as something to the effect of: “Surprise! The utopia envisioned [*166] by John Perry Barlow in his “Declaration of the Independence of Cyberspace” (1996) has deteriorated into dystopia just as quickly and unceremoniously as any other utopia.” The contributors in THE PERILOUS PUBLIC SQUARE look to address (but really do not yet come close to answering) the followup question: “What are we going to do about it?”

In the space of a review, it is neither helpful nor possible to offer a synopsis of each of the seven conversations. Nor is it possible to do justice to the contributions made by some three dozen thinkers who represent a sizable part of the cutting edge of scholarship in this area. Instead, I offer an overview of the principal themes that animate and unite the collection. Perhaps the most common theme addresses whether the First Amendment is obsolete in cybertimes. This is the topic of the opening discussion between Geoffrey Stone and Rebecca Tushnet. Their exchange reads like a scorecard of the new battles confronting scholars of, practitioners of and in, and innocent bystanders and sufferers of collateral damage in and from cyberspace and social media.

INTERNATIONAL COURT AUTHORITY

Vol. 30 No. 11 (December 2020) pp. 161-164

INTERNATIONAL COURT AUTHORITY, by Karen J. Alter, Laurence R. Helfer and Mikael Rask Madsen (eds.). Oxford: Oxford University Press, 2018. 496pp. Cloth $105.00. ISBN: 9780198795582. Paper $42.95. ISBN: 9780198795599.

Reviewed by Henry F. (Chip) Carey, Department of Political Science, Georgia State University. Email: hcarey@gsu.edu.

The remarkable and pathbreaking book, INTERNATIONAL COURT AUTHORITY, is based on world-class scholars convening in several sets of workshops to develop conceptual working papers. It provides a conceptual framework to evaluate key functions and effects of international courts (ICs). These are regional and multilateral/global law tribunals for prosecuting crimes or adjudicating international trade law and human rights violations in a comparative perspective. The three primary traits analyzed are one primarily exogenous factor, context, and two combined exogenous and endogenous factors, authority and power. The social science analysis used focus on what lawyers consider de facto legal rule, rather than the legal approach adopting de jure evaluations of what is the law. The social science analysis the authors use focuses on what lawyers consider de facto legal rule rather than de jure evaluations of the law. To some extent, this approach is distinguished from different sets of public law concepts, political versus analytic jurisprudence, or attitudinal research on judicial decision-making. The concern here is how and why those actors interacting with these courts respond. It asks how behavior is changed, based primarily on the Weberian concept of authority and its sociological analyses of the role of law and courts, and then evaluating how those who come before the courts respond to their decisions. The conclusions from the book’s impact analysis do not extend more broadly on the public. We certainly learn much more about the contextual factors that shape how laws are actually understood and implemented. This is a challenging, if not audacious, attempt for a worldwide survey, given the size and variation in world contexts along with the varying missions, traits, and age of the courts themselves.

Legalization, as formulated by Abbott, et al. (2000), is arguably the primary conceptualization of not only these courts endogenous traits but also their impacts on international politics and society. This is particularly the third IV, delegation. However, this book advances its first two IVs, obligation and precision variables, both of which can be understood in de jure and de facto terms but were only developed over two decades ago in de jure terms.

The framework adopted from a dozen case studies posits that direct stakeholders in litigation (“narrow authority”) are the primary context, followed by similar actors with the same potential conflicts (“intermediate authority”). More general civil society actors in academia are the legal profession and industry associations (“extensive authority”). States are seen as veto players, not as reinforcers of legal obligation, legitimacy, and authority. All four of these levels of authority are interdependent. They are prone to complex views of the courts, not simply accepting or rejecting authority, but obeying or disobeying court orders in whole or in part. They do this not only with their own agency, but also to the extent that the other three levels of authority reinforce court judgements, are indifferent to [*162] them, or reject all or part of these decisions. reinforced or indifferent or rejecting part or all of these aspects of any court judgment. The interdependent role of the state, which is undertheorized in this study, can often be a primary factor in reinforcing court judgements. This occurred at the height of the liberal international order, following both the end of World War II and then beginning in the late Cold War under the Bush-Gorbachev New International Order. The implicit conclusion of the study is that courts are quite different from other forms of multilateralism. Instead, they are more similar to supranational organs like the European Parliament or Commission, the Parliamentary Assembly and Council of Ministers of the Council of Europe, and the secretariats of the EU, the UN, the OAS and the African Union. Moreover, courts are also implicitly different from intergovernmental organizations that represent the interests of states more than those representing the international organizations, like the UN Security Council and General Assembly.

Some of the fascinating case studies support the model presented by the editors and authors, but others do not. Certainly, the role of states in the Caribbean Court of Justice are influential in emphasizing the member states’ interests in controlling drug trafficking demonstrates the authority of that court is dependent on fulfilling that political goal. According to Caserta and Masken (see Chapter 7), the Court is more focused on establishing autonomy, first from the Judicial Committee of the Privy Council (JCPC), which had been the highest court in the common law world of many English post colonies. As the court became independent it began establishing laws governing both the court’s role as an appellate body from national courts that have left the JCPC as well as original jurisdiction of the revised treaty of Chaguaramas, which governs the Caribbean Community (known as CARICOM). These small states from the Commonwealth Caribbean like Belize and Guyana have been held liable for election irregularities. It is interesting to compare this court’s independence from main human rights court, the JCPC from which it departed, with the Court of Justice of the European Union (ECJ), which chose to adopt the jurisprudence of the European Court of Human Rights (ECHR), which is the judicial organ of the Council of Europe.

The number and geographic reach of the courts in this volume is quite extraordinary. There is possibly no better study of such courts, ranging from the transnational (viz., the International Criminal Court (which the Trump administration has attempted to sanction because of its investigation into US war crimes)), the International Court of Justice and Islamic Law, the World Trade Organization’s Dispute Settlement Body (which since this book’s publication, is threatened with extinction by the failure of the Trump administration to appoint appellate judges), regional courts in the Americas (the aforementioned CCJ, the Andean Tribunal of Justice, and the InterAmerican Court of Human Rights), Europe (the ECHR, and the ECJ) and Africa (the East African Court of Justice, the ECOWAS Community Court of Justice, the OHADA Common Court of Justice, and the SADC Tribunal). Space limitations in this review prevents a detailed discussion of these individual courts. Not included, for example, are the African Court of Human and Peoples Rights, the International Tribunal for the Law of the Sea, or the ASEAN Intergovernmental Commission on Human (which admittedly is not a court, though one could argue that the non-compliance and impunity of Russia with the ECHR rulings on matters like its violent human rights violations in the Caucuses, or the US impunity for torture before the same court [*163] (the US has observer status in the CoE and is therefore a defendant), suggests that courts without authority on at least some issues may not be altogether than commissions, such as the InterAmerican Commission on Human Rights)).