PRISON BREAK: WHY CONSERVATIVES TURNED AGAINST MASS INCARCERATION

Vol. 27 No. 4 (May 2017) pp. 67-72

PRISON BREAK: WHY CONSERVATIVES TURNED AGAINST MASS INCARCERATION, by David Dagan and Steven M. Teles. Oxford University Press, 2016. 256 pp. Hardcover $29.95. ISBN 9780190246440.

Reviewed by Lisa L. Miller, Political Science Department, Rutgers University. Email: miller@polisci.rutgers.edu.

In the 1990s, when the Democrats and Republicans were engaged in trying to out-tough one another on crime, few would have predicted that it would be hardline conservatives and staunch law and order Republicans that would be on the forefront of criminal justice reform. But in the most punitive states in the country – e.g., Texas, Georgia, Mississippi, North Carolina and South Carolina – Republican controlled legislatures and Republican governors have passed some of most comprehensive reform in a half century, including rolling back truth-in-sentencing laws, reducing penalties for some drug offenses, and even investing in alternatives to prison programs such as drug diversions.

How on earth did that happen?

David Dagan and Steve Teles aim to answer that question in their lively and highly readable book, PRISON BREAK: WHY CONSERVATIVES TURNED AGAINST MASS INCARCERATION. Given the harsh rhetoric of conservatives during the second half of the 20th century, Dagan and Teles are interested in the process through which “Smart on Crime”, “Right on Crime”, and other conservative visions of criminal justice reform came into being.

While the book is focused on the criminal justice system, Dagan and Teles have a broader question in mind: Why do policymakers come to embrace facts that they once shunned and adopt positions that they once abhorred (p. 7)? Their analysis focuses on three factors that interact to produce change in policymakers’ minds: resources, reputations, and strategy.

In chapter one, Dagan and Teles draw on a range of literature from cognitive psychology, social movements, and political agenda-setting to argue that people can change their minds when others around them, with whom they share a core identity, change theirs. Even then, however, without proper nurturing, resources and some strategizing, change may not occur. “Changing minds is a difficult, complicated business,” Dagan and Teles write (p. 14). But it does happen, with the right combination of resources, organization, and prominent allies.

In this account, the process begins when trustworthy leaders “identity vouch” for the authentic nature of whatever new policy position is being undertaken. This is particular important for conservative criminal justice reformers because support for high level spending on police, prosecutors and prisons was a hallmark of Republican policy from the early 1970s through the 1990s, despite being at odds, at least on a prima facie basis, with the smaller government principles that conservatives claim to value.

INTERNATIONAL COURTS AND THE PERFORMANCE OF INTERNATIONAL AGREEMENTS

Vol. 27 No. 4 (May 2017) pp. 65-67

INTERNATIONAL COURTS AND THE PERFORMANCE OF INTERNATIONAL AGREEMENTS: A GENERAL THEORY WITH EVIDENCE FROM THE EUROPEAN UNION, by Clifford J. Carrubba and Matthew J. Gabel. New York: Cambridge University Press, 2015. 243pp. Hardcover $102.00. ISBN: 9781107065727. Paperback $34.99. ISBN: 978-1107677265.

Reviewed by Brad Epperly, Department of Political Science, University of South Carolina. Email: epperlyb@mailbox.sc.edu.

In INTERNATIONAL COURTS AND THE PERFORMANCE OF INTERNATIONAL AGREEMENTS, Carrubba and Gabel offer an important contribution to the study of the European Court of Justice and international courts more broadly. After first developing a formal model to predict the conditions under which states should comply with international court rulings as well as when rulings should have impact, the authors trace out not only its empirical implications but also the degree to which the data comport with alternative explanations of state compliance with international courts. The clarity with which Carrubba and Gabel lay out their model and empirical evidence is particularly commendable; this, combined with their brief descriptive account of the workings of the court should make the volume appropriate for use in advanced undergraduate courses on comparative courts and generally accessible to those only passingly familiar with game theoretic and statistical accounts.

The authors begin by offering a brief sketch of debates on if and how international institutions matter, arguing that a satisfactory theory of international courts should provide reasons for why states (1) create an international regime and (2) include a court as part of the regime, as well as account for the (3) activation of the legal system and, most critically, why (4) states comply when a court rules against them.

Building off the rational design approach in the international organizations literature generally and Carrubba’s earlier (2005) work specifically, the authors address the first two points above with reference to the contention that common regulatory regimes can solve collective action problems across a given (set of) policy space(s), and that courts can aid in monitoring and sanctioning of state defection from the dictates of these regimes. The legal system is activated in typical fire alarm fashion when litigants—any actor with standing—use the court. Critical for Carrubba and Gabel is Koremenos, Lipson, and Snidal’s (2001) insight that the costs of complying with a common regulatory regime vary across states and within states over time: other states prefer to punish a given state’s defection when net (for all parties) benefits outweigh net costs, but not otherwise. The latter can arise either when many pay costs or when the costs of compliance for a given state are so high that they outweigh the benefits other states receive from compliance with the regime.

TORT REFORM, PLAINTIFFS’ LAWYERS, AND ACCESS TO JUSTICE

Vol. 27 No. 4 (May 2017) pp. 62-64

TORT REFORM, PLAINTIFFS’ LAWYERS, AND ACCESS TO JUSTICE, by Stephen Daniels and Joanne Martin. Lawrence, Kansas: University of Kansas Press, 2015. 286 pp. Cloth. $37.50. ISBN: 978-0-7006-2073-9.

Reviewed by Jeb Barnes, Department of Political Science, University of Southern California. Email: barnesj@usc.edu.

Political scientists spend an enormous amount of time and energy writing about the U.S. Supreme Court and constitutional politics. This focus is understandable on one level given the prominence of Supreme Court rulings on issues like abortion, marriage equality, and voting rights. On another level, however, this focus seems a bit odd. The Supreme Court hears only about 80 cases per term and we know from years of research that its high-profile rulings are often only the beginning of complex political battles that do not always yield significant social change. By contrast, according to recent federal caseload statistics, over 64,000 tort cases were filed in U.S. District Courts from March 31, 2015 to 2016, well over half of all of the federal courts’ diversity jurisdiction cases. Of course, federal tort cases are only the tip of a much larger iceberg, as the vast majority of tort lawsuits are filed at the state level. If bank robbers rob banks because that is where the money is, why do public law scholars often overlook areas like tort law when that is where the cases are?

Given this background, it is a relief to pick up Stephen Daniels and Joanne Martin’s new book. These scholars have had distinguished careers delving into—and providing insights about—the civil justice system and various myths about litigation in the United States. From the perspective of political science, their account hits a trifecta of worthy-but-often-overlooked topics by addressing tort law, focusing on litigation at the state (as opposed to federal) level, and combining a discussion of doctrine with a sophisticated analysis of legal practice—both its business model and norms. From the perspective of law and society scholars, Daniels and Martin’s analysis covers more familiar ground but offers key insights into the mechanisms underlying what Marc Galanter (1983) famously called the “radiating effects” of law while contributing to long-standing arguments about the key role of lawyers in maintaining and promoting rights (Epp 1998). The result is a book that should be read by anyone who wants to understand the American legal system as well as scholars interested in the intersection among formal rules, the social construction of law, and daily legal practice.

FEDERALISM ON TRIAL: STATE ATTORNEYS GENERAL AND NATIONAL POLICYMAKING IN CONTEMPORARY AMERICA

Vol. 27 No. 4 (May 2017) pp. 59-61

FEDERALISM ON TRIAL: STATE ATTORNEYS GENERAL AND NATIONAL POLICYMAKING IN CONTEMPORARY AMERICA, by Paul Nolette. Lawrence, KS: University Press of Kansas, 2015. 286 pp. Cloth $39.95. ISBN: 978-0-7006-2089-0.

Reviewed by: Shane A. Gleason, Department of Political Science, Idaho State University. Email: gleashan@isu.edu.

Paul Nolette’s recent book, FEDERALISM ON TRIAL: STATE ATTORNEYS GENERAL AND NATIONAL POLICYMAKING IN CONTEMPORARY AMERICA, is an exhaustive account of state attorney general policy-making via multi-state litigation campaigns. While scholars from a number of subfields including law and courts, state politics, and federalism broadly defined are likely familiar with earlier work on how state attorneys general utilized multi-state litigation to regulate the tobacco industry (e.g. Derthick, 2011), Nolette provides an update for the 21st century which goes beyond simply updating the narrative of the litigation campaigns by stressing the surrounding context shapes not only the characteristics of the litigation, but also the kind of policy attorneys general advocate. Moreover, as an overarching theme in the book, Nolette contends that the changes in attorney general litigation are demonstrative of the changing nature of nation-state relations in the broader context of federalism. As such, this book provides a firm theoretical foundation for future studies on attorney general activity in both multi-state litigation and amicus briefs. While the book is a welcome addition to the literatures on both attorneys general and federalism, it is not without its faults. Specifically, the book relies upon meticulously detailed case studies which allow the reader to delve into the nuance of each litigation campaign. This comes at the expense of clearly espousing and linking back to the theoretical context upon which Nolette’s argument rests. As a result, the theoretical argument only fully comes together in the final few chapters. That said, Nolette provides a welcome addition to the literature which provides a great introduction to work on attorneys general and a useful refresher for scholars already familiar with the topic.

Much of the previous book length treatments of attorneys general and their role in federalism focuses on the tobacco litigation of the late 1990s. However, as Nolette notes in his recent work, the underlying dynamic of attorney general activity has change with partisanship and conflict is now a much more central feature of their amicus curiae brief interactions (Nolette 2014). Nolette contends that the flavor of litigation can take on multiple forms including: policy creation, policy forcing, and policy blocking. Which one occurs in a given case is dependent on the issue area at hand as well as the political context. This book then examines the dynamics of attorney general litigation in two broad issue areas: regulating the pharmaceutical industry and environmental protection from the 1980s through the 2010s. After providing a brief overview of these contexts in Chapter 1, Nolette briefly turns to a history of attorneys general and how they initially became involved in multi-state litigation in Chapter 2. While this provides a base for the subsequent case study chapters, the theoretical framework beyond the different types of litigation is somewhat thin. As a consequence, it is difficult for the reader to connect the subsequent case study chapters back to the larger theoretical framework before the detailed discussion of theory in Chapter 9. That said, the case studies have many strengths on their own.

THE LAW OF CROSS-BORDER BUSINESS TRANSACTIONS: PRINCIPLES, CONCEPTS, SKILLS

Vol. 27 No. 4 (May 2017) pp. 57-58

THE LAW OF CROSS-BORDER BUSINESS TRANSACTIONS: PRINCIPLES, CONCEPTS, SKILLS, by Lutz-Christian Wolff. The Netherlands: Kluwer Law International, 2013. 584 pp. Hardcover $223. ISBN: 978-90-411-4001-2.

Reviewed by Charles Ho Wang Mak, Faculty of Law, The Chinese University of Hong Kong. Email: charleshwmak@gmail.com.

Nowadays, the law of international business transaction is one of the fastest-growing areas of international law, due to the rise of the cross-border transactions around the world. In addition, there is no single body of law governing the different forms of international business transactions. Therefore, the complexity of the legal aspects of cross-border transactions is high. This book is a practical and comprehensive guide to cross-border transactions. This exciting work is written by Professor Wolff, who is one of the most eminent scholars and international attorneys that specializes in comparative law and private international law.

The main goal of Wolff’s book, as described in the preface, is to: “[…] make these concepts and principles transparent by giving a structured introduction to the law and practice of cross-border business transactions with the ultimate goal to consolidate transferable practical knowledge which can be applied across jurisdictions” (p. xix). Because of the comprehensive nature of the THE LAW OF CROSS-BORDER BUSINESS TRANSACTIONS, this book is not only appropriate for students, but also for practitioners, scholars, researchers, and government officials who need to understand the legal aspects of cross-border transactions.

Wolff provides an accessible and succinct introduction to the law and practice of both of the cross-border investment deals and non-investment transactions. It also provides some practical guidance for practitioners who practice in the field of cross-border transactions, such as advice on contract drafting, and practical approach in deal making in this area of the law. The book contains ten chapters, which are constructed according to the process of conducting a cross-border business transaction.

OBAMA’S GUANTANAMO: STORIES FROM AN ENDURING PRISON

Vol. 27 No. 4 (May 2017) pp. 53-56

OBAMA’S GUANTANAMO: STORIES FROM AN ENDURING PRISON, by Jonathan Hafetz (ed). New York: New York University Press. 2016. 229 pp. Cloth $30.00. ISBN 9781479852802.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap@lagrange.edu

This book is infuriating, interesting, and exasperating. It is infuriating because it describes a situation that should not exist in a democratic country: the continuing and apparently limitless imprisonment of individuals who have often been confined for no good cause and whose redress has been curtailed over and again. It is interesting because in several chapters it considers a topic not often found in academic treatments of legal policy: the state of habeas corpus in the law of war. Finally, it is exasperating, at least to a professional political scientist, in its treatment of presidential power. In this review I will cover each of these aspects using example chapters to illustrate them. However, all of the book’s contributions are worth an interested reader’s consideration.

The continued existence of the prison at Guantanamo Bay in Cuba has been a problem for years. This book is testimony to this; it is a sequel to THE GUANTANAMO LAWYERS: INSIDE A PRISON OUTSIDE THE LAW (2011) that Hafetz co-edited. As before, OBAMA’S GUANTANAMO focuses on the prisoners themselves and the complex story of their resistance to their incarceration. It also amply illustrates the frustrations of the advocates for the prisoners; advocates who find themselves in a long battle with a reluctant government after winning landmark victories in the Supreme Court during the second Bush administration that appeared to clear the ground for their clients’ release.

The Guantanamo Bay prison was originally intended to provide a way to hold those persons captured on the battlefields of Afghanistan and Iraq who were deemed to have “intelligence value” and to be a threat to US national security indefinitely in a place where the jurisdiction of U.S. federal courts did not extend. With a few exceptions, determinations about the prisoners (“detainees”) were based on either barely supported suspicions or on information extracted by torturous interrogations. Nevertheless, the Bush administration, convinced that the prisoners were vital intelligence resources in fighting terrorist organizations, wished to hold them for interrogation and subsequent indefinite detention to prevent their return to the field. In a stunning series of decisions, the Supreme Court declared that federal courts had jurisdiction over Guantanamo (RASUL V. BUSH), extended habeas corpus protections to the prisoners (RASUL and HAMDI V. RUMSFELD), drew the teeth of the torture regime instituted in the War on Terror (HAMDAN V. RUMSFELD), and forced suspension of operations of the military commissions Congress had established to try them (HAMDAN, then BOUMEDIENE V. BUSH).* The election of Barack Obama as president raised hopes among all involved in the prisoners’ cases; Obama had pledged to shut down the prison and many of the inmates had already been cleared for release.

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.