JUDGING INEQUALITY: STATE SUPREME COURTS AND THE INEQUALITY CRISIS

Vol. 32 No. 9 (October 2022) pp. 117-119

JUDGING INEQUALITY: STATE SUPREME COURTS AND THE INEQUALITY CRISIS.

by James L. Gibson and Michael J. Nelson. New York: Russell Sage Foundation, 2021. pp. 356. Paperback: $35.00. ISBN: 9780872545039.

Reviewed by Susan B. Haire. Department of Political Science. University of Georgia. Email: cmshaire@uga.edu.

Upon reading the introduction to JUDGING INEQUALITY, one may be skeptical that this book will live up to its lofty goal: developing and testing an explanation for variation in state judicial policies that focus on political, legal, economic, and social equality. By the end of this volume, however, readers will find that the authors have achieved this goal by using an original database of 6,000 court decisions made by approximately 1,000 justices from 52 state courts of last resort. Readers will also be struck by the attention given to the theoretical framework; one that thoughtfully integrates a range of existing perspectives to develop the foundation for the empirical tests. The authors report interesting findings that raise important issues for academics and policy makers alike.

The organization of this book guides the reader through a rigorous, complex analysis. Chapter 1 outlines the increasingly important policy making role exercised by state supreme courts and the efforts by political interests to capture these courts. Among other things, this chapter also provides the foundation for the theoretical framework that explains when state supreme court justices are more likely to be in sync with the views of the state’s governing coalition. Because most historical scholarly treatments of equality tend to focus on race or gender, readers will become aware that their conceptualization includes a range of policy areas and contexts from 1990-2015.

DEBT AND FEDERALISM: LANDMARK CASES IN CANADIAN BANKRUPTCY AND INSOLVENCY LAW, 1894–1937

Vol. 32 No. 9 (October 2022) pp. 113-116

DEBT AND FEDERALISM: LANDMARK CASES IN CANADIAN BANKRUPTCY AND INSOLVENCY LAW, 1894–1937, by Thomas G.W. Telfer and Virginia Torrie. Vancouver: UBC Press, 2021. pp. 284. Paperback: 27.95. ISBN: 9780774867283.

Reviewed by Camden Hutchison. Peter A. Allard School of Law. University of British Columbia. Email: hutchison@allard.ubc.ca.

DEBT AND FEDERALISM: LANDMARK CASES IN CANADIAN BANKRUPTCY AND INSOLVENCY LAW, 1894–1937, by Thomas G.W. Telfer and Virginia Torrie, lives up to the promise of its title, examining four pivotal cases in the history of Canadian insolvency law. By analyzing these cases in detail, the authors reveal the origins of the modern Canadian insolvency regime, including the prominent role of the federal government. The authors’ thesis is that, during the six decades following Confederation, the scope of federal power over “bankruptcy and insolvency” under the BRITISH NORTH AMERICA ACT, 1867 was uncertain and contested, particularly where it conflicted with provincial authority over “property and civil rights.” It was not until the Great Depression that, in the words of the authors, “the final attributes of the contemporary federal bankruptcy and insolvency power were hammered out in the strained Canadian federalism of the 1930s” (p. 11).

Telfer and Torrie’s historical narrative centers on four cases: the VOLUNTARY ASSIGNMENTS CASE (1894), ROYAL BANK OF CANADA V LARUE (1928), the COMPANIES’ CREDITORS ARRANGEMENT ACT REFERENCE (1934), and the FARMERS’ CREDITORS ARRANGEMENT ACT REFERENCE (1936, 1937). The authors argue that these four cases shaped Canadian insolvency law by adopting a broad interpretation of Parliament’s bankruptcy and insolvency power. Drawing on their prior scholarship, Telfer and Torrie develop this argument through a variety of legal sources, including parties’ facta, intervenors’ submissions, and the published judicial decisions themselves. Although Telfer and Torrie’s historical account is convincing on its own terms, their focus on legal cases as determinative of historical change is, at times, inadequately contextualized, and fails to explain the broader forces that shaped Canadian insolvency legislation.

COURTS AT WAR: EXECUTIVE POWER, JUDICIAL INTERVENTION, AND ENEMY COMBATANT POLICIES SINCE 9/11

Vol. 32 No. 9 (October 2022) pp. 110-112

COURTS AT WAR: EXECUTIVE POWER, JUDICIAL INTERVENTION, AND ENEMY COMBATANT POLICIES SINCE 9/11.

by Gregory Burnep. Lawrence: University Press of Kansas, 2021. pp. 243. Hardcover: $40.00. ISBN: 9780700630479.

Reviewed by Chris Edelson. Department of Government. American University. Email: edelson@american.edu. *

In the early days and months after the 9/11 terrorist attacks, many Americans put their faith in the president to keep them safe. President George W. Bush’s approval ratings skyrocketed. Vice President Dick Cheney declared that “9/11 changed everything”, and the Bush-Cheney administration moved to stamp its imprimatur on the face of new national security policies in areas including detention and trial of suspected terrorists, warrantless surveillance, extraordinary rendition, and interrogation. At first, these were mainly unilateral presidential actions, often justified in classified Office of Legal Counsel memoranda, which deployed a broad version of the unitary executive theory that insisted presidential power was plenary and could not be limited by Congress or the courts.

Given the overwhelming level of public support, as well as a long-standing tradition of deference by Congress and the judiciary to the president during times of war and crisis, Bush and Cheney could reasonably have expected that they had carte blanche to do as they pleased in shaping the US response to 9/11. In COURTS AT WAR, Gregory Burnep argues that when it comes to what he calls “enemy combatant policies” (policies related to detention and military commissions for suspected terrorists), the opposite occurred (p. 3). In Burnep’s view, presidential national security power after 9/11 has not been absolute (p. 99). Instead of reflecting presidential unilateralism, national security policy has “emerged from a back-and-forth between ‘separated institutions sharing powers’ [in Richard Neustadt’s phrase]” (p. 120). President Bush was forced to recalibrate and modify actions he initially took unilaterally, and his successors have been similarly constrained.

US SUPREME COURT DOCTRINE IN THE STATE HIGH COURTS

Vol. 32 No. 8 (September 2022) pp. 101-109

US SUPREME COURT DOCTRINE IN THE STATE HIGH COURTS, by Michael P. Fix and Benjamin J. Kassow. New York: Cambridge University Press, 2020. pp.182. Paperback: $34.99. ISBN: 9781108812979.

Reviewed by David A. Hughes. Department of Political Science & Public Administration. Auburn University at Montgomery. Email: david.hughes@aum.edu. Introduction

Michael P. Fix and Benjamin J. Kassow’s US SUPREME COURT DOCTRINE IN THE STATE HIGH COURTS provides readers with a concise and engaging examination of an under-studied topic in political science’s state law and courts literature: the strategic use of U.S. Supreme Court precedent in state courts of last resort. It highlights unique state-level factors such as the doctrine of adequate and independent state grounds to demonstrate how state courts can make sophisticated use of federal precedents. It assembles an impressive new dataset to test its theoretical expectations, and it employs mixed methodologies in its execution. While its contributions to the literature are primarily methodological, its empirical findings related to how state courts oftentimes ignore U.S. Supreme Court precedents fill an important gap that will be of interest to a variety of scholars.

One of the primary issues facing the law and courts discipline over its relatively short lifespan is how seriously one ought to take the concept of legal precedent. That is, when judges, practitioners, or scholars explain judicial outcomes as a function, not of individual discretion, but of duty compelled by a pre-existing body of case-law, how much weight should these claims carry?

According to research centered on the U.S. Supreme Court, the answer would appear to be “Not much.” Justices have numerous opportunities to ignore or distinguish previous holdings and are unaccountable to others in their dispensation of justice (Segal and Spaeth 2002). Because the Court is unlikely to audit decisions by lower federal courts, these bodies are similarly incentivized to pursue the strategic maximization of policy-based payoffs (Cameron, Segal and Songer 2000).

Compared to the literature on the federal courts, less is known about how state courts treat federal precedents. This is important because in the American system of federalism, state courts are both inferior to federal courts with respect to federal questions but are also largely independent with respect to state matters of law due to concepts like the adequate and independent state grounds doctrine. This duality gives state judges unique opportunities to determine which body of precedents—state or federal—strategically serves their objectives.

Previous research examining state court compliance with federal precedents has produced mixed results. One important conclusion to this body of work, however, is that state courts possess ample flexibility to reach desired policy ends when citing federal precedents—even when those ends are at ideological odds with the precedents they cite—at least until receiving more direct guidance from a superior court (Comparato and McClurg 2007; Romans 1974).

Fix and Kassow’s book builds upon these earlier pieces by examining how state courts of last resort treat U.S. Supreme Court precedents. One of its primary accomplishments

REJECTING RETRIBUTIVISM: FREE WILL, PUNISHMENT, AND CRIMINAL JUSTICE

Vol. 32 No. 8 (September 2022) pp. 98-101

REJECTING RETRIBUTIVISM: FREE WILL, PUNISHMENT, AND CRIMINAL JUSTICE, by Gregg Caruso. New York: Cambridge University Press, 2021. pp.389. Cloth: $110. ISBN: 978-1108484701 Paper $32.99 ISBN: 978-1108723480.

Reviewed by Whitley Kaufman. Department of Philosophy. University of Massachusetts Lowell. Email: Whitley_Kaufman@uml.edu.

Gregg Caruso, a philosophy professor at SUNY Corning, calls for a total revamping of the criminal justice system in the United States. Caruso shifts it entirely away from its current basis in retributive justice (the idea that punishment is justified because wrongdoers deserve it) to what he calls a “public health-quarantine model, in which the purpose of criminal justice is not punitive, but aims primarily at crime prevention. The public health model involves a focus on social justice and addressing the social inequities that lead people into criminal behavior, including inequality and discrimination. It would, Caruso argues, lead us to adopt a system that is very different from the highly punitive system we have today. It would entail that sentences be much lighter and that prisoners be treated with dignity and respect, making their prison existence as close to a normal existence as possible, consistent with the goals of preventing crime.

Caruso uses Norway as a model for a better criminal justice system. Norway has explicitly abandoned the punitive or retributive aim in favor of a wholly rehabilitative and preventive system, and one in which sentences are far lighter than in the U.S., and prisoners are treated far better. Caruso points out that far from leading to an explosion in crime, Norway has one of the lowest crime rates in the world and one of the lowest recidivism rates. In contrast, the United States has one of the highest incarceration rates in the world, but also a high crime rate and a high recidivism rate. Caruso predicts that if we were to adopt such a system, it would cost far less and lead to less crime overall. The current system with its focus on making criminals pay, he thinks, ends up distracting us from the far more important goal of preventing crime in the first place.

Criticism of the United States’ system of criminal punishment is, of course, nothing new. There seems to be a widespread consensus among academics (though not among politicians or the general public) that our system is far too harsh and punitive, and at great cost not only to the taxpayer, but also to the inmates and their families with little benefit to show for it. Criticism of the retributive justification of punishment is also widely shared with a number of recent books arguing that there is no coherent moral basis for the idea of retribution, and that it is merely a form of vengeance. Unfortunately, most of these criticisms (and Caruso’s as well) ignore what is the only morally plausible account of retributive punishment, that defended by Nietzsche: retribution is a defense of the honor of the victim (I explain this theory in detail in Honor and Revenge: A Theory of Punishment (Springer, 2012)). But even on Nietzsche’s account, it seems undeniable that criminal punishment in the United States is wildly excessive.

What is distinctive about Caruso’s attack on retributivism is that it is based on metaphysics,

REIMAGINING THE JUDICIARY: WOMEN’S REPRESENTATION ON HIGH COURTS WORLDWIDE

Vol. 32 No. 8 (September 2022) pp. 93 - 97

REIMAGINING THE JUDICIARY: WOMEN’S REPRESENTATION ON HIGH COURTS WORLDWIDE, by Maria C. Escobar-Lemmon, Valerie J. Hoekstra, Alice J. Kang, and Miki Caul Kittilson. Oxford: Oxford University Press. pp.215. Cloth: $85.00. ISBN: 978-0-19-886157-7.

Reviewed by Laura Moyer. Department of Political Science. University of Louisville. Email: laura.moyer@louisville.edu.

Every so often, a study comes along that fills a sizable hole in multiple literatures. REIMAGINING THE JUDICIARY: WOMEN’S REPRESENTATION ON HIGH COURTS WORLDWIDE is one such book. This book takes a mixed method approach to investigate what factors drive the appointment of women to national high courts. It is easy to see why Escobar-Lemmon, Hoekstra, Kang, and Kittilson were just awarded the 2022 C. Herman Pritchett Award for “Best Book on Law and Courts”, along with Gibson and Nelson’s excellent JUDGING INEQUALITY: STATE SUPREME COURTS AND THE INEQUALITY CRISIS. REIMAGINING THE JUDICIARY makes a valuable contribution to research on diversity and judicial selection, greatly advances the comparative courts literature, and engages with institutions that are often overlooked by the comparative literature on gender and political institutions (Thames and Williams 2013).

Outside of the scholarly community, this book is also important for the insights that it offers to practitioners. For one, by taking on the “supply is everything” argument about women’s representation on courts, they allow for an empirical case to be made to revisit formal and informal selection processes, and they emphasize the importance of international mechanisms that promote gender equality (like CEDAW). This project also offers encouragement for the work of women’s INGOs by showing how such groups can put pressure on those who select judges, and how these groups have helped aspiring women judges navigate the judicial selection process.

One of the biggest contributions of the book is the impressive feat of data collection undertaken by the authors. Escobar-Lemmon et al. have built a cross-national, longitudinal dataset of composition of high courts in countries with a 2010 population of at least 200,000 (1970-2013). There is a reason why other previous works were not as exhaustive: compositional data on judiciaries (even high courts) is much harder to acquire than it might seem. To wit, the authors’ quantitative data is more expansive in time and place than those collected by the World Bank, the UN, or the Council of Europe. I would direct readers not to overlook the website associated with the book, which contains the book’s replication data along with great archival photos, data visualizations, and a bibliography of important work on the topic. This is a fabulous resource for both researchers and students, and it highlights a diverse group of scholars.

In addition to the cross-sectional, longitudinal dataset, the book draws on interviews and archival data to explore a group of countries more in depth. Here, they connect to and are in dialogue with the rich literature of qualitative work on women and judiciaries around the world. The five countries selected for the case study portion of the analysis (U.S., Canada, Ireland, Colombia, and South Africa) vary in terms of level of wealth, region, women’s presence in legislative bodies (including whether gender quotas are utilized), and the gender composition of the head of state and executive branch ministers. In spite of these differences, all five countries have had at least a third of seats on their high courts occupied by women at some point in time.

The motivating questions of the book are what drives the first appointment of a woman to a high court. So, what ensures the subsequent representation of women on the bench? Their central argument is that the supply side, or pipeline explanations about women’s representation on courts, are insufficient by themselves. Indeed, some countries’ representation of women (e.g., South Africa and Canada)