POLITICIZED JUSTICE IN EMERGING DEMOCRACIES: A STUDY OF COURTS IN RUSSIA AND UKRAINE

by Maria Popova. New York, NY: Cambridge University Press, 2012. 210 pp. Cloth $103. ISBN 978-1107014893. Paper $29.95 ISBN: 9781107694033.

Reviewed by Diana Kapiszewski, Department of Government, Georgetown University. Email: dk784 [at] georgetown.edu

pp.367-371

POLITICIZED JUSTICE IN EMERGING DEMOCRACIES is a wonderful book that will teach its readers a great deal about courts in two countries of critical contemporary importance – Ukraine, on the border between East and West, and its daunting Russian neighbor. The central puzzle that motivates the book is why the rule of law in general, and judicial independence from incumbent politicians in particular, have proven so hard to establish in what Popova refers to as “emerging democracies” – polities that are neither consolidated democracies nor consolidated autocracies.

Popova employs both quantitative and qualitative analytic techniques to develop and advance a “strategic pressure” theory of judicial independence. She argues that in emerging democracies – where greater political uncertainty means politicians cannot be sure what type of regime, or which rules, will be in place in the short term – political competition motivates power-hungry incumbents to pressure courts to rule in their favor, thereby compromising their independence. Why is this so in such polities? First, Popova reasons, courts are more useful to vulnerable leaders in these contexts, where weak party histories and party labels mean that unfavorable court rulings can be damning for challengers, boosting incumbents’ chances of re-election. Second, some of the benefits that independent courts offer, such as guarantees of policy stability, are less relevant in politically unstable countries where uncertainty augments the importance of short-term gains. Finally, the costs of pressuring courts are lower in such polities, for example, when leaders can avail themselves of pressuring mechanisms “inherited from” an authoritarian regime, and when that pressure can be concealed given weaker press freedoms (pp.34-38). While Popova notes that she cannot test these compelling propositions, doing so represents a promising area for future study.

As reasonable as Popova’s theory sounds, its underlying logic (and that of similar arguments advanced by Trochev [2004] and VonDoepp and Ellet [2011]) runs counter to the prevailing academic consensus. Insurance theory, which has emerged in the past two decades as a central theory of judicial empowerment (Ramseyer 1994, Magalhaes 1999, Ginsburg 2003, Finkel 2004), argues that political competition motivates incumbent politicians to empower courts so that they can serve as an effective check on new leaders. As Popova rightly notes, insurance theory was developed to explain incumbent politicians’ behavior vis-à-vis high courts that decide [*368] constitutional cases, often with very broad effects. It is consequently an important theoretical question whether that theory also explains incumbent politicians’ behavior towards lower courts that decide more routine cases with more narrow effects. An exciting path for future inquiry that Popova’s work highlights is precisely why the logic of judicial empowerment might differ so much from high courts to lower courts.

CAPITALISM V. DEMOCRACY: MONEY IN POLITICS AND THE FREE MARKET CONSTITUTION

by Timothy K. Kuhner. Stanford: Stanford Law Books, Stanford University Press, 2014. 376pp. Cloth $90.00. ISBN: 978-0804780667. Paper $27.95. ISBN: 978-0-8047-9156-4. E-book $27.95. ISBN: 978-0-8047-9158-8.

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

pp.361-366

Law professor Timothy Kuhner has written an exhaustive, learned analysis of the Supreme Court’s campaign finance jurisprudence, drawing on legal, political science, and economics perspectives. It is at the same time a sustained, passionate polemic against the contributions of the Roberts Court to that jurisprudence. The book has seven chapters, followed by 53 pages of footnotes.

Chapter 1, The Question Raised by America’s Design, depicts our election system as distorted by massive spending on the part of a modest number of individuals and organizations, driven by their desire for access and influence, and by the incessant fundraising appeals of officeholders and candidates. About 70% of the money in politics is supplied by 0.37% of the population. Money is necessary, though not sufficient, for electoral success. Kuhner traces concerns over the power of money in politics, and laws aimed at limiting that power, back to the country’s origins, and laments that many such laws have now been erased from the books by the Supreme Court. He situates the problem in a key constitutional question that the Framers failed to address clearly: “American values and institutions derive from two different systems [capitalism and democracy], each of incredible power, whose terms are sometimes irreconcilable” (p.28).

Chapter 2, Free Market Democracy, identifies BUCKLEY V. VALEO as the starting point for the Court’s entanglement of democratic theory with the theory of free market capitalism, when it held that campaign spending is a First Amendment right. Certain limits on contributions to candidates were upheld, on the ground that preventing real or apparent corruption was a valid concern. In contrast, limits on independent spending were struck down, and equalizing political influence and ability to run for office were declared to be unconstitutional goals, wholly foreign to the First Amendment.

Kuhner, appealing to a variety of theorists and empirical studies, vehemently disagrees. The Court’s understanding of free speech bespeaks a crude neoclassical view of capitalism, in which regulating the buying and selling of political speech constitutes an impermissible infringement of the free market, betraying a “Lochnerian indifference to realities of control, power, and authority” (p.58). Not only was it an error to use any economic theory as a means of constitutional interpretation, but the Court used a flawed and biased economic theory, perhaps inspired by Milton Friedman, that assumes a perfect, fully competitive [*362] market.

UNDERSTANDING CLARENCE THOMAS: THE JURISPRUDENCE OF CONSTITUTIONAL RESTORATION


by Ralph A. Rossum. Lawrence, KS: University Press of Kansas, 2014. 296pp. Cloth $34.95. ISBN 978-0-7006-1948-1.

Reviewed by Helen J. Knowles, Government Department, Skidmore College. Email: hknowles [at] skidmore.edu.

pp.357-360

“Having written ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION, I thought it would be instructive to focus my research on the Supreme Court’s other unabashed originalist, Clarence Thomas, and to compare and contrast the two jurists’ approaches to constitutional and statutory interpretation.” UNDERSTANDING CLARENCE THOMAS: THE JURISPRUDENCE OF CONSTITUTIONAL RESTORATION is, as political scientist Ralph Rossum observes, the “result of that research” (p.vii).

Eight years ago I wrote a review of Rossum’s volume on Justice Scalia (Knowles 2006; Rossum 2006). While I generally praised that book, I criticized the absence of contextual analysis that would have bolstered our understanding of Scalia by situating him within the institution of which he is a part. I also expressed concern about Rossum’s rose-tinted view of Scalia’s work. While the first criticism can also be applied to UNDERSTANDING CLARENCE THOMAS, the second cannot. Rossum has provided readers with a main argument that is entirely persuasive in its substance, and objective in its presentation.

The book is divided into five chapters, each addressing a different area of the law: federalism (two chapters), “substantive rights,” criminal procedure, and race and equality. These are preceded by an introduction that provides an overview of the appointment and confirmation of Thomas, and the ways in which scholars typically perceive him, and a chapter introducing readers to Thomas’s brand of originalism.

Rossum focuses his attention on what Justice Thomas has written or said (judicially or in extra-judicial speeches), for as Justice Felix Frankfurter once remarked, “voting is one thing and expressing views in support of a vote quite another” (quoted in O’Brien 2011, p.280). However, for all the strengths that can be identified in Rossum’s work with these materials, one methodological shortcoming is evident. In the book’s final chapter (predictably entitled “No Longer Doubting Thomas”), Rossum briefly mentions the papers of former Justice Blackmun. He is clearly aware of the immense scholarly value that these manuscripts hold for the author of a monograph about one of Blackmun’s Supreme Court colleagues. Rossum also acknowledges that this repository of information has the potential to shed significant light upon one “critical matter” relating to Justice Thomas’s jurisprudence: “has Thomas voted with Scalia or Scalia with Thomas? Put another way, how often has Scalia shined Thomas’s shoes?” (p.216) What Rossum does not do, however, is to [*358] make use of the Blackmun papers beyond simply observing that in SUPREME CONFLICT Jan Crawford Greenburg found, in those manuscripts, “numerous instances when Scalia changed his initial vote in critical cases and voted with Thomas after he read draft opinions written by Thomas” (p.216) (Greenburg 2007). This reviewer was disappointed that some of these “critical cases” were discussed in the book but without reference to the collegial and institutional interactions. Here Rossum missed a valuable methodological opportunity to give his analysis greater contextual substance.

CIVIL RIGHTS IN AMERICAN LAW, HISTORY, AND POLITICS


by Austin Sarat (ed). New York: Cambridge University Press, 2014. 266pp. Hardback $95.00. ISBN: 9781107039292

Reviewed by David L. Jones, Department of Political Science, University at Albany. Email: djones2 [at] Albany [dot] edu

pp.352-356

The common theme of the works collected in CIVIL RIGHTS IN AMERICAN LAW, HISTORY, AND POLITICS (hereafter CIVIL RIGHTS) is that, contrary to much commentary from the Right, racism is not just a problem of the past and making color disappear from the law does not make America a colorblind society. Moreover, another theme suggests that a color-blind philosophy to law ignores – with very real consequences – the structural and institutional discrimination that still pervades our society. Finally, Civil Rights speaks to the “myth of rights” literature pioneered by editor Austin Sarat’s longtime collaborator Stuart Scheingold by posing a challenge to the “myth of civil rights” that emphasizes formal changes over substantive ones.

Over the past ten years, conversations from the Law, Knowledge, and Imagination Symposia (LKI) at the University at Alabama School of Law have resulted in the production at least eight books, each of which have been edited by LKI Symposia chief organizer, Austin Sarat. At the 2014 Law and Society Association meeting in Minneapolis, a panel devoted to the contributions of Stuart Scheingold and Sarat included high praise of Sarat’s prolific ability to encourage and cultivate collaborative efforts between scholars. That the four most recent works springing from LKI have been published in under a year and contain thirty-three different contributors is a testament to Sarat’s lauded ability to bring scholars together. In this volume, each chapter is followed by a short commentary by a separate author. The commentary complements the preceding chapter by building on its arguments and creating dialogue between the authors. This produces a dynamic that I believe could be useful in upper level undergraduate seminars -- though the price-tag might prove too much for some students. As is true with the LKI Symposia, this work should attract a wide audience of legal, political, historical, social, and interdisciplinary scholars interested in civil rights in American law.

Chapter One, “Race Law Cases in the American Story” by Devon W. Carbado and Rachel F. Moran is a historical survey of cases involving race from all levels of American courts. The primary argument is that our understanding of civil rights is often limited to the struggles of African Americans – a point made ironically by the book cover of African American civil rights leaders – which has the effect of masking both the multiracial nature of civil rights struggles and new ways of understanding racial inequality. A closer examination of the hardships of other groups such as Native Americans, Latinos, and Asian Americans, [*354] illuminates the complexities of racial and legal interaction. The second argument, unannounced at the onset, is that a colorblind philosophy to racial discrimination cases hurts efforts to alleviate contemporary inequality. The philosophy, they argue, is unsuited for today because it harkens back to a time when courts were dealing with blatant racial caste systems. Today, the legacy of color-blind standards set out in cases like PEREZ V. SHARP and LOVING V. VIRGINIA are used to strike down state remedies for the inequalities caused by the historical discrimination of those very systems (see PARENTS V. SEATTLE or SHELBY V. HOLDER).

DISASTER AND SOCIOLEGAL STUDIES

by Susan Sterett, (ed). New Orleans: Quid Pro, 2013. 266pp. Cloth $54.99. ISBN: 978-1-61027-208-7. Paper $36.99. ISBN: 978-61027-205-6. E-book $9.99. ISBN: 978-1-61027-206-3.

Reviewed by Adelaide H. Villmoare, Department of Political Science, Vassar College. E-mail: villmoare [at] vassar.edu.

pp.349-351

This volume undertakes a mission to demonstrate that socio-legal research can significantly contribute to the burgeoning field of disaster studies. In the United States 9/11, Katrina, wildfires, mudslides, and Deepwater Horizon particularly have fueled these studies, made all the more compelling globally by the 2004 Indian ocean tsunami, the 2010 Haiti earthquake, the 2011 Fukushima Daichi nuclear destruction, and an ongoing sense that climate, politics, and economic “development” will multiply and intensify disasters across the globe.

Coming out of a workshop sponsored by the Onati International Institute for the Sociology of Law, this book presents a wide swath of experts’ considerations of the roles of law in creating, sustaining, ameliorating, overcoming, and preventing disasters from terrorist attacks to wildfires to earthquakes to oil spills. Cutting into this diversity of research, editor Susan Sterett observes that “Disaster is variably juridified, or governed by reference to legal rules with accountability to legal institutions” (p.3). It is this variability which characterizes the chapters that follow.

As with many collections, this one includes a mix of concerns. There is little connection across the articles, except the intention of demonstrating the significance of law (imbued with many meanings) to understanding and analyzing any number of disasters. But, as Thomas A. Birkland argues in the concluding chapter, socio-legal scholars have, until recently (e.g. Sarat and Lezaun 2009, Farber et al. 2009), been largely absent from mainstream disaster studies and are just coming fully into dialogue with this field. There is rich terrain for contributions from socio-legal scholars, of which this book is one representation.

The eleven chapters and Sterett’s wide-ranging and thoughtful introduction approach law and disasters from instrumental and non-instrumental perspectives. Where Juli Ponce’s article investigates land planning policies in Spain and the EU in preventing disasters and Arthur F. McEvoy examines “situations in which legal agencies themselves contribute to conditions under which disasters (technological or natural) take place” (p.156), others interrogate epistemological premises for state and NGO understandings of responsibilities for managing disasters. Pat O’Malley’s theoretical piece, for instance, places the analysis of law and disaster within the context of “the neo-liberal dream of a society of extreme entrepreneurs” (p.23). Considerable ground is covered in these essays.

THERMONUCLEAR MONARCHY: CHOOSING BETWEEN DEMOCRACY AND DOOM


by Elaine Scarry. New York: W.W. Norton and Company, Inc, 2014. 592pppp. Cloth $35.00. ISBN: 978-0-393-08008-7.

Reviewed by Jasmine Farrier, Department of Political Science, University of Louisville. Email: j.farrier [at] louisville.edu

pp.342-348

Books on US presidential war power are always topical, reflecting the modern constitutional order. Although the War Powers Resolution was passed in 1973 to increase congressional control over foreign policy, Presidents have since initiated over 135 US military engagements abroad (Grimmett 2012). This number does not include hundreds of drone strikes in Yemen and Pakistan over the past decade, nor the armed advisors President Barack Obama sent to Iraq this past June. The cold war-era unilateral “Commander-in-Chief” narrative persisted after the collapse of the Soviet Union and was reinvigorated after 9/11. Over the past dozen years, a combination of new and old legal rationales for executive power transcended partisan change in the White House and continue today, despite signals of presidential war fatigue in public opinion and Congress. As he pivoted from the threat of air strikes in Syria in 2013, President Obama still insisted that he possessed a singular capacity to judge the national interest abroad, and the constitutional power to act. But, he said, “I believe our democracy is stronger when the President acts with the support of Congress” (White House 2013). For much of the past century, presidents have treated congressional war powers as an institutional courtesy at best (irrelevant annoyance at worst) rather than a constitutional requirement. No party in Congress or ideological bent in the federal court has made a serious attempt to correct this view. The default assumption of US foreign policy is the nuclear war model: the fate of the world rests on a single person.

Elaine Scarry is deeply alarmed by these developments. In THERMONUCLEAR MONARCHY: CHOOSING BETWEEN DEMOCRACY AND DOOM, she argues that the means (concentrated decision making) and ends (mass bodily injury) of nuclear weapons cut the social contract to pieces and undermine the constitutional principles of separation of powers, popular consent, and deliberation. And she goes further to say all this is true even if these weapons are never again used. She begins with a quotation from President Nixon in 1974: “I can go into my office and pick up the telephone and in 25 minutes 70 million people will be dead” (p.14). The goal of the book is to convince us that the boast itself – certainly true, if unlikely to be proven so – demonstrates that nuclear weapons are incompatible with the virtues and structures of self-government. In addition to tracing increases in presidential power, which have been widely noted by historians and political scientists, Scarry offers new perspectives on how Congress has allowed its war muscles to atrophy, as well as the significance of shrinking public stakes in war decisions and execution. [*343]

Professor Scarry presents these arguments in a social theory framework (she is the Cabot Professor of Aesthetics and General Theory of Value in the Department of English at Harvard College). She weaves together a variety of scholarly approaches in THERMONUCLEAR MONARCHY, including ethics, history, law, linguistics, philosophy, and classics. Scarry does not engage much contemporary political science literature on any of the three branches, choosing instead to emphasize primary sources in the institutional parts of the book, such as presidential and congressional speech, legislative processes, and documents related to the US Constitution’s creation and ratification. Throughout, Scarry’s writing and argument style will be more familiar to readers with a background in contemporary literary theory and other fields in the humanities. The book was not written to explain the technical side of nuclear weapons development, nor the international treaties and protocols that govern their existence today. Readers of this particular review should also know that there is little discussion of case law surrounding foreign policy and executive branch action (although she cites Joseph Story’s Commentaries on the Constitution several times). But putting aside Professor Scarry’s choices of emphasis and presentation, her provocations are bracing and deserve attention from scholars of political science and law, who rarely see normative constitutional treatises of this book’s ambition and scope (outside the oeuvres of Bruce Ackerman, Louis Fisher, and Sanford Levinson, among a few others).

THE CLASSICAL LIBERAL CONSTITUTION: THE UNCERTAIN QUEST FOR LIMITED GOVERNMENT

by Richard A. Epstein. Cambridge, Massachusetts: Harvard University Press, 2014. 704pp. Cloth $49.95. ISBN: 9780674724891.

Reviewed by Charles F. Jacobs, Department of Political Science, St. Norbert College.

pp.337-341

One of the hottest and most debated books among academics, pundits and the general public alike this year is Thomas Pikkety’s work CAPITAL IN THE TWENTY-FIRST CENTURY (2014), an examination of the impact and role of politics and public policy on economic inequality under capitalist systems. Central to Pikkety’s argument is the notion that governments could, if they wished, do more to undo the growing gap between the rich and the poor. It may seem unusual to preface a review of a work of constitutional theory with reference to a scholarly treatise on economics. However, Richard Epstein’s thoughtful and expansive work is as much about economics as it is about law. Epstein presents his work as a “distinctive synthesis of constitutional law that does not fall squarely within either the conservative or progressive camp” (p.ix), instead utilizing a rigorous application of classical liberal theory to understand and interpret the founding document. As a result, the reader is challenged to contemplate the Constitution not only as a document that framed a government and created a well of fundamental freedoms, but a text that established a system of limited government that secures liberty primarily through the protection of private property. And protection comes not from an active regulatory scheme but instead a government that reduces significantly its impact on markets and the economy through a greater reliance on common law principles and the narrow exercise of government power. Although Epstein likely did not intend it (he began the book in 2006), the work serves as a counterweight to arguments, like that of Pikkety, that promote the positive force of government to ‘fix’ the capitalist system. Epstein instead promotes a constitutional vision that restricts the exercise of power to allow more freedom for property interests, market forces, and private choices.

To an extent, the entire book is an exercise in counter-factualism. Epstein’s thesis “is that the older view of the Constitution [classical liberalism] was correct, not only for the conditions of 1787 but also, most emphatically, for vastly more complex conditions today. “The book is offered in the spirit of explaining how matters should have evolved and why the original classical liberal constitutional order would have served this nation better” (p.6). The older view according to Epstein reflects the founders’ deep-seated fear of faction and government power that necessitated the creation of structures intended to exercise authority only over those activities absolutely necessary to the governance of the nation. He contrasts this approach to the current and, in his view, theoretically incorrect progressive legal paradigm that has been ascendant since at least the New Deal era. Part I of the book lays out his understanding of classical liberal thought as understood [*338] and applied during the era of American nation building, followed by a review of progressive constitutionalism and the manner in which it strays from the founders’ original design. For Epstein, contemporary difficulties spring from the rise of popular democracy that led to greater regulation (in particular of the economy) that has the effect of creating monopolies by government rather than their control (p.44).

Epstein’s touchstone for the modern progressive approach is Associate Justice Stephen Breyer’s work ACTIVE LIBERTY (2005), which offers a pragmatic vision of constitutional interpretation. Epstein argues instead for an interpretive method based on textualism, which follows more closely the approach of Breyer’s colleague Antonin Scalia. Epstein notes that this method is more likely to lead to a “single standard reading of the text” (p.46) and, analogous to the interpretation of contracts, provides avenues by which ambiguities might be resolved more clearly. He goes further than the standard approach to this interpretive method by suggesting an additional layer of analysis that guards against the erosion of nontextual commitments – the principle of anticircumvention, explanations for the exercise of police powers, and remedial choices – that undergird the constitutional system and help to avoid the problems of applying living constitutionalism that is typically driven by current politics and debates.

LAW AND DEVELOPMENT OF MIDDLE-INCOME COUNTRIES: AVOIDING THE MIDDLE-INCOME TRAP

by Randall Peerenboom and Tom Ginsburg (eds). New York: The Cambridge University Press, 2014. 386pp. Cloth $99.99. ISBN: 978-1-107-02815-9. Paper $39.99. ISBN: 978-1-107-60919-8.

Reviewed by John Alexander, Department of Political Science, University of California, Irvine. Email: jsalexan [at] uci.edu.

pp.333-336

This edited volume contains a diverse set of chapters focusing on issues of law and development in middle-income countries (MICs) from legal scholars and political scientists, as well as NGO workers. The book’s subtitle suggests it focuses on the ‘middle-income trap’ or why so many countries fail to progress out of middle-income status. However, the essays inside address a number of different issues associated with MICs including developmental models, good governance, and the judicialization of social and economic rights. The resulting work makes a clear contribution to our understanding of the assorted challenges facing this important group of countries. It will be of use to scholars across disciplines with interests in the developing world and offers a great introduction to those unfamiliar with some of the issues confronting MICs.

The book contains sixteen chapters divided across five parts and seeks answers to a number of different questions. Randall Peerenboom’s excellent introduction outlines eight different questions related to MICs that are addressed to varying degrees in the following chapters. These include: is MIC a useful analytic category, is there a middle income trap, other than wealth what do countries that have moved from MIC to high-income country (HIC) have in common, what are the benefits and challenges of globalization for MICs, what is the relationships between wealth, the rule of law, and good governance, and how can MICs best deal with pressing socioeconomic issues? The individual chapters use a variety of different methods and almost all are comparative. Regionally, the book focuses on Central and Eastern Europe, Asia, and Latin America.

Part I examines ‘The Politics of Development in MICs’ and contains two chapters that highlight how political considerations can prevent MICs from adopting the policies necessary to advance beyond middle-income status. In chapter 2 Tom Ginsburg argues that MICs must create more autonomous courts in order to join the ranks of HICs. However, autonomous courts cannot develop without particular institutional underpinnings and political conditions that are often missing in MICs. These prerequisites are often absent because of decisions made earlier in the development process. Surain Subramaniam compares the developmental states of Singapore and Malaysia in chapter 3, and argues Singapore’s success is due in part to political interests taking a backseat to the goal of development. In contrast, Malaysia struggles to deliver on its development goals because policies are [*334] altered to make concessions to politically powerful ethnic groups. As a consequence, authoritarianism remains stable in Singapore, while Malaysia’s government confronts increasing calls for liberalization in the face of the government’s failure to deliver on its economic promises.

NATURE’S TRUST: ENVIRONMENTAL LAW FOR A NEW ECOLOGICAL AGE

by Mary Christina Wood. New York: Cambridge University Press, 2014. 436pp. Cloth $115.00. ISBN 978-0521195133. Paper $45.00 ISBN: 978-0521144117.

Reviewed by Sam Kalen, Professor, University of Wyoming College of Law. E-mail: skalen [at] uwyo.edu

pp.329-332

Climate change is the defining challenge for modern environmental law, and Mary Wood’s NATURE’S TRUST presents an ambitious argument for why modern environmental law has failed and why we need a “Nature’s Trust.” Her book “aims to bring environmental law face to face with the new ecological age” and “presents a transformative framework – Nature’s Trust – to fundamentally redirect government’s environmental policy from its present course of legalizing colossal damage to a project of epic restoration” (p.5). Animated by our consumption of nature’s capital – the ecological services provided by our air, land, water, and wildlife resources, and concerned that we are depriving future generations of those resources, Mary Wood constructs a novel legal paradigm based on the traditional principles of fiduciary obligations to protect our ecological resources as well as secure future generations’ ability to enjoy those resources. This new paradigm relies on active citizen involvement with the courts to constrain governmental actors from dissipating our ecological trust assets. And it would impose on those governmental actors a fiduciary obligation as a trustee to protect the assets for the “public” as the beneficiary.

A dominant theme permeating NATURE’S TRUST is that federal environmental agencies have been “captured” by the industry they regulate, and that courts contribute to this phenomenon by affording those agencies “deference” when parties challenge agency decisions. Although the Justices on the modern Supreme Court are currently engaged in a dialogue about the breadth of deference afforded agencies (this became evident in the parry between Justices Scalia and Chief Justice Roberts in CITY OF ARLINGTON 2013), the extant judicial deference doctrine is premised upon a few core principles. The doctrine assumes, when Congress has not spoken to the precise issue being addressed, that it implicitly intends to delegate to the administering agency the authority to make a reasoned decision about how best to address that issue. The application of deference further treats agency officials as “experts” capable of making policy decisions that are beyond the ken of the judiciary.

This general acquiescence to agency decisions, Mary Wood opines, is both destructive to the environment and to democracy itself. It is environmentally deleterious, she suggests, because federal environmental agencies are not maximizing the potential under modern environmental statutes to address critical environmental threats, such as from climate change. Instead, they are “often operat[ing] in tight alliance with industry and private interests” (p.50). Here, NATURE’S TRUST accepts the theory of agency “capture:” that as environmental [*330] agencies have become too cozy with the regulated community those agencies have softened their implementation and enforcement of the 1970’s era environmental statutes. This, she concludes, then vests the Executive Branch with too much power, tilting the balance of power in our constitutional structure (p.53). And Part 1 of NATURE’S TRUST chronicles how a too powerful Executive Branch has allowed politics and influence to shape decisions “to favor industry over the public interest [and] threaten[ing] democracy itself” (p.102). The result, therefore, is that agencies promote Nature’s destruction rather than retard environmental threats (pp.50-51).

REBELS AT THE BAR: THE FASCINATING, FORGOTTEN STORIES OF AMERICA’S FIRST WOMEN LAWYERS


by Jill Norgren. New York: New York University Press, 2013. 286pp. Cloth $30.00. ISBN: 9780814758625

Reviewed by Kiki Jamieson, The Fund for New Jersey. Email: kjamieson [at] fundfornj.org

pp.326-328

Stories of the struggles faced by the United States’ first women lawyers, related judiciously by Professor Jill Norgren, bring to life women who have not often been the subjects of study. Like the best accounts of plaintiffs in landmark cases, REBELS AT THE BAR highlights the happenstance of law and legal history. Although with modern hindsight the inclusion of women as lawyers seems inevitable, the actual record Norgren highlights shows that it was instead the outcome of lucky coincidences, benevolent male supporters, and, most importantly, the dogged perseverance of a handful of remarkable women. Through detailed explorations of the lives of eight women, and sojourns into the experiences of many others, Norgren charts the slow progress from individual women’s perhaps quixotic desire to be lawyers in the late 1860s, to the burgeoning camaraderie of the “sisters-in-law” who formed the Congress of Women Lawyers in 1893, to 1900 when twenty women had been admitted to the U.S. Supreme Court Bar and more than 1,000 identified themselves as lawyers.

Myra Bradwell, the most famous of the group, was the subject of an 1872 U.S. Supreme Court decision affirming state’s powers to regulate the practice of law. She is known to even beginning students of legal history as the object of Justice Bradley’s hyperbolic concurring opinion, in which he declaimed:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases (BRADWELL V. THE STATE OF ILLINOIS, 83 US 130 (1873) quoted at pp.140-142).

But Norgren tells us something new: that “lawyers in the courtroom laughed out loud as Justice Bradley read his theory of separate spheres” (p.42). These disparate reactions to the idea of women lawyers are explored in great detail through six chapters of biography.

STATEBUILDING FROM THE MARGINS: BETWEEN RECONSTRUCTION AND THE NEW DEAL

by Carol Nackenoff and Julie Novkov (eds). Philadelphia: University of Pennsylvania Press, 2014. 320pp. Cloth $59.95. ISBN: 978-0-8122-4571-4.

Reviewed by Brandon Thomas Metroka, Department of Political Science, Syracuse University. Email: btmetrok [at] syr.edu

pp.321-325

In an enjoyable, well-researched, and well-edited compilation of eclectic case studies edited by Carol Nackenoff and Julie Novkov, scholars examine how non-state actors of various civic, social, and ideological groups during the Progressive Era brought the state back in as a means of achieving desired policy ends. The accounts are notable for drawing attention to previously unexamined policy areas that provide leverage for claims that statebuilding is not always rational or linear, the distinction between public and private actors is not so cut-and-dried, and that the agency of actors is bounded by institutions and prevailing ideologies of the public good. Taken together, the chapters of this important contribution to the subfield of American Political Development exemplify the quintessential nature of the fragmented, piecemeal, inconsistent, and often jarring development of the capacity of the American state.

Contemporary scholarship in American Political Development has taken to heart the call to “bring the state back in” (Evans, Rueschemeyer, and Skocpol, 1985) to analyses concerning the development of administrative capacity of the American apparatus. Law figures prominently in this burgeoning line of inquiry; recent accounts explore the relationship between the regulatory power of private lawsuits and the expansion of the American Bureaucracy across several agencies, positing the conditions that empower or constrain agencies as they seek to augment enforcement powers (Mulroy, 2012). Yet, the focus on the agency of bureaucratic entrepreneurs (Carpenter, 2001) and the attention to the role of “courts and parties” as antecedents of the American administrative apparatus (Skowronek, 1982) has come at a price. The upshot has been somewhat narrow inquiries that gloss over the contributions of private associations operating within prevailing legal ideological currents to the development of state capacity. Nackenoff and Novkov’s volume is a welcome addition and necessary qualification to extant accounts of the building of the American state.

The ontological basis underlying all of these studies is that the development of state capacity is not “driven by a unified set of intentions, either those of private advocates or state actors.” Relatedly, the nature of statebuilding requires expanding the definition of political development from a durable shift in governing authority “resulting in a new distribution of authority among persons or organizations within the polity at large or between them and their counterparts outside” (Orren and Skowronek, 2004: 123), so as to untether “governance from direct association with [*322] state institutions and actors, thereby increasing the scope for identifying shifts” (p.21). The agency of policy entrepreneurs alone cannot account for increased state capacity, nor can longstanding institutional arrangements and cultural rhetoric be ignored as critical causes of the fractured development of the American state.

The volume is loosely organized by policy content, and is further divided into two broad areas of inquiry: the relationship between state actors and groups of non-state policy demanders, and the power of law to both constrain and enable the transformation of statebuilding capacity. Public law and sociolegal scholars will find much to like in these narratives, though the focus on law varies substantially. For example, legal ideology looms large in Ann Marie Szymanski’s examination of the relationship between Progressive Era police powers jurisprudence and both the national and state development of public wildlife protection. No less intriguing is the interplay between common law conceptions of morality and their effect on the development of the “animal welfare state” during the Progressive Era, as expounded by Susan J. Pearson and Kimberly K. Smith. Moreso than any other contribution to this volume, Pearson and Smith examine the complicated interplay between police powers legislation aimed toward protecting the public good, the entrenched doctrine of property rights, and the emerging individual rights jurisprudence of the Progressive Era. Progressive Era police powers Jurisprudence, as well as the jurisprudence of citizenship formed in the crucible of Reconstruction, is meticulously detailed by Julie Novkov as she compares the failed promise of Reconstruction for freed blacks to the Republican Party’s success in stigmatizing and ultimately outlawing polygamy in the Utah Territory.

HUMAN RIGHTS UNDER STATE-ENFORCED RELIGIOUS FAMILY LAWS IN ISRAEL, EGYPT AND INDIA

by Yuksel Sezgin. Cambridge: Cambridge University Press, 2013. 322pp. Cloth $99.00. ISBN: 978-1107041400.

Reviewed by Martin Edelman, Professor Emeritus, Political Science, University at Albany; Adjunct Professor, Kingsborough C.C., CUNY. ME354 [at] albany.edu

pp.318-320

This is an important book for students of comparative government and comparative law. Approximately one-third of the world’s population live under enforced religious family law systems. Professor Sezgin examines three different variations – in Israel, Egypt and India – to explore the impact this has on the daily lives of people. It is not a pretty picture. While journalistic and scholarly reports focus on macro-political trends, fundamental human rights of vast numbers of people are silently circumscribed by the religious family laws governing their domestic behavior.

Israel calls itself the Jewish State, but what that means is far from clear. Israel is not a theocracy. It does not enforce all the norms of Judaism as part of its operating legal system. Neither is Israel a completely secular state. Like Muslims, Druze, Bahai, or the members of the ten state-recognized Christian communities, the Jews living in Israel are mandatorily subject to the jurisdiction of religious courts. There is, for example, no civil law dealing with marriage and divorce. Rather those laws depend upon a person’s assigned religious community. As Sezgin notes, this means that in regards to marriage and divorce, people are treated “first and foremost as members of their [religious] communities rather than [as] rights-bearing equal citizens” (p.78).

Marriage and divorce for Israel’s Jewish majority (approximately 75% of the population) is governed by Halakhah (rabbinic law) as interpreted by Orthodox Jewish dayanim [judges] in the Rabbinical Courts. Non-Orthodox Jewish Israelis must conform to those norms or remain unmarried. Individuals converted by Reform or Conservative Rabbis are not considered Jewish by the dayanim and cannot marry in Israel. The large number of Russians and Ethiopians who have immigrated to Israel under the Law of Return (for Jews) but who are not considered Jewish by the Rabbinate are in a similar position. Orthodox Halakhah sometimes make it impossible for a woman to be legally divorced. Thus the Rabbinic Court system is depriving a significant number of Israelis of their fundamental rights of religious belief, conscience and marriage and thereby impairs their very sense of identity.

Family law matters for Palestinian-Israelis (20.7% of the total population) are similarly governed by the religious courts of their communities. The Shari’a Courts, which exercise jurisdiction over personal status matters of Israeli Muslims (roughly 80% of the Palestinian-Israelis), also have exclusive jurisdiction over marriage and divorce and concurrent jurisdiction over other matters of personal status. Similarly, Christian citizens of Israel (about 10% of the Arab population) and the Druze [*319] (about 7% of the Arab population) are subject to the jurisdiction of religious courts. Israeli law has sought to restrict the religious laws of these communities when it was felt that they obviously interfered with human rights; there are State law restrictions on bigamy, underage marriage, and unilateral divorce against a wife’s will (talaq). But there is a deep distrust among Palestinian-Israelis of Jewish dominated State institutions, an inaccessibility of Hebrew-run courts to the Arabic speaking population, and the reluctance of the Israeli state to interfere in these communities merely to uphold its own laws on personal status (as opposed to matters of national security). Consequently little protection is afforded Palestinian-Israeli women when they seek to exercise fundamental rights related to marriage. For Palestinians, as for all Israelis, religious affiliation is considered not as a matter of personal conviction but as a matter of public policy.

SEEKING SECURITY: PRE-EMPTING THE COMMISSION OF CRIMINAL HARMS

by G.R. Sullivan and Ian Dennis (eds). Oxford: Hart Publishing, 2012. 370pp. Hardcover $142. ISBN: 978-1849461665.

Reviewed by Francesca Laguardia, Department of Justice Studies, Montclair State University. Email: laguardiaf[at] montclair.edu.

pp.313-317

In SEEKING SECURITY, G.R. Sullivan and Ian Dennis bring together a collection of essays on the debates surrounding the increasingly preventive practices of criminal law in the West. The book includes essays by many of the most prominent authors in this newly emerging body of literature, which is only beginning to receive the attention it deserves from legal scholars, political scientists, and criminologists.

The volume is primarily philosophical, exploring the tension between liberal democratic societies and the concept of preventive criminal law enforcement. Developments such as the criminalization of preparatory actions and quasi-criminal civil detention orders are primary examples of the preventive turn, and each is discussed by multiple authors in the volume. While several preventive measures are addressed by only one author, including increasing surveillance, the creation of obligations to disclose information, the use of force in self-defense and the risks preventive measures pose to innocent persons, those essays addressing similar issues are collected in close proximity to each other. These include four essays addressing prophylactic crimes, followed by two on civil detention, and three on post-conviction detention for “dangerousness.” Reflecting the fact that the majority of scholarly attention paid to this issue has been found in the United Kingdom, the editors and authors of this volume unabashedly limit their descriptions and analyses of these developments to those countries (generally without country-specific discussion), with some few references to comparable developments in the rest of the world.

The introduction by Sullivan and Dennis provides the context for the chapters to follow. As they assert, there is a general assumption in liberal democratic states that coercive measures should be a last resort. Individuals’ autonomy should be held at the highest premium, and therefore punishment should follow, rather than preempt, criminal activity. Yet current trends in criminalization clearly contradict these norms. Retributivist principles have been jettisoned in favor of prevention of harm. These new criminal and quasi-criminal interventions substantially interfere with the presumption of innocence, imposing on citizens’ autonomy and self-determination.

The thirteen essays that follow take up this contradiction. Rather than presenting a broader argument regarding preventive criminal justice, the book’s contributors offer varying perspectives on the extent to which the new preventive focus of criminal law should be altered or controlled. Each discusses an example in current law, and the [*314] morality of employing the coercive power of the state in such a manner. Many offer policy recommendations for limiting the breadth of the state’s preemptive impositions.