NO DAY IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT

Vol. 27 No. 5 (June 2017) pp. 86-88

NO DAY IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT, by Sarah Staszak. New York: Oxford University Press, 2015. 320pp. Hardcover $99.00 ISBN 978-0-19-939903-1 Paper $27.95 ISBN 978-0-19-939904-8.

Reviewed by Richard L. Pacelle, Department of Political Science, University of Tennessee. Email: rpacelle@utk.edu.

As the clock ticked down on my qualifying oral examinations, I was feeling optimistic that I was going to survive. But the last question I received was not one I had spent any time preparing for: “Why did you decide to study public law?” I had never examined it very closely. I stammered out a response that had the virtue of being close to truth: I had been energized by the constitutional revolution that was the Warren Court. The times they were a changin’. And I suppose that begs the question what would I do today if I read this book in graduate school?

Few disputes end up being resolved in formal court hearings in front of a jury. Over 90 percent of criminal cases are resolved through a plea bargain of some type. Civil disputes also typically get resolved outside a formal courtroom before the full trial process is engaged. It would be impossible for the judicial system to accommodate trials if the percentages were reversed, or even if half the disputes went to trial. But it is one thing for the parties to a dispute to make the choice to settle the case or enter into a plea bargain arrangement; it is something else for access to the courts to be curtailed or limited. In her comprehensive, but sobering book, Sarah Staszak examines judicial retrenchment and advances a conceptual framework for understanding the changes that have limited access to the court system for many Americans.

It is clear to anyone with a passing interest in the judiciary that the post-Warren Supreme Court has tightened standing requirements and made it more difficult to sustain class action suits. Staszak documents the clear decline in the number and percentage of class action suits, civil rights cases, and civil cases that reached trial in the federal courts. The numbers are staggering, suggesting the full impact of barriers to participation. It is also apparent that limiting access has unequal consequences. Groups and individuals that most need access are typically the ones who are most adversely affected. It is not surprising that access to the federal judiciary has gotten more difficult. But the reasons for the reduced access and their scope are eye-opening.

The author casts a light on the “judicial retrenchment” of court access, the “process by which a range of actors both exogenous and endogenous to the courts and Congress work to scale back access to the courts by targeting the institutional and procedural rules that govern political institutions” (p. 21). Casting light is an accurate assessment because much of what occurs, according to Staszak, is done at a “subterranean” level in the realm of procedural rules. The rules can and have been used to constrict access to the courts.

Staszak argues that attention to Court curbing, threats to jurisdiction, and “grand acts of politics” obscure the quiet and more important process of judicial retrenchment. There are many culprits across the political and institutional spectra that share in the process: “The goal of scaling back access to the courts comes from a multitude of actors both within and outside of the government” (p. 7). She argues that judicial retrenchment is as much—if not more—about Congress, bureaucrats, legal organizations, business, interest group politics, and judicial administrators acting with a variety of political and institutional goals in mind as it is about conservative judges on the nation’s courts. Staszak shows how partisans of all ideological stripes advanced procedures like Alternate Dispute Resolution (ADR) for different reasons and ultimately conservatives on the Court and in Congress were able to bend new and old rules to their advantage.

ASSESSING CONSTITUTIONAL PERFORMANCE

Vol. 27 No. 5 (June 2017) pp. 83-85

ASSESSING CONSTITUTIONAL PERFORMANCE, edited by Tom Ginsburg and Aziz Z. Huq. New York: Cambridge University Press, 2016. 442pp. Paper $39.99. ISBN: 9781316608357.

Reviewed by John E. Finn, Professor of Government Emeritus, Department of Government, Wesleyan University. Email: jfinn@wesleyan.edu.

This edited collection on the concept of constitutional performance is an important, interesting, and occasionally frustrating book. It will likely be a standard reference in the field of comparative constitutional politics for many years.

As is often the case with edited collections, this one is a bit of a mix. Some readers will find some nuts more appetizing than others, as did I. All of the chapters are impressive, but I was especially struck by Aziz Huq’s chapter on Hippocratic constitutional design, Roberto Gargarella’s chapter on Alberdi, Sumit Bisarya’s chapter on transitional provisions, and Dixon and Landau’s chapter on the constitutional minimum core.

The collection’s biggest strength is its catholic, ecumenical character. As Ginsburg and Huq make clear in their Introduction, they make no effort to advance a single or comprehensive definition of constitutional success or failure, and likewise make no stab at a singular definition or metric of constitutional performance. Their decision not to do so is one of the strengths and weaknesses of the book. It is a strength chiefly because the lack of direction allows the contributors to advance a wide variety of definitions and approaches, often in conversation and disagreement with one another.

This diversity of definition is explicit in, if not the theme of the first part of the book, entitled, aptly, “Defining Constitutional Performance.” But it also resonates in part 2, which addresses some of the concrete and specific challenges that face constitutional regimes (such as managing the transition from military to civilian rule, or in ensuring a minimum core of democratic competition, among others), and in part 3, which consists of four case studies.

One of the central disagreements in the book, discussed at length in the opening chapter by Ginsburg and Huq and visited in nearly every other chapter, concerns whether the assessment of constitutional performance is internal or external in character, as framed by the “perspective of the person engaged in the evaluation” (p. 7). By internal, Ginsburg and Huq mean an assessment informed by “the terms of the community to be regulated by [the] instrument” (p. 7). By external, they mean “assessing constitutional performance against a benchmark derived independently of local circumstances and contingent preferences within the relevant polity” ((p. 8) (One variety of external assessment “proceeds from a normative account of desirable features or products of a constitutional order” (p. 8)).

LET ME BE A REFUGEE

Vol. 27 No. 5 (June 2017) pp. 80-82

LET ME BE A REFUGEE: ADMINISTRATIVE JUSTICE AND THE POLITICS OF ASYLUM IN THE UNITED STATES, CANADA, AND AUSTRALIA by Rebecca Hamlin. New York: Oxford University Press, 2014. 229 pp. Cloth: $105. ISBN: 9780199373307 Paper: $30.95. ISBN: 9780199373314.

Reviewed by Anna O. Law, Political Science Department, CUNY Brooklyn College. Email: alaw@brooklyn.cuny.edu.


Who is a refugee? How do three of the richest nations in the world make that determination? Unlike most immigrants who voluntarily choose to move countries, refugees are pushed from their homelands by circumstances beyond their control, including, but not limited to: civil unrest, political persecution, drug or gang violence, or natural disasters. The treatment of these groups is subject to international frameworks set out in 1951 (p. 4). Those World War II era agreements’ purpose was to lay out basic protections and international norms for the treatment of persons fleeing persecution, but they did not force countries to take in refugees. The effectiveness of these international accords in protecting highly vulnerable populations is an empirical question in need of assessment.

How three of the most well-known immigrant-receiving nations treat these potential immigrants who seek to enter their territory without prior permission is the subject of Rebecca Hamlin’s book. Instead of focusing broadly on domestic politics, Hamlin zeroes in on one variable within it, what she terms the “refugee status determination” (RSD) regimes of each country. She defines the RSD as “1) the set of institutions that are responsible for conducting RSD and 2) the relationships and power dynamics among those institutions” (p. 9). While holding the RSD constant, she traces the creation of policy and adjudications process through the lens of the RSD institutions and institutional arrangements.

The greatest strength of the book project is its research design. Hamlin is right that most existing studies focus only on one country. The problem with single country studies is that although they can uncover disparities within a single country, they cannot assess the efficacy of international refugee protection efforts across nations. (See for example the influential REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM on the US case.) Hamlin has gone comparative and has chosen her case studies well. Each of the three nations: the United States, Canada, and Australia, are western industrialized democracies that are immigrant-receiving, as opposed to immigrant-sending, nations. As well, they have similar legal systems and strong judiciaries (p. 25-27). The comparative approach applied to RSD allows an empirical assessment of the extent to which international agreements further human rights protections. Hamlin draws the sobering conclusion that although “no host country has threatened to abandon the 1951 Convention altogether, and no country has managed to completely prevent asylum seekers from arriving…the power of the international refugee protection regime is wearing thin” (p. 60).

Hamlin’s multi-methodology approach conveys a textured understanding of the processes and mechanisms of the RSD machinery and how those in turn affect adjudications outcomes. The book draws on interviews, doctrinal analysis of key cases, searches of newspaper articles from major newspapers, her observations of asylum determination hearings, and examination of official statistics—all across three different countries. Hamlin weaves these together to process trace what the RSD is and how it undertakes adjudications in Chapters 4 (US), 5 (Canada), and 6 (Australia). These chapters provide a detailing of the administrative agencies and judicial institutions’ involvement (to varying extents) in the asylum adjudications in each country.

THE AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY, AND THE CONSTITUTIONAL ORDER

Vol. 27 No. 5 (June 2017) pp. 76-79

THE AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY, AND THE CONSTITUTIONAL ORDER, by David Rudenstine. New York: Oxford University Press, 2016. 344pp. Hardcover $29.95. ISBN: 9780199381487.

Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (MO). Email: tobias.gibson@westminster-mo.edu.

David Rudenstine, the Sheldon H. Solow Professor of Law at Cardozo Law School, offers a rebuke of the Supreme Court and its continued and increasing deference to the executive branch in matters related to national security. Rudenstine’s view, made clear by the title of the book, continues unabated throughout the work.

Rudenstine opens the book with the premise that “…the Supreme Court—has generally betrayed for over seven decades its responsibilities to hold the executive meaningfully accountable in cases the executive claims implicates national security” (p 3). In some ways, this thesis is surprising. Readers will no doubt recall Supreme Court cases such as YOUNGSTOWN SHEET & TUBE V. SAWYER, which ended the Truman administration’s seizure of the nation’s steel industry during the Korean War and more recent cases including HAMDI and BOUMEDIENE, both of which limited the executive branch’s unqualified holding of detainees during the War on Terror. And, the judiciary—if not the Supreme Court—has limited the reach President Donald Trump’s consecutive executive orders attempting to limit travel from MENA (Middle East and African Nations), Muslim majority nations. Several federal courts, most recently the Fourth Circuit Court of Appeals, in INTERNATIONAL REFUGEE ASSISTANCE PROJECT V. TRUMP, held that “Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation” (p. 12).

Yet, through diligent research and convincing argument, Rudenstine strongly supports his thesis. THE AGE OF DEFERENCE is organized into four sections, with Part One, “From Isolationism to Globalism” setting the stage for an increasingly weak Supreme Court in the face of an executive leading the free world in the wake of World War II. In Chapter One, Rudenstine notes that cases such as YOUNGSTOWN are, indeed, important. However, he avers against seeing these cases as evidence of a strong, empowered Court, and instead suggests that the “general disposition of the Supreme Court” (p. 11) has been prostration to the executive branch. He further suggests that because the rise of executive power has been due to the rise of the American influence on the world, judicial deference “will continue until the members of the Supreme Court conclude that the harms inflicted by undue deference in national security cases exceed whatever national interests the deference may be thought to be advancing” (pp. 15-16).

Chapter Two, “The Ingrained Narrative,” explains the popular view that the Supreme Court enables the executive branch in times of war and national emergency, but reasserts itself in times of peace, and utilizes the infamous KOREMATSU decision as to explain this narrative. However, Rudenstine also posits that this narrative is lacking in several dimensions—and this is the subject of the third chapter, in which he offers “A Second Look” at the dominant narrative. It is in the third chapter that the foundation of Rudenstine’s argument begins to solidify. Using cases from the Civil War and World War I eras, Rudenstine notes much of what observers of the “Strategic Model” of judicial decision making (Epstein and Knight, 1997; Bergara, Richman and Spiller, 2003) have noted for years: mainly that presidents “may refuse to comply with an order” and that Congress can “use its authority to retaliate against” the Supreme Court (p. 41). Despite the “remarkable timidity” of the Court in these eras, he argues in Chapter Four that the number of [*77] cases related to questions of national security increased dramatically in the wake of World War II, and that judicial deference also increased dramatically. Importantly, here Rudenstine argues that the High Court not only will decide cases in support of the executive branch, but has created “technical legal doctrines of deference” allowing the Court to dismiss many national security cases without ruling on the legal merits of those cases (p. 65).

THE COMING OF THE NIXON COURT: THE 1972 TERM AND THE TRANSFORMATION OF CONSTITUTIONAL LAW

Vol. 27 No. 5 (June 2017) pp. 73-75

THE COMING OF THE NIXON COURT: THE 1972 TERM AND THE TRANSFORMATION OF CONSTITUTIONAL LAW, by Earl M. Maltz. Lawrence: University of Kansas Press, 2016. 250pp. Cloth, $34.95. ISBN: 978-070062278-8.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff@desu.edu.

Rutgers University School of Law Professor Earl M. Maltz combines two approaches to studying constitutional law—case studies of individual justices and examination of several areas of the law—and applies them to a specific time period in U.S. Supreme Court history, the 1972-73 term. Justifying the latter period partly due to the fact that all four of President Richard Nixon’s appointees were present on the Court initially that year, Maltz contends that “one would be hard-pressed to find another term in the late twentieth century in which the Court dealt with so many issues with major implications for the future of constitutional law” (p. viii). The study endeavors to explain how the interaction of the justices’ disparate views, judicial institutionalism, and changing times influenced case rulings on several controversial topics in the 1972-73 term.

Though there is no grouping of chapters in the book, the topics can be covered in terms of background, areas of constitutional law, and conclusion. Chapter 1 assesses reasons for the
emergence of the Burger Court, named after Chief Justice Warren Burger. These included a backlash against progressive gains of the 1960s together with the election of Richard Nixon in 1968. The chapter likewise presents biographies of all justices who were on the Court in 1972, including Nixon appointees Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Maltz observes that because the balance of power on the Court in 1972 was held by a combination of Nixon appointees and holdovers, the outcome was not easily labeled ideologically. Chapter 2 probes how the Court’s 1971 term was a harbinger of future trends. For instance, just as case rulings in the areas of racial discrimination and Sixth Amendment right to counsel seemed to demonstrate a conservative tilt, so the lead-up to the 1972 FURMAN V. GEORGIA decision pertaining to capital punishment conveyed a continuation of progressive thinking.

Chapters 3 through 6 cover reapportionment and voting rights, obscenity, criminal procedure,
and school desegregation, respectively. The Court as led by Chief Justice Earl Warren significantly impacted the approach to legislative apportionment. In the 1972-73 term, several
rulings connoted a move away from an expansive interpretation of rights in this area. On the subject of obscenity, Chief Justice Burger himself wrote the majority opinion in the 1973 MILLER V. CALIFORNIA case, which permitted greater state discretion in imposing regulations. Maltz finds that criminal procedure cases, while continuing to take up a large portion of the Court’s caseload, did not bring any major breakthrough during the 1972-73 term. As a consequence of the 1971 ruling in SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, judges gained wider authority to impose changes in order to eradicate segregation. Bussing was debated at both the national and state level and became an issue in the 1972 presidential campaign.

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.