CYBERSECURITY: SHARED RISKS, SHARED RESPONSIBILITIES

by Peter M. Shane and Jeffrey Hunker (eds.). Durham, North Carolina: Carolina Academic Press, 2013, 330pp. Paper $43.00. ISBN: 978-1-61163-159-3

Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University. Email: d.w.jackson [at] tcu.edu

pp.173-175

This is an important book; however, a non-specialist reader like myself may only be capable of comprehending the broad perspectives and implications for the policy issues that are presented.

Peter Shane is a law professor who has written about communication problems, especially concerning their implications for democracy, and Jeffrey Hunker is a computer scientist who was responsible for the development of the first U.S. national strategy for cybersecurity during the Clinton Administration. They have done excellent work in bringing together these contributions, grouped into three parts: I. Private and Public roles in Cybersecurity, Chapters 1-4; II. Cybersecurity and Conflict Response, Chapters 5-8; and III. The Politics of Cyber Decision Making, Chapers 9-11.

Altogether, the book consists of eleven chapters written by thirteen contributors who include a senior attorney and a head of global security strategy, both with Microsoft; the Director of the Cyber Statecraft Initiative of the Atlantic Council; two senior researchers and scientists with RAND Corporation; the chief computer scientist with the National Research Council; a former senior officer for Global Public Policy with Visa, Inc; the Director of the Project on Freedom, Security and Technology at the non-profit Center for Democracy and Technology; two consultants, one for the DOD and the other for Homeland Security; and the head of Plans and Policy at the United States Cyber Command. It is a powerful set of contributors.

Readers should be interested in this book due to the concern that many of our public laws and legal institutions are under stress because they have not kept pace with technological developments. We need to adapt our laws and policies to keep up with rapidly evolving technology, while preserving the fundamental principles of our Bill of Rights, especially the right of privacy. The legal regime also needs to be able to handle have effective and coordinated policies to address issues of commerce and transnational governance. The test for the reader of this book will be whether sufficient information can be gleaned from it to frame our understanding of the difficult adjustments in policy that must be resolved. It is problematic whether the issues reflected in this book can be translated into words and issues that can be fully understood, either by our political parties or by our citizenry.

The issues raised by recent disclosures of the bulk metadata program of the National Security Agency relative to the interests of privacy offer one recent example of the problems we confront. The structure of the United States Cyber [*174] Command at the N.S.A. is presented by Mark Young (of that Command) in Chapter 5 of Part II. A good description of the problem of timeliness may be found in Chapter 9, in which Paul Rosenzweig (formerly of the Department of Homeland Security) points out that the, “pace of events in cyber space moves so quickly that policy cannot keep up.” He calls this the problem of “The Policy ‘Ford Sedan’” (p.234): “In a world in which notice and comment rulemaking takes eighteen to twenty-four months to complete – during which time the average processing speed of computer chips will have doubled – our system for making policy is ill-suited to the task.” Rosenzweig attributes an important extension of this “Ford Sedan” analogy to Professor Harvey Rishikof, Chair of the American Bar Association Standing Committee on Law and National Security, who charged the government with using a “Ford sedan” policy-making system when trying to cope with a cyberspace “Porsche” system (p.238).

INFERNO: AN ANATOMY OF AMERICAN PUNISHMENT

by Robert A. Ferguson. Cambridge: Harvard University Press, 2014. 337pp. Cloth $29.95. ISBN: 9780674728684.

Reviewed by Michael Cholbi, Department of Philosophy, California State Polytechnic University, Pomona. Email: mjcholbi [at] csupomona.edu

pp.169-172

In the United States, conservatives increasingly insist that American policy (foreign and domestic) should reflect “American exceptionalism”: the belief that the U.S. possesses a heritage and set of virtues that distinguishes it from all other nations, and gives it a special world mission. Skepticism about this political project can take two forms: Either the U.S. is simply not exceptional; or the U.S is exceptional, but viciously so.

Sadly, the American regime of punishment provides potent evidence for the latter. As has been well documented, the U.S. is unsurpassed both in the scope of who it punishes and the severity with which it punishes. Nearly 2.5 million Americans are imprisoned, about 1% of the adult population. A growing percentage of these are non-violent drug offenders. The U.S. stands alone within its Western cohort in retaining the death penalty, and thanks to mandatory minimums and other mechanisms that limit discretion in sentencing, incarcerates individuals for longer periods of time than does its peer nations. Vocational training and other programs to reintegrate offenders back into society are poorly funded, and offenders are politically disenfranchised, reflecting an apparent acceptance that the pains and deprivations of punishment should extend well beyond one’s official sentence. Prison conditions in the U.S. are often deplorable, unhygienic and ridden with gang-driven violence and rape. American courts, meanwhile, have adopted standards for responding to prisoner grievances that effectively make it impossible to curtail penal abuse, while giving prison officials nearly unfettered discretion to discipline prisoners. American penal practices seem dominated by a “let them rot” mentality utterly indifferent to the fate of prisoners. It is safe to say that American punishment is exceptional, but not thanks to its effectiveness or decency. Rather, supermax, solitary, and ‘three strikes’ are its gruesome trademarks. And all of this is astonishingly expensive — on the order of $80-100 billion yearly.

Robert A. Ferguson’s INFERNO: AN ANATOMY OF AMERICAN PUNISHMENT is hardly the first to document and denounce this severity. The same horrors have been amply catalogued by Michael Tonry, Todd Clear, William Stuntz, James Q. Wilson, and Michelle Alexander. But Ferguson aims to identify the factors that explain this severity. How, he wonders, did America come to embrace this penal inferno? Only by stitching together the disparate elements that account for the current American penal regime, he proposes, can we begin to see how that regime might be undone. [*170]

I will turn to Ferguson’s answers to these questions momentarily. INFERNO is addressed to a lay audience, but I note two areas where scholars are likely to find this work frustrating. First, Ferguson’s scholarship is too often careless. He claims that Rawls made no contribution to philosophical theorizing about punishment, apparently unaware of “Two concepts of rules” (pp.58-59). Additionally, Ferguson rightly recognizes Kant as an important source of retributivist thinking (pp.37-38), but does not credit Kant as one of the theorists of dignity, a notion often invoked to constrain retributive impulses. Ferguson often treats positivism as if it precluded moral criticism of law and legal institutions, rather than simply denying that law must adhere to some standard of morality in order to be law in the first place (pp.51-53). Such statements mar a work with such high scholarly aspirations.

COMPANY MAN: THIRTY YEARS OF CONTROVERSY AND CRISIS IN THE CIA

by John Rizzo. New York, NY: Scribner, 2014. 336pp. Hard Cover $28.00. ISBN: 9781451673937.

Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (Missouri). Tobias.Gibson [at] westminster-mo.edu.

pp.163-168

In COMPANY MAN, John Rizzo offers insight and details about his legal career at the Central Intelligence Agency. This view affords the reader an incredible opportunity to (partially) pull the curtain back and look into the legal underpinings of the CIA’s work. Rizzo, as a veteran lawyer with more than three decades experience within the CIA, and having experience in three different “law offices” within CIA, serves as an excellent tour guide.

Rizzo’s career at CIA begain in the wake of the Nixon adminstration; in 1975 and 1976, the Senate Church Committee investigated alleged abuses at CIA. As a result of the Committee’s findings, several new attorneys were ushered in to Langley; Rizzo was among the first new hires. Rizzo’s career also directly impacted, and was impacted by other controversial epochs at CIA and involving the intelligence community more broadly. Rizzo was largely responsible for the clearing much of the evidence presented during the Iran-Contra hearings. Likewise, he served as the senior career attorney, and often as acting General Counsel-CIA (the lead attorney at the Agency) during times of tremendous cotroversy and upheaval. He was the legal architect of CIA’s detention and interrogation programs in the wake of 9/11. It was Rizzo who first reached out to the Department of Justice, in particular the Office of Legal Counsel, for legal support for “enhanced interrogation techniques.” The resulting OLC memoranda, the John Yoo-authored and Jay Bybee-signed “torture memos” (collected in THE TORTURE PAPERS (2005)) are likely familiar to many readers of the the LPBR. President George Bush nominated Rizzo to serve as General Counsel, the first time a career attorney had ever been so nominated –only to have the nomination derailed. Rizzo’s nomination failed due to his connection to the torture memos; once made public, the OLC rescinded legal support, and there was heated debate between the executive and legislative branches, and perhaps most importantly, in the “court of public opinion.” In addition to specific techniques of interrogation, Rizzo and other adminstration lawyers illustrate a common question about the role of government attorneys: help the client find a way to do what they want to do, or counsel clients about the limits of the law. While he stayed on in the immediate aftermath of the failed nomination, and administration change, Rizzo’s career at CIA would clearly never be the same. Rizzo left CIA in the early Obama adminstration.

Very obviously, due to the length of his tenure and the heights to which he rose, Rizzo’s view from within the CIA and its legal offices and proceedings, are worth the time spent reading this book. [*164]

Despite his time at CIA, there are some very necessary caveats on style and substance regarding this book. First, it is essentially written from Rizzo’s memory, as many of the details in the book are based off formal and informal conversations or regard documents whose exact contents are not necessarily declassified. It is also written from Rizzo’s perspective, which means that prior reviewers have taken him to task for the lack of a wider view, or simplicity of self-refection (Kaplan; Altschuler; Coll). Third, as with all Agency biographies, the book has been subject to the vigorous content oversight. So, while the book is illuminating on many subjects, there are moments where the reader is left to wonder what was left unsaid, or perhaps was said but did not meet approval from the Agency review. Finally, while much of the discussion is based around very public sources, such as President George W. Bush’s memoir or Rizzo’s own testimony in his public nomination Senate hearing regarding his General Counsel nomination, much of the information is left without citation or collaboration. This is both a strength and weakness of the book. On the one hand, as a scholar, evidence matters to me. On the other hand, this book illuminates meetings that previously one was unaware of, and in which Rizzo was one of two or three participants. While I cannot corroborate much of what is discussed with the book, the mere fact that it is now in the public record makes this book an exceptionally valuable resource. What this book does well, among other things, is explain the inner workings of the processes of the most controversial CIA programs of the past decade.

UNION AND STATES’ RIGHTS: A HISTORY AND INTERPRETATION OF INTERPOSITION, NULLIFICATION, AND SECESSION 150 YEARS AFTER FORT SUMTER

by Neil H. Cogan (ed.). Akron, OH: University of Akron Press, 2014. 299pp. Paperback. $24.95. ISBN: 978-1-937378-13-4.

Reviewed by Elizabeth Beaumont, Department of Political Science, University of Minnesota. Email: beaumont[at]umn.edu

pp.149-162

Until recently, it was easy to assume that notions of interposition, nullification, and secession were all but dead in American politics. While the rhetoric and deployments of states’ rights remain powerful forces, these particular permutations seemed to have been largely buried by the weight of the secession crisis which launched the Civil War. This fine volume illuminates the complex roles of these concepts in the framing and development of American constitutionalism and, by doing so, allow us to more carefully assess their return.

As editor Neil Cogan and several authors emphasize, to the extent that these constitutional concepts were ever actually dead, they have risen from the ashes. In recent years, some popular groups and elected officials have begun arguing that some or all of these methods of opposing federal law – and even withdrawing from federal Union – are legitimate. Most famously, in 2009, Texas’s governor, Rick Perry, suggested that the state was so distressed by national economic policies that it might consider secession. While few states’ rights arguments go this far, there has been a wave of moves for some version of interposition or nullification (claims of states’ rights to intervene against or to void federal legislation states find problematic or unconstitutional, respectively). Groups affiliated with the modern Tea Party helped revive these concepts, especially by urging state legislatures to nullify the federal Patient Protection and Affordable Care Act or “Obamacare.” But interposition and nullification are not only tools for political conservatives: they can also be seen as the implicit underpinnings of state referendums to legalize medical or recreational marijuana.

As these examples suggest, the issues contemplated in this volume are alive in the present, and they have the potential to become increasingly important to American politics, perhaps even fueling a radical strain of the New Federalism launched in the Nixon and Reagan eras (Conlan 1998). Moreover, despite the somewhat narrow-sounding title, the questions raised by this volume also go to the core of American constitutionalism: What is the relation between and among citizens, states, and the Union? How should we understand principles and structures of federalism and popular sovereignty? Who possesses authority to interpret the Constitution and where are the lines between interpretive disagreement, legitimate opposition, and lawless rebellion?
This volume provides a range of [*150] perspectives on federalism and states’ rights, although most of the contributors do not engage in explicit consideration of contemporary states’ rights debates. Rather, as its title suggests, much of the focus is on the major states’ rights crises in the antebellum and Civil War eras. Many authors do, however, provide historical evidence, analytical frameworks, and reasoned arguments that can inform our judgments about past and present arguments regarding the extent to which individual states should be able to contest, avoid, void,– or even exit from – federal law.

Madisonian Perspectives

Not surprisingly, the book’s timeline begins long before Fort Sumter. Chapters by Jack Rakove and Robert Natelson explore federalism in relation to James Madison’s views on constitutional framing and the first major post-ratification crises involving states’ rights. Madison is an obvious touchstone for any consideration of states’ rights. Rakove and Natelson review his leading role in shaping the initial design of the U.S. Constitution’s novel form of federalism, explaining and advocating this power-sharing system during the ratification debates, his authorship of the 1798 Virginia Resolutions in response to the Alien and Sedition Acts (which joined the Jeffersonian Kentucky Resolutions), and his concern over the nullification crisis of the 1830s.

CLIMBING MOUNT LAUREL: THE STRUGGLE FOR AFFORDABLE HOUSING AND SOCIAL MOBILITY IN AN AMERICAN SUBURB

by Douglas S. Massey, Len Albright, Rebecca Casciano, Elizabeth Derickson, and David N. Kinsey. Princeton: Princeton University Press, 2013. 288pp. Hardback. $35.00. ISBN: 978-0-691-15729-0.

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

pp.145-148

Four recent books (all published in 2013) address different dimensions of the juxtaposition of race, poverty, and residential life. Perhaps surprisingly, only one of these addresses the urban core: Patrick Sharkey investigates the multigenerational nature of urban neighborhoods and its negative consequences for African Americans. He contends that changes must address this phenomenon and offers several suggestions to do so. The other books focus more on the suburbs. Elizabeth Kneebone and Alan Berube focus on suburban poverty, which they assert to be increasing due to a struggling economy, immigration, population dynamics, and shifts in affordable housing and jobs. In order to reverse that trend, they propose modernizing services and improving resources. Leigh Gallagher traces the flight from suburbs caused by decline of the nuclear family, the appeal of cities, and the means to travel there. She provides evidence that population growth has occurred in certain suburbs which have adopted environmentally-conscious policies and which have walkways for residents. The book under review asks, Can a housing development for select low-and-moderate-income minority residents be successful in an upscale suburban setting?

That question is answered emphatically in the affirmative in this monitoring report based on a long-term study of the Ethel Lawrence Homes (ELH) project in Mount Laurel, New Jersey. Princeton University sociology professor Douglas Massey and Princeton public and international affairs lecturer David Kinsey, together with Princeton sociology Ph.D. candidate Elizabeth Derickson, are joined by Northeastern University sociology professor Len Albright and CEO Rebecca Casciano as participants in research that began in 2009. The team probes the ELH’s history and assesses its impact by employing legal analysis, social science techniques, and policy advocacy. The study is funded by public (Department of Housing and Urban Development) and private source (MacArthur Foundation) grants. The success required sustained effort by activist groups, two state Supreme Court victories, and subsequent legislation.

Chapter 1 begins by offering a remedial course on real estate and the importance of its location within a community. The authors assert that because the most important barriers to residential mobility in the United States have been racial in nature, the “end result was a universally [*146] high degree of urban racial segregation in mid-twentieth century America that only began to abate in the wake of landmark civil rights legislation passed in the 1960s and 1970s” (p.2). It was in that kind of political and cultural environment that Ethel Lawrence – an African American resident of Mount Laurel – and her colleagues formed the Springville Community Action Committee (SCAC) of South Jersey in 1967 in order to bring affordable housing to the Mount Laurel area. Launched in 1969, the SCAC housing project ran into immediate opposition from local government and residents. Following an NAACP-led lawsuit in 1971, the New Jersey Supreme Court issued landmark rulings in 1975 and 1983, referred to as MOUNT LAUREL I and II, – which created and expanded the Mount Laurel Doctrine, an obligation of local communities to eliminate exclusionary zoning practices and provide their fair share of affordable housing resources. Still, it took another fourteen years for the Mount Laurel Planning Board to approve the SCAC housing project, renamed after Ethel Lawrence following her death in 1994. The Ethel Lawrence Homes project completed its first stage of construction in 2000 and a second phase in 2004. For Law and Politics Book Review readers, then, most of the book is concerned with policy implementation and evaluation, after the legal victory has been secured.

Chapter 2 covers the aftermath of the New Jersey Supreme Court’s MOUNT LAUREL decisions. After the 1983 ruling, the New Jersey legislature passed the Fair Housing Act in 1985. That law withstood several challenges over its constitutionality. The Mount Laurel Doctrine has been a political football in New Jersey since its establishment. For instance, present governor Chris Christie unsuccessfully sought to eliminate the New Jersey Council on Affordable Housing, a state agency created concurrent with the 1985 law.

TAKE UP YOUR PEN: UNILATERAL PRESIDENTIAL DIRECTIVES IN AMERICAN POLITICS

by Graham Dodds. Philadelphia: University of Pennsylvania Press, 2013. 320pp. Cloth. $69.95. ISBN 978-0-8122-4511-0

Reviewed by Mariah Zeisberg, University of Michigan.

pp.141-144

A new volume in the University of Pennsylvania Press’ DEMOCRACY, CITIZENSHIP, AND CONSTITUTIONALISM series, Graham Dodd’s book TAKE UP YOUR PEN offers an engaging discussion of governance through unilateral executive orders. The book is organized chronologically and is bookended with discussions about how this research could transform scholarly understandings of the presidency, American democracy, and American political development. The book states that its goal is to offer, in Stephen Skowronek’s words, “a politically informed and analytically productive understanding of how we got from where we started to where we are” (p.53, citing Skowronek, p.744) and it largely meets that goal.

The book portrays unilateral presidential directives as a worrisome and anti-democratic development associated with a major rise in unchecked presidential power – a development that it seeks to “document and explain” (p.3). Its constitutional explanation is straightforward: the Constitution’s textual ambiguity, and the inherent ambiguities of executive power (for example, Article II’s “take care clause”) do much to explain how the text creates opportunities for presidents to govern through executive orders. While Dodds discusses some early, restrictive judicial cases, he also demonstrates that the Supreme Court has delivered a mixed set of cases sometimes upholding, sometimes not, executive orders “subject to certain constraints,” and in modern times generally accepting executive directives as lawlike – albeit a source of law lower than statute, the Constitution, or treaties (p.67). Ambiguous constitutional text and ambiguous judicial precedent mean that changes in the use of this important governance power should be explained politically, not legally.

In service of this political explanation, the book provides a detailed investigation into the many uses of directives by presidents through history. The chapters are arranged chronologically. The book looks at the frequency of unilateral directives in each administration as well as common themes in the use of directives in administrations from George Washington to Barack Obama. Through these discussions readers are given a peek into some of the most momentous controversies of American history as well as some of the most arcane ones. What makes the work so readable is the fascinating and even bewildering variety of cases that Dodds explores. Despite the author’s theoretic anxiety, it turns out that not all uses of unilateral directives have been especially troubling: presidents have used them for mundane matters like administering pensions, managing employment in the executive branch, and requiring communications to [*142] be sent to the appropriate department. But presidents have also used unilateral directives for federal land management, sometimes with and sometimes against Congress’ will; to manage domestic unrest and recapture fugitive slaves (p.106); to pardon rebels in “the Whisky Rebellion” (p.107) and to offer amnesties in the former Confederate states (p.110); to govern Mormons (pp.113-115); to drop an atomic bomb on Japan (p.187); to introduce affirmative action for the executive branch (p.199); and to construct entirely new administrative agencies (p.203). I appreciated the book’s discussion, too, of some controversial non-uses of the unilateral directive. President Wilson refused to issue an order to desegregate executive departments (p.156). In October 1961, Martin Luther King, Jr. asked John F. Kennedy to use an executive order to outlaw racial segregation, offering a legal memo called the “Second Emancipation Proclamation” as an example, but Kennedy refused (p.200).

Dodds shows that, while every president has issued unilateral directives, their frequency and importance ticks up markedly with Theodore Roosevelt. Theodore Roosevelt “issued almost as many executive orders in his seven and one-half years in office as all of his predecessors combined” (p.87) – to the extent that Dodds claims Theodore Roosevelt as the true first modern president, especially if, as Terry Moe and William Howell suggest, unilateral presidential action “virtually defines what is distinctively modern about the modern presidency” (p.230). Because of Roosevelt’s association with this transformation the book gives him an entire chapter, discussing his use of directives for strikes and labor conflicts; pensions; race relations and the postal service; Asian immigration; coin design; for investigating and punishing troops; to create forest reserves, sometimes against Congress’ opposition; to create national monuments; and, most troubling, to use the Secret Service to keep legislators under surveillance. Dodds relays a very funny story of Roosevelt seeking to achieve simplified spelling – “check” for “cheque,” “wo” for “woe” – in the Government Printing Office through executive order. Alas, “[r]ebuked by the press, the judiciary, and the legislature, TR realized that he had lost, and he formally rescinded his executive order” (p.135). Throughout, the chapter portrays Roosevelt as an innovator in terms of the scope, topics addressed, magnitude, and frequency of use of the unilateral directive.

THE POLITICS OF PRECAUTION: REGULATING HEALTH, SAFETY, AND ENVIRONMENTAL RISKS IN EUROPE AND THE UNITED STATES

by David Vogel. Princeton and Oxford: Princeton University Press, 2012. 336pp. Cloth $39.50. ISBN: 9780691124162.

Reviewed by Herschel Nachlis, Department of Politics, Princeton University. Email: hnachlis [at] princeton.edu.

pp.135-140

In February of this year, an American food blogger posted a petition urging the Subway sandwich chain to “stop using dangerous chemicals in your bread.” The appeal cited Subway’s practice of conditioning its dough in the United States with azodicarbonamide, a compound banned in Europe as a food additive and commonly used in yoga mats and shoe rubber to increase elasticity. Within a few days, over 60,000 people had signed the petition. Later that week, Subway announced that it would stop using the chemical in its US stores.

As Subway emphasized when announcing the change, “Azodicarbonamide is fully approved for use in bread by the United States Food and Drug Administration (FDA).” The FDA deems the chemical “a safe food additive when used for the purposes and at the levels specified in the FDA regulations,” because the existing scientific data on azodicarbonamide show minimal harmful carcinogenic and respiratory effects in small quantities. Yet as the original petition and most media reports noted, the European Union, based on the same data, made the opposite policy choice. Unlike the FDA, EU regulators in 2004 found that in light of “the remaining scientific uncertainties it is appropriate, in order to achieve the high level of health protection chosen in the Community, to suspend the use of azodicarbonamide.”

In THE POLITICS OF PRECAUTION, a masterful addition to UC Berkeley Business and Political Science Professor David Vogel’s nearly four decades of scholarship on regulation, business, and politics, Vogel explains how, why, and to what effect a broad divergence in US and EU regulatory practices emerged, a divergence that can lead to contrasting regulatory decisions, like the choices governing azodicarbonamide, in the face of similar risks and evidence. Vogel examines US and EU regulation of significant health, safety, and environmental risks caused by business from 1960-2010, while focusing attention on the differences in US and EU regulatory policy since around 1990. He advances an account in which, from the 1960s through the late 1980s, important health, safety, and environmental risks were more likely to be regulated strictly by the United States, whereas since about 1990 the EU has taken the lead and the US now lags behind. In this account, the US has grown increasingly committed to a regulatory regime in which safety is presumed unless there exists clear evidence of harm, uncertainty is not a legitimate basis for regulation, and [*136] regulators seek to avoid false positives or Type I errors (overregulation). Meanwhile, the EU has surpassed the US in its regulatory stringency by basing its decisions on the “precautionary principle,” a guideline that compels regulation in the face of scientific uncertainty and directs regulators to avoid false negatives or Type II errors (underregulation). Three factors are offered to account for these shifts: public opinion and risk perceptions, the preferences of influential policymakers, and risk assessment criteria. Offering a range of evidence and a crisp argument, Vogel’s volume is an important and provocative resource for scholars, students, and practitioners interested in regulatory policy, postwar institutional development in the US and EU, and the political factors that drive the complex and far-reaching decisions about political constraints on business practices.

Chapters about four sets of cases – food safety and agriculture, air pollution, chemicals and hazardous substances, and consumer safety – demonstrate the argument. These sections are efficient and persuasive, and Vogel’s “big picture” (p.3) narrative remains compelling across the cases studied. Cases that diverge from the main argument – including stringent regulation of health-related automotive pollutants in the US, and policy convergence on pharmaceutical regulation – are readily acknowledged, as is the substantial revision that THE POLITICS OF PRECAUTION makes to Vogel’s earlier argument that the US and Great Britain exemplify different and possibly invariant “national styles of regulation” (Vogel 1986). The introductory materials carefully walk through and reject a range of plausible alternative explanations for the documented transatlantic divergence in regulatory practices. Points of potential interest outside of the book’s central arguments are also highlighted, including the impact of early statutory text on later decision-making (particularly Chapter 3’s discussion of the Delaney Clause and carcinogens), the EU’s emergent global regulatory leadership, and the role that US states (particularly California) play in filling the US federal regulatory vacuum.

The book’s central puzzle, though, remains the “discontinuity in health, safety, and environmental risk regulations that took place on both sides of the Atlantic after around 1990” (p.219), and especially US regulatory weakness. Before 1990, for example, Republican Presidents Nixon and Reagan worked with their Democratic counterparts in Congress to pass the 1970 Clean Air Act Amendments and ratify the 1987 Montreal Protocol, and Presidential nominees from both parties competed over their respective environmental credentials (pp.103-6). Yet after 1990, as the EU consistently adopted new regulations that were stronger than their US counterparts from the 60s, 70s, and 80s, American policymakers failed to update and strengthen regulations (p.231). By documenting such significant “drift” in regulatory policy, Vogel supplements other important accounts of drift that tend to focus on social policy (Hacker 2004; Streeck and Thelen 2005).

EXPLORING THE MANDATORY LIFE SENTENCE FOR MURDER

by Barry Mitchell and Julian V. Roberts. Oxford, UK and Portland, Oregon: Hart Publishing. 2012. 196pp. Paperback. $54.72. ISBN: 978-1-84946-228-0.

Reviewed by Randolph N. Jonakait, New York Law School. Email: rjonakait [at] nyls.edu

pp.132-134

Barry Mitchell, Professor of Criminal Law and Criminal Justice at Coventry University, and Julian v. Roberts, Professor of Criminology at the University of Oxford, urge the abolition of the mandatory life sentence for murder in England and Wales. Their book, EXPLORING THE MANDATORY LIFE SENTENCE FOR MURDER, contends that murderers have such varying culpability that more sentencing options should be available, including fixed terms of incarceration.

The core of this clearly-written, short (142 pages of text with 20 pages of appendices) book is new empirical work, the results of a public opinion survey in England and Wales about murder sentences. Mitchell and Roberts, however, traverse preparatory ground. They give a brief history of the punishment for an English murder.

Until a half century ago, the automatic sentence was death by hanging. Reforms in 1957 retained, but narrowed, the death penalty. Even so, according to the authors, the death penalty was increasingly seen as capricious. In 1965, the death penalty was abolished, and mandatory life sentences became required for all murder convictions.

Mitchell and Roberts note that the required sentence does not operate the same for all. Only a small percentage of lifers actually stay in prison until they die. Most are incarcerated for a considerable period and then released under supervision for the rest of their lives. The release date depends first on the minimum sentence imposed by the trial judge, which is set by reference to the seriousness of the offense. Shortly before the end of the minimum term, the Parole Board, with public protection as its chief concern, determines whether a prisoner should actually be released. Any release is supervised, but that supervision may be canceled after four years. Whether under supervision or not, a released murderer can be recalled to prison either for re-offending or for a violation of the terms of release.

Even though convicted murderers do not all serve the same period of incarceration, because all can be recalled to prison for life, the authors see all life sentences as fundamentally the same. They contend that these sentences do not deter others from murder and undermine rehabilitation of those convicted of murder. In addition, Mitchell and Roberts contend that the mandatory life sentence violates a core principle of common-law sentencing, that of proportionality.