BOOK NOTICES: August & September 2014

BOOK NOTICES: Vol 24 (8): 427-444; Vol 24 (9): 444-484

As a service to subscribers, the REVIEW provides this brief summary of the contents of recent reference works, anthologies of previously published materials, textbooks and collected readings designed for students, casebooks designed for undergraduate and law school use, later editions of books previously reviewed in this journal, and other specialized publications. Unless noted, the comments are taken from the book's jacket cover or the publisher's webpage.

The August 2014 Book Notices, Vol 24 (8):427-444 are now available.

The September 2014 Book Notices, Vol 24 (9) 444-484, are now available.


Both sets of notices are archived along with past book notices at www.Lawcourts/LPBR/notices.

THE MARRIAGE BUYOUT: THE TROUBLED TRAJECTORY OF U.S. ALIMONY LAW

by Cynthia Lee Starnes. New York: New York University Press, 2014. 235pp. Cloth $45.00 ISBN: ISBN: 9780814708248

Reviewed by Natalie Johnson, Department of Political Science and Geography, Francis Marion University. Njohnson [at] fmarion.edu

pp.424-426

Cynthia Lee Starnes presents a fascinating account of the development of alimony law in the United States in THE MARRIAGE BUYOUT: THE TROUBLED TRAJECTORY OF U.S. ALIMONY LAW. While Starnes does not specifically set out to answer a core set of analytical questions her account of the complex and perhaps contingent development of alimony law offers significant contributions to the field of political science.

Starnes rightly comments: “alimony is complex” (p.128). Indeed, she provides over 180 pages of explanation and analysis of the differing rationales, purposes, pitfalls and promises of alimony. The complexity of alimony perhaps arises from the fact each state has its own alimony rules and regulations resulting in different state practices for the distribution of alimony. Given the inherent complexity of alimony and the rationales of equality in marriage one could ask: does alimony make sense in the twenty first century when marriage is based on a model of equality between spouses? As Starnes notes: “Why should anyone be forced to share income with a former spouse? If divorce severs the tie between spouses, if each spouse is entitled to a clean break and a fresh start as no-fault laws teach, what is the rationale for alimony?” (p.128). Starnes does not necessarily believe alimony is pointless, but what she clearly believes, and argues for, is that alimony has to be dramatically reconfigured in order for it to be successful.

In presenting her account of alimony law Starnes provides her readers with an entertaining yet thought provoking narrative that is both witty and sarcastic at times. This is one of the charms of the book. The organization and language makes it an extremely readable and enjoyable book even for those who are not familiar with complex legal language, a trait that not all scholarly books share. The overall narrative of the book is peppered with real life examples to bring together the complexity of court cases and the effect these judicial decisions have on the everyday lives of individuals. These examples illustrate some of the misunderstandings of the current state of alimony in the United States and give the abstract legal principles a tangible significance for readers. In re-telling the story of alimony’s development from a gendered provision for women to prevent them from being thrust into poverty after a divorce to a right of both spouses in a marriage, Starnes illustrates how alimony has significantly changed throughout history and argues for a radical reconceptualization of it.

The book is separated into four distinct parts. Part 1 focuses on the history and purposes of alimony. In the opening few pages Starnes asks the question whether [*425] “marriage promises” matter (p. 2). She argues on page three that promises generally do matter but that “family law’s answer to this questions is surprising and troubling: marriage promises matter very much in judicial rhetoric, but otherwise hardly at all” (p.2). What this ultimately means is that individuals who break their marriage promise (by divorcing) are not held accountable by the courts and the way law on the books operates is starkly different from the practical effect on individuals. So, whiles some courts proclaim the sanctity of marriage and prevent same-sex couples from entering into state sanctioned marriages, Starnes argues judges are not holding those individuals already in marriages to the same kind of standard in cases of divorce.

REVIEW ESSAY: HUMAN RIGHTS ACCOUNTABILITY AND IHL & TERRORISM

AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVE, by Francesca Lessa and Leigh A. Payne (eds.) USA: Cambridge University Press, 2012. 456pp. Hardback $114.00. ISBN: 9781107025004. Paperback $42.00. ISBN: 9781107617339.




INTERNATIONAL HUMANITARIAN LAW AND TERRORISM, by Andrea Bianchi and Yasmin Naqvi. USA: Hart Publishing Ltd., 2011. 407pp. Hardback $164.00. ISBN: 9781849461375

Reviewed by Kawu Bala, Bauchi State Judiciary, Nigeria. Email: kabaaz [at] gmail.com

pp.416-423

Francesca Lessa and Leigh A. Payne’s edited work, AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVE brings together an impressive collection of experts on transitional justice to consider the appropriateness of amnesty for human rights violations that are criminal acts under international law (p.1). While politicians and government officials may find amnesty a realistic way of “moving forward” in a post-conflict world, most scholars reject the granting of amnesty in this context. The book is timely and should be studied because it effectively hits the nail on the head in this uncertain time of horrible conflicts that are devastating and dismembering the world.

Since the famous Nuremberg and Tokyo Trials, and subsequent creation of the International Criminal Court (ICC), it has been the attempt of the international community to hold perpetrators of lawless conflicts accountable for their actions (p.2). This is against a reality that amnesty is as old as warfare, and favored by some as a contributor to transitional stability (p.5). However the practice is conflicts with the statement of the United Nations Secretary-General, Ban Ki-Moon (UN, Kampala, 2010, p.2): in “this new age of accountability, those who commit the worst of human crimes will be held responsible.” This, no doubt, is the official position of the UN as a global institution which enforces laws and conventions relating to war. If this is true, then we are now coming back anyway to the point largely agreed in the book that amnesty is unsuitable.

Most of the chapters were papers presented at a conference on “Amnesty in the Age of Accountability: Brazil in Comparative and International Perspective,” held at the University of Oxford in late 2010. The conference is said to be the first for its case studies of selected countries. The contributions to AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY are divided into two parts. In Part I, Kathryn Sikkink attempts to answer what the Age of Accountability means, which serves as the foundation of the book. Her chapter, “The Global Rise of Individual Criminal Accountability,” sees the age as a ‘new trend in world politics’ so that those who commit crimes while in office are punished (p.19). Historically, holding evildoers to account began with the Inter-American Court of Human Rights, the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and the [*417] International Criminal Tribunal for Rwanda (ICTR), and the recent ICC. It was the actions of NGOs which gave birth to the Rome Statute in 1998, emanating from the 1948 Universal Declaration of Human Rights and other comprehensive human rights treaties (p.23), the anti-apartheid convention (p.28), and worldly atrocities, such as perpetrated in the 1970s by military governments in Latin America and the Khmer Rouge in Cambodia. The desire to punish perpetrators of these crimes has never been a smooth ride nor a single historical process but rather separate moves that ‘converge into the justice cascade’ (pp.39-40).

CONGRESS AND THE FOURTEENTH AMENDMENT: ENFORCING LIBERTY AND EQUALITY IN THE STATES

by William B. Glidden. Lanham: Lexington Books, Rowman & Littlefield, 2013. 188pp. Cloth $80.00. ISBN: 978-0-7391-8573-5. E-book $79.99. ISBN 978-0-7391-8574-2.

Reviewed by Daniel Hoffman, retired from Johnson C. Smith University. Email: guayiya [at] bellsouth.net.

pp.412-415

This short book, authored by a former Treasury Department attorney who has a Ph.D. in history, contains a number of surprises. Its focus is the section five power of Congress to enforce the Fourteenth Amendment, its history and original meaning, and the Supreme Court’s evisceration of section five. The book has a brief Introduction and eight chapters.

Chapter One is an overview of the post-Civil War amendments and their supporting statutes. The congressional framers believed in natural rights to life, liberty, property and justice, and were determined to secure those rights to all.

Chapter Two looks more closely at the Thirteenth Amendment and the 1866 Civil Rights Act. These measures aimed at more than abolishing slavery: the intention of most supporters was that all Americans would enjoy full and equal life, liberty and property rights, under congressional protection. They often referred to the broad interpretation, advanced in CORFIELD V. CORYELL, of the fundamental privileges and immunities of national citizenship, and of the need to secure their enforcement within all of the states. A few Republicans, including John Bingham, doubted that the Thirteenth Amendment conferred such sweeping power on Congress. Congress passed the Civil Rights Act anyway.

Chapter Three reviews in detail the drafting of the Fourteenth Amendment, an intricate process propelled by Bingham’s continuing concerns and by other unresolved issues, with repeated disagreements and changes of course. Glidden’s account relies chiefly on primary sources, including the debates on subsequent legislation (the Enforcement Act of 1870 and Ku Klux Klan Act of 1871). He cites many later scholars, but does not directly address any whose interpretation of original meaning differs from his. According to Glidden, behind the disagreements there was a broad and deep Republican consensus: “The states have a duty to protect the people subject to their jurisdiction in their life, liberty, property, and pursuit of happiness, and all other rights incidental thereto, by the enactment and enforcement of reasonable and just laws. Congress has the power to protect these rights of the people by appropriate legislation, to support, modify, or fill in gaps for what the states are doing (or failing to do)” (p.54). In particular, under section five Congress can regulate private as well as public conduct, because a state’s failure to secure the protected rights violates the guarantees of section one.

THE COSMOPOLITAN FIRST AMENDMENT: PROTECTING TRANSBORDER EXPRESSIVE AND RELIGIOUS LIBERTIES


by Timothy Zick. New York: Cambridge University Press, 2014. 454pp. Hardback $115.00. ISBN: 9781107012325.

Reviewed by John Blakeman, Department of Political Science, University of Wisconsin-Stevens Point.

pp.407-411

The rights protected by the First Amendment to the U.S. Constitution are generally considered to be some of the most fundamental enshrined in the Bill of Rights. The freedoms of speech and press and religious liberty are not unique to the United States, but the interpretation of the First Amendment by judges and policymakers historically casts those liberties within the context of a free marketplace of ideas bounded by American history, political development, and the national borders of the U.S. Yet, globalization and the internet have brought into sharp relief how those values transcend borders too. For instance, when Pastor Terry Jones in Florida burned a Koran, the video of it “went viral” and offended Muslims outside of the United States and raised questions about the extent to which, if any, expression can be banned when the harm it causes is felt outside of the country. When the Swiss philosopher Tariq Ramadan was denied a visa to enter the United States because the government determined that he espoused terrorism, questions were raised about the extent to which an entry visa can be denied to a foreign scholar because of his or her ideological beliefs. And the ongoing controversies over Julian Assange’s publication of national secrets on WikiLeaks and Edward Snowden’s similar conduct raise questions about the status of freedom of the press in the age of digital communication that spans national borders.

All of the above examples (along with many others) are discussed in Professor Timothy Zick’s book THE COSMOPOLITAN FIRST AMENDMENT. Zick’s work illustrates that the First Amendment exists in a free marketplace of ideas that is now as global as it is local, and he provides a detailed and wide ranging look at conflicts over freedom of speech and religion that transcend the borders of the United States. To be sure, Zick notes that the geographic scope or domain of the free speech and religious liberty clauses is rarely addressed by scholars, and existing case law is unclear about the extent to which the clauses apply outside of the United States. To address the dearth of scholarship, Zick puts forward a cosmopolitan approach to the First Amendment that views speech and religious liberty within a global marketplace of ideas and global religious pluralism – a view of the amendment “that is responsive to the challenges of an increasingly globalized world and liberating to an increasingly digitized and mobile citizenry” (p.20).

To set the stage for his inquiry Zick uses chapter one to describe the “non-domestic dimension” of the First Amendment and defines two primary points to consider. The first concerns the [*408] extent to which the amendment “applies to and protects the cross-border flow of persons, information, and ideas,” and the second focuses on how constitutional standards concerning free speech, press, and religion are transmitted and shared across national borders (p.28). Examples of the First Amendment implications for the flow of persons, information, and ideas include whether the government can revoke a citizen’s passport because of the holder’s political ideology or associations, or deny an entry visa to an alien for the same reasons, such as with Tariq Ramadan. To do so interferes with the international flow of persons in ways that inhibit the free flow and exchange of information. For Zick, limiting both the flow of people and information constrains “cross-border exchanges and collaborations,” and thus affects “cross-border associative rights” too – the rights of individuals to associate with others and belong to groups outside of their country (p.35). Next, Zick addresses some of the issues concerning how the First Amendment may be affected by the sharing of free speech and religious liberty values across national borders. For instance, the right to freedom of the press is affected when foreign litigants seek to have libel judgments from foreign jurisdictions enforced in courts in the United States, and another example highlights how religious liberty might be affected by the importation of foreign religious laws (specifically Shari’a Law) or even foreign aid that flows from the U.S. government to religious institutions abroad.

CONSTITUTIONS IN AUTHORITARIAN REGIMES

by Tom Ginsburg and Alberto Simpser (eds). New York: Cambridge University Press. 278pp. Cloth $95.00. ISBN 9781107047662. Paper $34.99. ISBN 9781107663947.

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

pp.402-406

This book is a discussion of a real problem of comparative analysis: what is the actual role of institutional restraints on authoritarian governments? This is a relatively recent concern; for much of the 20th century, the answer was easy: not much. Constitutions in regimes run by fascist and communist parties were considered shams and most analysis of them was an ironic contrast between the institutional descriptions in constitutions and their functional operation. Even when the constitutions involved proved useful tools for overthrowing authoritarian regimes (as with the German Democratic Republic), this largely dismissive stance continued.

Since the general collapse of fascism and communism, however, a very different landscape for authoritarianism has emerged, accompanied by a revival of interest in how constitutions work in authoritarian regimes. Here the emphasis, as Ginsburg and Simpser say in their opening essay for this book, is more on why authoritarian governments would generate constitutions in the first place. Ginsburg and Simpser sensibly decided to begin to answer this question by laying out the functions of constitutions:
  • They provide operating manuals by setting out rules for decision-making,
  • They are billboards advertising the commitments of governments and what the intentions of rulers are,
  • They are blueprints showing the direction for policy by the regime in the future,
  • They are window dressing that provide normative cover for existing political practices.
Authoritarian constitutions have the same functions as democratic ones, but the purpose of the functions is different. Ginsburg and Simpser postulate that the use of constitutions by authoritarian governments is essentially as a tool for coordinating intra-elite struggles and providing information to factions of supporters. As a consequence, window dressing is heavily in evidence, but this does not mean that the other functions are not still viable. What has not been done – and this book is an attempt to balance the scales on this – is to gauge the different ways that authoritarian constitutions work and what effects they have.

The theoretical critiques of the concept of constitutional authoritarianism lead off the book. Adam Prezworski’s essay on Poland asks what is probably the most enigmatic question in the book: given the example of the constitutions in force in the other communist states, why did the Polish United Workers Party (PUWP) actively decide to not enshrine the “leading role” of the party in the 1952 new constitution? Prezworski admits that he cannot answer this question, but his [*403] attempts to do so are interesting. He concludes that so long as the Red Army guaranteed the party’s rule, the formal rules of the new constitution could be readily ignored and usually were. But subsequent events – particular the strike in Gdansk, the formation of Solidarity, and the economic downturn of the early 80s – led opponents to attempt to turn the 1952 constitution into a true operating manual and threatened communist rule in the country. Unexpectedly, an authoritarian regime found itself in a constitutional crisis. Not what one would expect if window dressing was the only function of authoritarian constitutions.

GETTING INCENTIVES RIGHT: IMPROVING TORTS, CONTRACTS, AND RESTITUTION

by Robert D. Cooter and Ariel Porat. Princeton University Press, 2014. 240pp. Cloth $49.50. ISBN: 978-0-691-15159-5. E-book ISBN: 978-1-400-85039-6.

Reviewed by Stephen Daniels, American Bar Foundation, Chicago, IL. Email: sdaniels [at] abfn.org.

pp.394-401

What ultimately happens to the guy with the broken leg? The man whose leg is broken by the negligence of another is one of the simple but effective hypothetical examples used by Robert D. Cooter and Ariel Porat in their book GETTING INCENTIVES RIGHT: IMPROVING TORTS, CONTRACTS, AND RESTITUTION. While the example is theirs, the question is mine, and the answer goes to the heart of the book, the authors’ purpose, and the implications of their argument.

INCENTIVES is a book of theory and synthesis. It is lucidly written, well organized, and concise – just a little over 200 pages of text. It has a clear, straightforward thesis first stated in the very opening sentence “Law should promote the wellbeing of people” (p.1). It is restated in a bit more detail at the end of the Introduction where the authors’ purpose is partially seen: “THIS BOOK HAS THREE MAIN CLAIMS: misalignments in tort law should be removed; in contract law, promisee’s incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. All three claims could be summarized in one short sentence: private law could, and should, promote social welfare better. To substantiate these three claims, we take the reader on a tour of economic analysis in private law” (p.12, emphasis in original). As influential scholars in the field of law and economics, Cooter and Porat are more than appropriate tour guides.

In the full sense of the term, INCENTIVES is also a provocative work. It is challenging, stimulating, and – depending on one’s take on law and economics and its underpinnings – capable of invoking anger or excitement. Provocative because more than just the promised tour – this is no mere sightseeing tour – Cooter and Porat’s purpose is to lead us to a particular destination. They want to persuade us of the need for what in many respects is a fundamental rethinking of some of the basic tenets of private law and the operation of the civil justice system, a rethinking driven by ideas drawn from the law and economics literature (especially their own contributions to that literature). Underlying this is a more general theme pointing, perhaps, to the ultimate destination – a more minimal state. There is more than a dash of libertarianism here.

For Cooter and Porat the key to law better serving social welfare is to be found in more efficient legal rules. Inefficient rules, they argue, lead to misalignments in incentive structures for actors. Misalignments arise because of the ways in which legal rules handle, on [*395] the one hand, risk, cost, harms or losses, and compensation, and how they handle benefits on the other. Actors (those who may become defendants in tort or contract matters) may over-invest in precautions or be over-deterred by legal rules that do not adequately and appropriately take ALL key factors involved into consideration. Cooter and Porat summarize all key factors as net harm: “The net harm equals the actual harm minus the benefits to others” (p.12). Ignoring net harm may make socially beneficial actions more expensive than they need to be or may even make their cost prohibitive. One example for Cooter and Porat is the claim by some “that high damages for tort liability in the U.S. cause too few doctors to specialize in obstetrics” (p.167). (Although not a book on the issues surrounding medical malpractice, it is a recurring interest and source of hypothetical examples in INCENTIVES.)