THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAWYERS AND THE REMAKING OF AMERICAN GOVERNMENT

Vol. 27 No. 3 (April 2017) pp. 49-52

THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAWYERS AND THE REMAKING OF AMERICAN GOVERNMENT, by Jefferson Decker. New York: Oxford University Press, 2016. 284 pp. Cloth: $99.00. ISBN: 9780190467302. Paperback: $29.95. ISBN: 9780190467319.

Reviewed by Amanda Hollis-Brusky, Department of Politics, Pomona College. Email: amanda.hollis-brusky@pomona.edu.

Jefferson Decker’s THE OTHER RIGHTS REVOLUTION is the latest addition to a growing body of literature on the rise and influence of the conservative legal movement (Teles 2008, 2010; Southworth 2008; Hollis-Brusky 2011a, 2011b, 2013, 2015; Staszak 2015). Drawing on an impressive array of archival sources, Decker tells a careful and richly detailed political history of how lawyers and legal organizations from the American west played a pivotal role in the foundation and ideological direction of the conservative legal movement. Using detailed case studies of three conservative public interest law firms – the Pacific Legal Foundation (PLF), the Mountain States Legal Foundation (MSLF) and The National Legal Center – Decker shows how a set of distinctly western ideas and legal strategies “went national” (p. 7) in the 1980s with the presidential election of former California Governor Ronald Reagan.

Thoroughly researched and lucidly written, THE OTHER RIGHTS REVOLUTION offers a novel interpretation of the rise of conservative legal movement - one that centers a different set of actors, ideas and institutions than has previous work in this area and, in doing so, makes a valuable contribution to the origin story of this movement. It also gives the reader a close-up perspective on the challenges and opportunities movements face in building a “support structure” (Epp 1998; Hollis-Brusky 2011a) for legal mobilization, and why this matters. While the deep-dives into the internal histories, organizational memos and professional trajectories of the dozens of actors involved in the case studies featured in THE OTHER RIGHTS REVOLUTION might make it difficult for the otherwise uninitiated to follow (read “undergraduates” here), this book is an absolute must-read for scholars and graduate students doing work in this area.

The bulk of Decker’s political history spans the time period from 1971 to 1985. During this time period, as Steven Teles (2008) first chronicled, the conservative legal movement underwent an intentional and strategic period of elite institution building – investing in think tanks, public interest law firms, academic appointments and campus organizations such as the Federalist Society for Law and Public Policy Studies. Decker, like other scholars before him, shows how documents such as the “Powell Memo” (39-54) and the “Horowitz Report” (119-122) inspired a wave of institution building designed to counter-balance the legal and political influence of the liberal elite.

But THE OTHER RIGHTS REVOLUTION’S unique contribution comes in recognizing and chronicling how the form and direction of this conservative institution-building movement that made its way to Washington, D.C. was shaped and influenced by ideas and actors from the American west. Specifically, Decker illustrates how the anti-regulatory agenda that became synonymous with the Reagan administration was initially developed by western public interest law firms responding to local legal battles between business development and environmental preservation (p. 7). A particularly vivid and fascinating example of this is Decker’s retelling of the “Sagebrush Rebellion” of the late-1970s, where a group of Western representatives, business interests and organizations, “unhappy with the federal management of public lands” (p. 86) began to challenge the legal basis for federal ownership of those lands in court (pp. 86-94). Decker shows how the alliances these cases built between conservative interests and public interest law firms and the novel “intellectual capital” (Hollis-Brusky 2013, 2015) these groups developed to support their legal claims translated into a shared “constitutional vision” that these groups would later take to Washington, D.C. to help the Reagan administration “rein in the federal regulatory Leviathan” (p. 94).

U.S. SUPREME COURT OPINIONS AND THEIR AUDIENCES

Vol. 27 No. 3 (April 2017) pp. 47-48

U.S. SUPREME COURT OPINIONS AND THEIR AUDIENCES, by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth. Cambridge, United Kingdom: Cambridge University Press, 2016. 185pp. ISBN: 978-7-107-13714-1.

Reviewed by Michael A. Bailey, Colonel William J. Walsh Professor, Department of Government and McCourt School of Public Policy, Georgetown University. Email: Michael.Bailey@georgetown.edu.

Every professor has read essays by students who, well, don’t know what they are talking about. These essays ramble on with long, convoluted sentences and non-sequiturs. These papers are usually finished after 3 am, early in the morning the day the paper is due. In their own way, these papers eloquently testify to the how ill prepared the student was for the assignment.
Black, Owens, Wedeking and Wohlfarth’s U.S. Supreme Court Opinions and Their Audiences allows us to cast a similar eye on what the Supreme Court does. Based on extensive and sophisticated statistical analysis they are able to learn about Supreme Court goals and behavior based on the clarity of the “papers” (opinions) that justices write.

The authors posit that justices write opinions in order to enhance compliance with their decisions and to manage public support for their rulings. Just as I knew that things were getting serious when my mother would e-nun-ci-ate her requests very clearly, so too, the authors argue, should the lower courts and other actors take more seriously Supreme Court opinions that are clearly presented. On the other hand, when the Court is a bit sheepish about what it is doing, it may obfuscate with long sentences, legal jargon and impenetrable prose.

The book revolves around an extensive coding of Supreme Court opinions based on their readability. There are many ways to assess readability and in order not to lean too heavily on a single measure, they factor analyze a large number of different automated coding measures. These measures are based on things like words per sentence and syllables per word. Black, Owens, Wedeking and Wohlforth show that these measures predict comprehension and expected compliance when a sample of undergraduates were asked to read cases of varying readability.
The book assesses a broad range of hypotheses related to the book’s core prediction that justices will be clearer when they should be most worried about compliance. The authors find that Supreme Court justices write more readable opinions when the circuit courts are more dispersed, suggesting they are trying harder to keep lower courts in line. Supreme Court “justices write clearer opinions when ruling against a lower quality agency” (p. 157). They also tend to write clear opinions when dealing with less professionalized states.

The results are quite strong across virtually every test. This is impressive because there is at least some slippage between the theoretical concept of writing to ease enforcement and writing to be readable. For example, a court interested solely in enforcement could articulate a “bright line” test. Even if they do this in an insufferably pompous way, lower courts, the police and everyone else will have a hard time sidestepping the court’s mandate. On the other hand, I could imagine some cases in which the Court could write a very readable, yet legally ambiguous, opinion. A justice could juice his or her readability score by sneaking a Harry Potter book into an opinion, yet this would, I suspect, do little to enhance legal clarity.

JUDICIAL POLITICS IN POLARIZED TIMES

Vol. 27 No. 3 (April 2017) 44-46

JUDICIAL POLITICS IN POLARIZED TIMES, by Thomas M. Keck. Chicago: University of Chicago Press, 2014. 352 pp. Cloth $89.00. ISBN: 978-0-226-18238-4. Paper $27.50. ISBN: 978-0-226-18241-4.

Reviewed by William R. Wilkerson, Department of Political Science, SUNY Oneonta. Email: bill.wilkerson@oneonta.edu.

Placing the role of courts, especially the U.S. Supreme Court, in this polarized era of American politics is no easy thing. Thomas Keck tells us that there are three “stories” that seek to explain the role of courts in our political system. The first story is that judges are umpires, impartially deciding cases that come before them. The second story, in direct opposition to the first, is that judges are partisan judicial activists deciding cases based on their personal beliefs unaccountable to the public. The third story, coming primarily from the scholarly community, is that the decisions judges make do not matter that much. As Keck notes, this story asserts, “[I]n the long run, federal judges are unlikely to impose limits on the popular will—either for good or ill….” (p. 4). And state judges are even less likely to thwart the electorate. In this book, Keck sets out to assess these stories by examining four of the most controversial policy areas currently before the courts and the American polity: abortion rights, LGBT rights, affirmative action and gun rights.

Litigation in the four policy areas from 1993 through 2013 is examined in Part I. In selecting issues, he has chosen two areas where litigation has been moved by liberals—abortion rights and LGBT rights—and two by conservatives—affirmative action and gun rights. Keck has taken a notably broad perspective on litigation, focusing on any case intended to move policy goals forward not simply on doctrine in a particular area. He examines three broad strategies that invite litigation: stopping newly created policy changes that they oppose, asking courts to expand rights by striking down existing policy and asking courts to support efforts at democratic change such as initiatives and referenda. For example, he studies not only cases aimed at striking down anti-same sex marriage (SSM) actions such as California’s Proposition 8 on state constitutional grounds, but also litigation aimed at striking down consensual sodomy criminal statutes culminating in LAWRENCE V. TEXAS (2003), and lawsuits seeking to use courts to facilitate initiatives to ban SSM through the ballot in several states where petition requirements were not met. Litigation before the U.S. Supreme Court is noted in detail, but so too is litigation before state high courts and the U.S. Circuit Courts of Appeals. Interest group litigation and private lawsuits are each highlighted throughout and at times we see them working in consort while elsewhere lawsuits are at cross purposes. In taking this broad perspective we see that in each of these four areas litigation is used by advocates on both sides of the political spectrum, underdogs and overdogs, regardless of which party is in control of the executive and legislature on both the federal and state level. It is hard to do justice to the detail and subtlety of these four case studies. They stand alone as a significant scholarly accomplishment.

Part II of the book uses the case studies developed in Part I to evaluate the three stories. As with the case studies, the analyses of these three stories are deep and nuanced, each including a detailed literature review. In Chapter 3 Keck examines whether judges act as umpires. Much attention is focused here on the voting behavior of appellate judges, comparing the voting behavior of Republican and Democrat appointees in the four policy areas over time and by the types of cases. He also compares Court of Appeals voting behavior to voting by U.S. Supreme Court justices and members of the U.S. House of Representatives and the U.S. Senate. Overall, Republican appellate judges voted about evenly for conservative and liberal positions (51.5% liberal), while Democrat voting was heavily skewed toward liberal positions (84.4%). No consistent pattern emerges over time, the percentage point differences between Democrat and Republican judges do not notably change over in the two decades the book examines. It is interesting to note that the percentage point differences between Democrat and Republican support for the liberal position grows during the second terms of the Clinton and Bush presidencies—41.5 and 45.3 respectively—in comparison to the three first terms of Clinton, Bush and Obama with differences of 27.1, 26.9 and 28.0.

FOUCAULT AND THE POLITICS OF RIGHTS

Vol. 27 No. 3 (April 2017) pp. 42-44

FOUCAULT AND THE POLITICS OF RIGHTS, by Ben Golder. Stanford, CA: Stanford University Press, 2015. 264 pp. Cloth $85.00. ISBN: 9780804789349. Paper $24.95. ISBN: 9780804796491.

Reviewed by Mark G. E. Kelly, School of Humanities and Communication Arts, Western Sydney University. Email: m.kelly@westernsydney.edu.au

Michel Foucault offered his thought as a ‘toolbox’ and it’s been taken up as such enthusiastically throughout the humanities and social sciences, with references to him becoming ubiquitous. It is rare, however, to encounter a scholar who engages with Foucault closely enough to enter into the spirit of his thought and understand his methodology from within. The discipline of legal studies is fortunate indeed now to have such a figure in Ben Golder.

Golder’s book, his first sole-authored monograph, concerns itself with a paradoxical corner of Foucault’s thought, namely his employment relatively late in his life of the vocabulary of human rights. This loose thread has become an object of contention in recent years, with both critics and supporters of Foucault seizing on it to suggest that Foucault was more liberal than he might have seemed, threatening to unravel the apparent distinctiveness of his position in the process. Golder attempts to halt this unraveling by showing how Foucault’s invocation of rights is compatible with his broader intellectual project. The conceptual stitch Golder uses here is the notion of human rights as a ‘critical counter-conduct’ – a phrase that, as far as I can work out, Foucault himself never uses verbatim, but which does successfully describe Foucault’s approach in this regard. Golder understands Foucault’s true methodological orientation, specifically his foreclosure of the possibilities of theoreticisation and normativity, framing it entirely accurately and adequately, in terms of an absolute commitment to critique.

The crucial thing that Golder, unlike so many commentators, understands in light of this is commitment is that Foucault’s talk of ‘rights’ does not betoken liberalism. I’m tempted to accuse Golder’s book of resembling a sledgehammer designed to crack a nut here, given how ‘unlikely’ (as Golder puts it) the contrary thesis is, but the misinterpretation of Foucault – on this as on other points – currently threatens to crowd out his thought itself, such that the kind of monumental counterattack Golder provides is surely necessary.

Golder (p. 6) argues that Foucault’s sudden and surprising turn late in his life to invoking the notion of human rights cannot be taken to imply a change in position, since he previously had simply never said anything about the topic. However, if Foucault had never spoken about ‘human rights’ as such before, he had nonetheless notoriously pronounced a negative opinion on the ‘human’ over a decade before, and been suspicious of the language of ‘right’. When Foucault invokes the notion of human rights, it is not, however, as so often among philosophers, a question of endorsing the transcendent validity of rights claims, but rather a ‘tactical’, contextually bounded intervention.

PLUTOCRATS UNITED: CAMPAIGN MONEY, THE SUPREME COURT, AND THE DISTORTION OF AMERICAN ELECTIONS

Vol. 27 No. 2 (February 2017) pp. 39-41

PLUTOCRATS UNITED: CAMPAIGN MONEY, THE SUPREME COURT, AND THE DISTORTION OF AMERICAN ELECTIONS, by Richard L. Hasen. New Haven and London: Yale University Press, 2016. 256pp. Cloth $32.50. ISBN: 9780300212457. Paper $22.00. ISBN: 9780300223545.

Reviewed by Alex Keena, Department of Political Science, University of Richmond. Email: akeena@richmond.edu.

What are the dangers of money in American elections? How has the Supreme Court balanced the threat of political corruption with free speech? Can campaign finance law adequately promote the values of political equality and anti-corruption without infringing upon political speech? Richard L. Hasen explores these topics and others in his timely analysis of campaign financing in a post-CITIZENS UNITED world.

Hasen’s analysis is at once nuanced and accessible, and he provides a coherent and forceful argument for dramatic reform of federal campaign finance law based on a joint system of publicly-funded campaign vouchers along with maximum contribution limits. The result is a system that promotes, rather than represses, political speech by expanding access to campaign giving, and prevents the appearance of political corruption by imposing reasonable limits on individual contributions.

While Hasen’s argument is provocative and compelling, the strength of PLUTOCRATS UNITED is undoubtedly his analysis and assessment of the legal debate that has evolved on the topic of campaign finance law both within the courts and among reformers since the 1970s. As Hasen asserts, this debate has centered on the conflict between political corruption and free speech and has largely ignored the effects of campaign spending on political equality and fairness. Hasen traces this debate to the Supreme Court’s hostility toward political equality as a legitimate end for restricting political speech through campaign expenditure limits. Because the Court has appeared more sympathetic to campaign finance restrictions that serve the interest of promoting “anti-corruption” (at least until recently), the debate among reformers has centered on mitigating the supposed corrupting influence of money in elections.

But as Hasen persuasively argues, in avoiding the defense of political equality as a legitimate rationale for campaign restrictions and by doubling down on the goal of preventing corruption (or the appearance thereof), supporters of campaign finance reform have overlooked the most troubling consequences of unrestricted political spending: its unequal effects on political access and influence. To this end, Hasen challenges the core assumption, which is often repeated by reformers and politicians on the left, that money corrupts politicians and “buys” elections. In Chapter 2, he presents a systematic and comprehensive review of the scholarship on the actual effects of campaign money and finds that there is little evidence to support such claims. For one, lots of money is poured into elections in support of both Democrats and Republicans. As a tactic for winning elections, spending big does not appear very effective. Second, there is little evidence that politicians switch their votes in exchange for contributions. After all, the limits on contributions to candidates from individuals and committees are such that few politicians would risk their career or their electoral security in exchange for a single donation of a few thousand dollars.

But what money does buy is political access, and this is precisely why the “anti-corruption” defense is both misguided and insufficient as a justification for campaign finance regulation. As congressional campaigns have become increasingly expensive to run, members of Congress must devote more of their time soliciting donations and asking for money, and as a consequence, more of their attention toward [*40] donors. In this regard, the campaign finance status quo exasperates the unequal access and attention that donors receive above everyone else. Although this set of arrangements does not fit the classic mold of “corruption,” it suggests equally troubling consequences for democracy. In essence, the ability to donate money to a campaign determines one’s ability to access political representation, and because money is critical to running a campaign, it biases the candidate selection process toward the candidates who serve the interests of the wealthy and affluent.

AT THE CROSS: RACE, RELIGION, AND CITIZENSHIP IN THE POLITICS OF THE DEATH PENALTY

Vol. 27 No. 2 (February 2017) pp. 36-38

AT THE CROSS: RACE, RELIGION, AND CITIZENSHIP IN THE POLITICS OF THE DEATH PENALTY, by Melynda J. Price. New York: Oxford University Press, 2015. 220 pp. Hardcover $99.00 ISBN 978-0190205539. Paper $27.95 ISBN 978-0-19-020554-6.

Reviewed by Jolly A. Emrey, Department of Political Science, University of Wisconsin-Whitewater. Email: emreyj@uww.edu.

In AT THE CROSS: RACE, RELIGION, AND CITIZENSHIP IN THE POLITICS OF THE DEATH PENALTY, Melynda J. Price examines the intersectionality of race, gender, and religion with respect to attitudes about, and narratives surrounding, the death penalty. She examines how the politics of the death penalty both shapes African Americans’ understanding of citizenship and constrains their political participation. The author begins using two “concrete” death penalty cases from Texas to frame her analyses: Gary Graham and Karla Faye Tucker. The politics surrounding the Graham and Tucker executions, particularly attempts to stay their executions or commute their sentences, illustrate how race, gender, and religion factor into framing perceptions of death row inmates. In particular, Price provides a rich, descriptive narrative about stereotypes that envelop and influence public perceptions of black males in the criminal justice system compared with white females. While this may not appear novel on its face, the introduction of religion and “jail house” religious conversion of the convicted, coupled with race, does take this argument and analysis to a more nuanced level. More broadly, Price seeks to provide systematic evidence that the death penalty is an important factor that shapes how African Americans view their political citizenship in the United States, especially for those living in the metropolitan area of Houston, Texas where death penalty cases are frequently adjudicated. Price uses a mixed-methods approach including focus group interviews, quantitative methods, and analytic narrative to understand better the differences in attitudes about the death penalty among and across subgroups. This well-written book provides multiple theoretical lenses through which to understand these complex relationships surrounding the politics of the death penalty.

Chapter 1 introduces the author’s examination of race, religion, and the death penalty through a discussion of the Gary Graham and Karla Faye Tucker cases. The author identifies these as “concrete” cases given their media profiles, common factors that they share, and more importantly, factors where they diverge. The interpretations surrounding these divergent factors are influenced by historical treatment of race and gender in the United States. The author also includes a thoughtful discussion of innocence in different contexts, including legal and social, that frames attitudes blacks and whites have about the death penalty generally, and the Graham and Tucker cases specifically. With respect to religion, she finds that race and gender mediate perceptions about redemption, and these perceptions vary within racial communities and in media coverage of the two cases.

Chapter 2 contributes to our understanding of racial discrimination and the death penalty by focusing on race, death qualified juries, and BATSON challenges. Price begins this chapter discussing the democratizing features of juries in the United States. She notes the common theoretical arguments about lay jurors bringing to the courtroom their community and contemporary values when determining guilt and punishment for the accused. At the same time, she examines aspects of historical and contemporary treatment of African Americans with respect to jury selection and jury participation. This chapter includes two threads that are worth [*37] highlighting. First, the author’s discussion of the impact of BATSON on mitigating racial basis in jury selection adds to existing scholarship that has determined BATSON to be a fairly ineffective tool, especially with regard to reducing racial bias and creating greater inclusion of African Americans as death qualified jurors. The author’s discussion of “Batson” hearings and the challenges to overcoming explicit and implicit bias with preemptory challenges is exceptional and adds to our understanding of BATSON specifically and to our understanding of impact studies of Supreme Court rulings in general. Secondly, Price notes that it is not simply a problem with the test and its application. She includes a discussion in this chapter that illustrates well its flaws in this regard, but extends her analysis to additional obstacles African Americans face during the jury selection process. For example, in a community like Houston, Texas, African Americans are more likely than not to have previous negative interactions with law enforcement and to have close friends or family members who have been through the criminal courts and incarcerated. These experiences and relationships may be revealed during the selection process that results in weeding out many African Americans and limits opportunities for jury service. Price adds that African Americans share an “ambivalent” attitude toward the death penalty that includes a distrust of the state and the criminal justice system given historical and contemporary treatment. With this connection, the author begins to lay the foundation for the linkages she explores in subsequent chapters.

CONSTITUTIONAL COURTS AS MEDIATORS. ARMED CONFLICT, CIVIL-MILITARY RELATIONS, AND THE RULE OF LAW IN LATIN AMERICA

Vol. 27 No. 2 (February 2017) pp. 32-35

CONSTITUTIONAL COURTS AS MEDIATORS. ARMED CONFLICT, CIVIL-MILITARY RELATIONS, AND THE RULE OF LAW IN LATIN AMERICA, by Julio Rios-Figueroa. Cambridge: Cambridge University Press (Comparative Constitutional Law and Policy Series) 2016. Hardcover: US$ 110.00; Kindle Edition: US$ 61.46. Print ISBN: 978-1107079786.

Reviewed by Raul A. Sanchez-Urribarri, Department of Social Inquiry, La Trobe University, Melbourne, Australia. Email: R.Sanchezu@latrobe.edu.au

Scholarship on comparative judicial politics continues to mature. Works like Rios Figueroa’s insightful CONSTITUTIONAL COURTS AS MEDIATORS offer theoretical and methodological contributions that go well beyond the field, speaking to a broader audience with an interest in how institutions foster (or disincentive) different kinds of approaches to judicial decision-making, and political behavior more generally. The book transcends recent accounts of judicial power in comparative perspective, by offering an alternative approach to how constitutional courts exercise their prerogatives and contribute to governance in democratic societies and beyond.

CONSTITUTIONAL COURTS AS MEDIATORS provides a new approach to the nature of the judicial intervention of constitutional courts in cases involving the recurring participation of competing parties (which is frequently the case in cases of constitutional disputes), that is, “cases that transcend the present conflict (…) and instead looks ahead to forging a creative solution (…) that integrate the views of the actual actors in the dispute with the more permanent roles of the institutions, groups, or principles that they represent” (p. 8). Rios-Figueroa highlights that at least part of the judicial conflict-solving role takes place through mediation, conceiving courts as institutions that “facilitate agreements by helping each party to understand the other party’s views about the nature of the problem and how they think it might be best solved” (p. 21). Finding “the right solution” to this type of conflicts, then, might not refer to reaching the most optimum outcome for the case in hand as a function of ideological, strategic or legal considerations, but would require thinking about how best to provide actors with information to solve their conflicts and with actual tools to carry out their mission in a seamless and effective manner. This approach downplays the adversarial nature of constitutional conflicts, whilst bringing to scholars’ attention the deliberative character of decision-making inherent to at least some types of constitutional cases. Moreover, it invites us to consider the substance of the conflicts in question, and pause to consider the purpose of the intervention of courts in some political matters. Courts might not be there to adjudicate and create policy, but to assist in creative ways conflicting policy actors in achieving their legal policy goals.

With this framework in mind, CONSTITUTIONAL COURTS AS MEDIATORS focuses on ongoing, protracted conflicts between civilian governments and the armed forces. This is an issue that was particularly pressing for democratizing societies after the 1990s, and has become even more important with new challenges emerging in the post 9/11 context – as the brief comparative analysis offered in Chapter Seven with respect to Israel, Pakistan and Turkey clearly illustrates. As Rios-Figueroa points out, the stakes are higher “in contemporary democracies with a history of military intervention in politics and where the armed forces’ role is not confined to external defense but rather involves internal security” (p. 4). According to the book, constitutional courts are particularly effective tools to strike a balance between the competing imperatives of enabling and limiting military forces in their security mission, among other reasons, because they are able to reduce the uncertainty surrounding different aspects of government-military relations and are able to provide information to the actors in conflict, in a way “that reduces the uncertainty that surrounds [*33] their relations, helping them to cooperate and resolve their conflicts” (p. 3). Hence, the military is not left on its own devices to make critical security decisions, nor is it limited to exercise its security role effectively.

GLASS HALF FULL: THE DECLINE AND REBIRTH OF THE LEGAL PROFESSION

Vol. 27 No. 2 (February 2017) pp. 28-31

GLASS HALF FULL: THE DECLINE AND REBIRTH OF THE LEGAL PROFESSION, by Benjamin H Barton. New York: Oxford University Press, 2015. 305pp. Cloth $29.95. ISBN: 978-0-19-020556-0.

Reviewed by William D. Henderson, Indiana University Maurer School of Law. Email: wihender@indiana.edu.

The laws of supply and demand have finally caught up with the modern U.S. legal profession, yet the lawyers that preside over the decaying hierarchy – law professors, BigLaw partners, bar associations, and state and federal judges – are substantially in denial. Why? Because the old order has been too good for too long, blinding its beneficiaries to the core ideals that make a life in the law worth living. But there is good news—those now entering the legal industry will have an opportunity to return to those ideals, albeit this renaissance is borne more out of necessity rather virtue.

This is the core storyline of Ben Barton’s thoughtful and comprehensive new book, GLASS HALF FULL. The turmoil engulfing law schools and the legal profession are widely known, thanks to numerous stories in the New York Times and Wall Street Journal. Other contemporary authors have offered commentary on its the causes (e.g., Trotter 2012; Tamanaha 2012; Harper 2013), though not with a wide-angle view that could plausibly tell the story as part of a broader historical cycle. A handful of capable legal professions scholars have attempted such treatments in the past (e.g., Friedman 1973; Auerbach 1976; Stevens 1983; Abel 1989; Galanter & Palay 1991; Morgan 2010). Barton synthesizes this vast amount of information into digestible narrative that encompasses the post-2008 crisis. To this credit, it also has a substantial ring of truth.
This was not a conventional scholarly project for Barton, who is a chaired professor at the University of Tennessee College of Law. As a fellow tenured professor who earns a good living teaching law at a flagship public law school, I can attest that this is a topic where a little bit of honest reflection can prick your conscience and cause you to lose sleep (primarily due to the debt loads taken on by our students; more on that below).

Many of us who feel this way (and not everyone does) write articles about it or organize conferences or develop new courses that fit the times and are designed to create employment opportunities for our students. One of Barton’s solutions was a write a book that combines a deep factual analysis with a humane, measured tone. As a work of pure scholarship, the book may be judged differently by social scientists. This is because the unstated purpose of GLASS HALF FULL to generate acceptance and hope within a community of professionals prone to skepticism, pessimism, contentiousness and overconfidence. Yes, that’s right: lawyers.
Barton’s analysis is organized in three parts: The Market for Lawyers (Part I), Law Schools (Part II), and Big Picture and the Glass Half Full (Part III). Part I is the most substantive, original, and scholarly and develops the core theme of the book: that American lawyers are, as an historical matter, a profoundly resourceful and resilient profession that can ride out waves of crisis. The reason is that lawyers, at least in America, are too valuable for building and maintaining our institutions.
The ultimate purpose of GLASS HALF FULL is not to develop this thesis, but instead to apply it to the crisis at hand. Thus, the threshold task is to swiftly yet credibly summarize nearly 200 years of history on the U.S. legal profession. And on this very difficult task, Barton largely succeeds.

NATIONAL SECURITY AND DOUBLE GOVERNMENT

Vol. 27 No. 2 (February 2017) pp. 24-27

NATIONAL SECURITY AND DOUBLE GOVERNMENT by Michael J. Glennon. New York: Oxford University Press. 2015. 257pp. Cloth $31.95. ISBN: 978-0-19-020644-4. Paper $14.95. ISBN: 978-0-19-066399-5.

Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University.
Email: guayiya@bellsouth.net.

Law professor Michael Glennon offers a fascinating and timely essay on the workings of our actual, as opposed to our official, form of government. His thesis is that, at least within the domain of national security affairs, the classic, Madisonian model of three independent, mutually checking branches has ceased to operate. Instead, we have developed and empowered a “Trumanite” network: the top managers of military, intelligence, diplomatic and law-enforcement agencies—unelected bureaucrats who are substantially impervious to congressional, judicial and even presidential control, and free to continue the same policies without regard to the results of elections or public opinion.

Chapter 1, “Introduction,” remarks that, after campaigning vigorously against many of his predecessor’s national security policies, Barack Obama wound up keeping in place or even expanding most of them. Glennon considers and rejects as inadequate two possible explanations: that the policies were continued because they were the only rational possibilities, or that Obama happened to be personally or situationally incapable of following through with his previous views. Instead, the author draws on Walter Bagehot’s (1966) 1867 view of the British Constitution: that the real work of governing was done by modern, “efficient” institutions, not by the “dignified” ones that, in theory, had the most legitimate authority. Over time, a massive and poorly-understood shift in power from monarch and Lords to Prime Minister and Commons had occurred, creating a system of “double government,” which, if widely understood, would create a crisis of public confidence. In America the institutions differ, but dramatic changes have likewise been driven by the demands of efficiency and enabled by public naiveté.

Chapter 2, “The Trumanite Network,” traces the network to the National Security Act of 1947, which set up the CIA, the National Security Council, and the Joint Chiefs of Staff. These reforms enjoyed enthusiastic liberal support in Congress and were criticized by some conservatives. The new agencies are run by several hundred officials, some politically appointed and some career civil servants. Their culture emphasizes tough-minded realism, team loyalty, and a preference for exaggerating threats rather than underestimating them. “The fundamental driver of Trumanite power has been emergency, the appearance of threats that must be addressed immediately, without bringing in the Madisonian institutions” (p. 21). In this perspective, lessened accountability is a benefit, not a cost. The network is compulsively secretive, deflecting efforts to learn who is responsible for a given policy. Though it is not a monolithic hierarchy, the range of internal disagreement is narrow, and major policy shifts are hard to come by. Crucially, the network is autonomous. The Madisonian institutions appear, as legitimacy requires, to be in charge, but cannot actually be so if the system is to function efficiently.

ROUTLEDGE HANDBOOK OF GRAFFITI AND STREET ART

Vol. 27 No. 2 (February 2017) pp. 22-23

ROUTLEDGE HANDBOOK OF GRAFFITI AND STREET ART, by Jeffrey Ian Ross (ed). New York: Routledge, 2016. 491pp. Hardcover $225.00. ISBN: 1138792937.

Reviewed by G. James Daichendt, College of Arts and Humanities, Point Loma Nazarene University. Email: jimdaichendt@pointloma.edu.

THE ROUTLEDGE HANDBOOK ON GRAFFITI AND STREET ART, edited by Jeffrey Ian Ross, aims to review current scholarship in the fields of graffiti and street art through original contributions by experts positioned around the world. The thirty-five entries are divided into four sections that are based upon the following themes: history, theoretical inquiries, regional views, and the effects of graffiti and street art. GRAFFITI AND STREET ART does not utilize an art historical lens typically used to study graffiti and street art, a choice that is at first surprising but ultimately refreshing. Instead, it proves to be a valuable resource for those digging into this growing field of study and hoping to expand upon discipline specific studies.

Ross situates the complexity of issues related to graffiti and street art based upon two urban trajectories: the growth of urban surveillance/policing regimes and a consumption-driven urban development. The former is about public safety and preventative policing in order to reduce reactive policing (social control). By installing cameras and surveillance measures into environmental design, the hope is to reduce crime and allow the urban area to flourish. The latter trajectory repurposes urban area such as abandoned factories and warehouses as privatized spaces with high end zones for consumerism and residences in the form of restaurants and trending shops (social class). The improvement in the quality of life of the residents is then the marker for success. These two urban developments are then used by Ross to see graffiti and street art as either an urban threat or an artistic contribution/opportunity to communities. This complexity explains the varied responses that graffiti and street artists receive that range from prison sentences to museum retrospectives (a contradiction experienced by many artists who have reached the highest levels).

Any text on graffiti and street art requires some foundational definitions. Ross takes on this burden at the outset through a short introduction that assumes the form of a truncated literature review. He lumps graffiti and street art together to reinforce their similarities in terms of these acts being performative, illegal, and ephemeral. Yet there are also cultural and conceptual differences between graffiti and street art that could have been helpful to explore. Graffiti continues to be understood as something more dangerous and mysterious compared to its cousin street art. Graffiti is a letter based art form utilizing spray paint and is often difficult to read by those outside the culture of graffiti. Street art in comparison is image-based and encourages a wide range of media like wheat-paste and stencils that often have a more friendly entry point for the general public. Ross is not seeking to claim any ground and instead emphasizes the importance of legality, aesthetics, and content for distinguishing differences yet also concludes by acknowledging the futility of objectively differentiating between graffiti and street art since there is debate within the communities and subcultures.