THE MYTH OF MOB RULE: VIOLENT CRIME AND DEMOCRATIC POLITICS

Vol. 27 No. 1 (January 2017) pp. 18-21

THE MYTH OF MOB RULE: VIOLENT CRIME AND DEMOCRATIC POLITICS, by Lisa L. Miller. New York: Oxford University Press, 2016. 272pp. Cloth $35. ISBN: 978-0190228705.

Reviewed by Charles R. Epp, School of Public Affairs and Administration, University of Kansas. Email: chuckepp@ku.edu.

I vividly recall walking home from my Washington, D.C. internship in 1986 and seeing blood on a sidewalk where a young man had just been shot in a drug dispute. That year 197 people were murdered in the city, up more than thirty percent from 1985. From there the numbers climbed dramatically, eventually reaching a peak of 482 in 1991. The city’s newspapers were filled with stories of shootings. This was a drug war, they reported. The newspapers were also filled with stories about the Reagan Administration’s so-called war on drugs. Even as my young colleagues and I scoffed at the administration’s propaganda, as we thought of it, we walked the streets with an eye over our shoulders.

So I have never been fully satisfied with the argument favored by some scholars (see, e.g., Reinarman and Levine 1989) that the media frenzy over drugs and drug-related deaths in the 1980s was just hype. The Reagan Administration’s punitive rhetoric and response was hyped, but there was also a bedrock reality to the misery—the poverty, the street-corner drug sales, the killings—in many of America’s urban areas. But until now I have not been able to fully square how we might see a basic truth in public fear of crime without also acceding to the democratic legitimacy of what has so often come with it: a hyper-punitive response. Seeing how many scholars refer in passing to exaggerated fear of crime, I suspect that many of my scholarly colleagues are in the same boat.

Lisa L. Miller’s profoundly important THE MYTH OF MOB RULE offers a truly original solution to this dilemma. Drawing on extensive empirical research, Miller shows that media attention to violent crime and public fear of it are closely connected to actual trends in crime. Rarely is there a public frenzy over crime when there is no underlying problem. Miller also shows that this is true not only of the United States but also of many other advanced industrialized countries. Deploying a nicely designed comparative case study of the U.S., Britain and the Netherlands supplemented by data from twelve other countries, Miller argues that public safety is a democratic concern “of the first order” and that governments that are the most responsive to public concerns about crime are also the most likely to adopt policies to address it. The United States, she says, is unique not in the American public’s concern about crime (or media coverage of it) but in its truncated policy response to this concern, manifested mainly in policing and punishment. When European publics are vexed about crime, their governments adopt some punitive policies (e.g., more police, lengthier prison sentences) but generally as part of a wider array of social-welfare policies aimed at addressing poverty as a root cause of crime. In comparison, Miller argues, the United States, with its extraordinary levels of violent crime and incapacity to do much about it looks a lot like a “failed state.” Its problem is not too much popular control over government but too little.

CHOOSING STATE SUPREME COURT JUSTICES: MERIT SELECTION AND THE CONSEQUENCES OF INSTITUITONAL REFORM

Vol. 27 No. 1 (January 2017) pp. 14-17

CHOOSING STATE SUPREME COURT JUSTICES: MERIT SELECTION AND THE CONSEQUENCES OF INSTITUITONAL REFORM, by Greg Goelzhauser. Philadelphia: Temple University Press, 2016. 192pp. Cloth $84.50. ISBN: 978-1-4399-1339-0.

Reviewed by Melinda Gann Hall, Department of Political Science, Michigan State University. Email: hallme@msu.edu.

In this excellent new book, Greg Goelzhauser addresses a broad fundamental question related to political representation, judicial selection, court reform, and the politics of institutions: Does “merit selection” produce more qualified state supreme court justices or better diversify the bench relative to other methods of initial selection. In answering this intriguing perennial question, Goelzhauser examines over 1,500 state supreme court justices seated from 1960 through 2014 across all fifty states. The focus is on three primary indicators of judicial quality and diversity: professional experience, professional quality; and gender, race, and ethnicity.

The selection systems themselves are categorized as elite appointment plans (i.e., appointment plans lacking the commission review structure), partisan and nonpartisan elections (designated as “elections”), and merit selection. In his study, Goelzhauser departs from the traditional definition of merit selection as the Missouri Plan, or a commission-based gubernatorial appointment process with subsequent retention elections. Instead, Goelzhauser defines merit selection as any use of a commission-based nomination process, including the Missouri Plan and gubernatorial appointment without subsequent retention elections. Thus, in using these three categories of selection systems, Goelzhauser does not differentiate between types of contestable elections (partisan versus nonpartisan elections), consider variations in commission systems (including formal rules for the selection of commissioners, the partisan composition of the commissions, and gubernatorial discretion to reject lists of the nomination commissions), or examine differences in elite appointment systems (e.g., selection by the governor versus legislature). In the same vein, Goelzhauser does not consider retention constituencies (e.g., appointments for fixed terms versus appointments with lifetime tenure). Of course, this is both a limit and an asset, providing parsimony in modeling and the interpretation of substantive results.

One of the many strengths of this terrific project is Goelzhauser’s use of precise definitions for each key concept, multiple indicators, and a consistent format for modeling and reporting the statistical analyses, which make interpreting the primary results straightforward. Essentially Goelzhauser utilizes a fixed set of independent variables (including selection systems) and logistical regression to predict a variety of the justices’ traits, each separately. The full models are reported in the appendices while the principal results about the impact of selection systems on experience, quality, and diversity are shown in the chapters. Specifically, in the chapters Goelzhauser reports changes in predicted probabilities (and significance tests) associated with seating a justice with a particular trait between merit selection and appointment, merit selection and elections, and appointment and elections.

THE COURTS, THE BALLOT BOX, AND GAY RIGHTS: HOW OUR GOVERNING INSTITUTIONS SHAPE THE SAME-SEX MARRIAGE DEBATE

Vol. 27 No. 1 (January 2017) pp. 11-13

THE COURTS, THE BALLOT BOX, AND GAY RIGHTS: HOW OUR GOVERNING INSTITUTIONS SHAPE THE SAME-SEX MARRIAGE DEBATE, by Joseph Mello. Kansas: University Press of Kansas, 2016. Cloth: $34.95 ISBN: 978-0700622917.

Reviewed by Natalie P. Johnson, Department of Political Science and Geography, Francis Marion University. Email: njohnson@fmarion.edu

Joseph Mello presents a compelling account of the successes and failures of the movement for same-sex marriage in two different venues: the courts and through the people via ballot initiatives. The ultimate question that has plagued law and society scholars for years is whether it should be the courts or the people who ultimately decide what are fundamental rights and who should be given these fundamental rights. Conservatives often argue the courts usurp the powers of the people and democratic process by making these decisions, with there being a backlash to this usurpation of power (Rosenberg, 2006).

Mello explores the campaigns of both opponents and proponents in the fight for same-sex marriage and their relative victories and losses. What is important to remember, according to Mello, is that various institutional structures limit arguments that can be made. The crux of Mello’s argument is that conservative groups opposing same-sex marriage were often successful in ballot initiatives because they could frame the message in a certain way. However, these arguments did not translate into success in the courtroom. The opposite was true for proponents of same-sex marriage. The key difference between ballot initiatives and the courtroom is that the courtroom welcomes, and expects, long drawn out arguments whereas measures put to the public must have a short and eye-catching message. The rights based claims are not as easily defended in the courtroom but make excellent tag lines for ballot measures.

Chapter One provides an introduction to the work and the overall argument. The main argument is that institutional venues shape the arguments that are made. Thus, by looking at the insider (court) and outsider (ballot initiative) strategies, Mello is able to discern which arguments resonated in which venues. Additionally, by looking at “conservative opposition to same-sex marriage” (p. 3) the author is able parse out the successes and failures of the same-sex marriage movement. Two fundamental questions drive the study, which are: Why did conservative opponents of same-sex marriage enjoy such an advantage when debating this issue in the popular arena of a ballot measure campaign? And why were they less successful at mobilizing the language of rights when arguing against it in more elite-centered environments?” (p. 3). What is particularly interesting and captivating about Mello’s account is the understanding that the same arguments conservative groups used in the public arena were the very arguments that resulted in their downfall in the courts and therefore expands sociolegal scholarship beyond the doors of the courtrooms. This phenomenon is explored in the substantive chapters on Maine and California.

THE FUTURE OF VIOLENCE—ROBOTS AND GERMS, HACKERS AND DRONES: CONFRONTING THE NEW AGE OF THREAT

Vol. 27 No. 1 (January 2017) pp. 7-10

THE FUTURE OF VIOLENCE—ROBOTS AND GERMS, HACKERS AND DRONES: CONFRONTING THE NEW AGE OF THREAT, by Benjamin Wittes and Gabriella Blum. 2016. Gloucestershire, UK: Amberley Press. Paper. ISBN: 978-1-4456-5593-2.

Reviewed by Mark Rush, Center for International Education. Washington and Lee University. Email: rushm@wlu.edu.

Wittes and Blum have written an important work that forces scholars to reconsider the scope and definition of privacy, individual rights and governmental powers in an era in which the expansion of technology and the scope of internet have radically altered these notions. Despite seemingly ancient visions of the internet as a place in which individuals would be free, potentially anonymous actors, the web has instead, become a much different place.

The book’s subtitle speaks to the breadth of its coverage. Essentially, technological and scientific advancements have now “democratized” access to weapons of mass hysteria if not mass destruction. While the immediate impact of a cyberattack may not seem to compare to that of a nuclear bomb, its real impact (in terms of the number of people it affects and the possible cost of responding to or defending against such an attack) does compare.

But, technology has had a truly democratizing impact as well. Echoing Thomas Friedman’s (2005) description of how the growth of technology, specifically democratized access to the global economy, Wittes and Blum describe what might be version 4.0 of Friedman’s analysis. Democratization of access to technology has a dark side. On the one hand, it brought the developing world (particularly India and China) onto the global economic stage. On the other, [*8] in the same way that the expansion and democratization of the world economy created a scenario for almost unstoppable, hysteria-driven runs on currencies in global markets, it also empowers individuals to threaten others (individually or collectively) with virtual anonymity if not impunity.

RIGHTS AFTER WRONGS: LOCAL KNOWLEDGE AND HUMAN RIGHTS IN ZIMBABWE

Vol. 27 No. 1 (January 2017) pp. 4-6

RIGHTS AFTER WRONGS: LOCAL KNOWLEDGE AND HUMAN RIGHTS IN ZIMBABWE by Shannon Morreira. Stanford: Stanford University Press, 2016. 216 pp. Paper $27.95. ISBN 97808044799089.

Reviewed by Donald W. Jackson, Emeritus Professor, Department of Political Science, Texas Christian University. Email: d.w.jackson@tcu.edu.

This book attempts to contrast local knowledge and law in Zimbabwe and South Africa with the supposed universal principles of international law. Traditional community understandings of law represent a reality that we should respect and attempt to understand. Yet, there are important issues in our own time concerning the rights of people to escape from the too often repressive conditions in their home countries. Still, it is necessary to consider as well the plight of those who are trying to find better life prospects in another place – as contrasted with those who are seeking to avoid political or social persecution in their home countries. These distinctions between political or social refugees, and those who simply are seeking a better life, are integral in this important book. We live in a world in which capital resources and commodities usually can move freely around the world through globalization, while people often cannot. Why should this be so? Are we destined to deal with different realities?

Are human rights indeed universal or are they merely the products of particular cultures? The allegedly universal principles of human rights, perhaps as best represented in the Universal Declaration of Human Rights of 1948, are often in conflict these days with contrarian points of view from different cultural and religious perspectives. Contrarians may well ask for solid conceptual foundations of universality – these possible cultural conflicts require that we must re-examine carefully the support for universalism. Are there indeed universal human rights that ought to be enforceable throughout the world, regardless of local religious, social or political preferences? The answers to such questions are not easy.

NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE


Vol. 27 No. 1 (January 2017) pp. 1-3

NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE, by R.H. Helmholz. Cambridge, Massachusetts: Harvard University Press, 2015. 260 pp. Cloth $45.00. ISBN 978-0-674-50458-5.

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

NATURAL LAW IN COURT presents a novel and surprisingly neglected approach to examining the natural law or the law of nature, the idea that there are fundamental, eternal principles of justice that are binding on us and that guide (or should guide) positive law. Typically, discussions of natural law tend to be highly theoretical and abstract, and it is a frequent criticism of the natural law theory that it provides us with nothing but a set of high-sounding ideals of little relevance to practice. Often the focus is on Aquinas’ famous principle that an “unjust law is no law at all,” with its implication that any positive law that fails to accord with natural law is null and void. Critics point out that this scenario is so rare and unlikely that therefore the very idea of natural law is discredited.

Helmholz instead gives us a careful, systematic historical and empirical approach to assessing natural law. Rather than engaging in the philosophical debate about what it could mean for there to be eternal, universal principles of justice, Helmholz asks a much more tractable question: what does history tell us about the influence and importance of natural law in the Western tradition. This analysis provides a means of testing a thesis: that the natural law has had an important influence on the history of Western legal thought. It thus addresses a specific and important aspect of the debate, the skeptics’ claim that, even if such a thing as natural law really existed, it has never been all that important in practice.

IDEAS WITH CONSEQUENCES: THE FEDERALIST SOCIETY AND THE CONSERVATIVE COUNTERREVOLUTION

Vol. 26 No. 8 (December 2016) pp. 160-164

IDEAS WITH CONSEQUENCES: THE FEDERALIST SOCIETY AND THE CONSERVATIVE COUNTERREVOLUTION, by Amanda Hollis-Brusky. Oxford University Press, 2015. 252pp. Hardback $29.95. ISBN: 978-0-19-938552-2.

Reviewed by Brandon L. Bartels, George Washington University. Email: bartels@gwu.edu.

Amanda Hollis-Brusky’s award-winning book sets out to explain how the Federalist Society (FS) has exhibited influence in key areas of the law ultimately decided by U.S. Supreme Court.1 To orient her inquiry, Hollis-Brusky develops a compelling conceptual and theoretical framework centering on what she calls “political epistemic networks” (PENs), of which the FS is an exemplar. Adapted from the “epistemic community” (EC) concept in international relations, a PEN is “an interconnected network of experts with policy-relevant knowledge who share certain beliefs and work to actively transmit and translate those beliefs into policy” (pp. 10-11). Network members share: (1) normative beliefs/principles; (2) causal beliefs regarding how to achieve those goals; (3) shared notions of validity (the “right” interpretation of contested texts); and (4) a unified policy vision. The corresponding elements for the FS specifically are: (1) “the State exists to preserve freedom;” (2) the separation of governmental powers is central to the Constitution for achieving this principle; (3) “originalism” is the only valid methodology for constitutional interpretation; and (4) implementing conservative and libertarian values into law.

The book draws an important distinction between ECs and PENs based on the nature of knowledge accumulation and transmission. ECs are scientifically-oriented; most claims about science are evidence-based and refutable (or falsifiable), meaning an EC is replaceable based on objective evidence. For PENs related to law, [c]laims to legal knowledge are non-refutable, politically contested,” and essentially subjectively oriented (p. 10). In addition, a PEN differs from a traditional interest group because it does not engage in direct lobbying as an organization per se. Yet it is more influential than a typical “audience,” from Baum’s (2006) perspective, that might exhibit more “psychological constraint” due to a judge or political actor being mindful of an audience when making decisions.

A PEN in general, and the FS in particular, is ultimately a powerful influence in law and/or politics because it lays down the intellectual capital for a variety of issues that individuals in positions of power draw on when those issues appear on their agenda. A PEN legitimizes ideas that were previously thought to be outside the mainstream by elucidating theoretical and doctrinal foundations for those positions. In addition, a PEN seeks to vet individuals to make sure they are true believers before they gain admission to the club. They seek to put those vetted network members into positions of power and influence in order to procure constitutional and policy change. The FS has been quite successful on these fronts, due to the reach of their network to law schools (students and professors), judgeships, clerkships, think tanks, and government. True to the book’s title, the FS is in the “ideas” business, developing and disseminating legal philosophies and doctrinal ideas with the hope that they will have the ultimate “consequence”—being adopted by the U.S. Supreme Court.

After the theoretical chapter, the core of the book’s argument and evidence centers on Parts I and II. Part I assesses the FS’s influence on preserving freedom via the individual right to bear arms (Chapter 2) and campaign finance (Chapter 3). Part II focuses on separation of governmental powers (primarily federalism) via key Commerce Clause cases (Chapter 4) and the Tenth Amendment (Chapter 5). Part III (Chapter 6) focuses on broad processes by which the FS has influenced the “conservative counterrevolution” on the Supreme Court. [*161]

As I read the introduction and Chapter 1, I was thinking that the book’s ultimate success would turn on an intricate demonstration of the process by which the FS’s ideas and intellectual foundation have infiltrated and filtered their way up to official ranks of power, including the Supreme Court. It’s the “how” that drives the scholarly contribution. In my opinion, the book mostly succeeds on that front, but I do have some ideas on how the book could have crystallized the story, which also provides feedback for the future direction of this research agenda. My comments below center on: (1) the nature of FS influence and how it is demonstrated; and (2) the validity of the phrase, “conservative counterrevolution.”2 On the whole, the book stimulated a great deal of thought, and I believe it will do the same in the intellectual community—both in political science and the legal academy.

CRAFTING COURTS IN NEW DEMOCRACIES: THE POLITICS OF SUBNATIONAL JUDICIAL REFORM IN BRAZIL AND MEXICO

Vol. 26 No. 8 (December 2016) pp. 157-159

CRAFTING COURTS IN NEW DEMOCRACIES: THE POLITICS OF SUBNATIONAL JUDICIAL REFORM IN BRAZIL AND MEXICO, by Matthew C. Ingram. New York: Cambridge University Press, 2016. 392pp. Hardback $110.00. ISBN: 9781107117327.

Reviewed by Lisa Hilbink, Department of Political Science, University of Minnesota. Email: hilbink@umn.edu.

Scholars of law and courts in the United States often take for granted the institutional integrity and independence of the judicial branch. Some focus on how to maintain judicial independence in the face of perceived or potential threats, and others fret about independent/unaccountable judges having too great a role in deciding fundamental policy issues, but the question of where strong and independent judicial institutions come from is mostly ignored or left to historians. For those who work on new (or renewed) democracies, by contrast, the question of how to construct (or reconstruct) stable, independent judiciaries is of fundamental concern, not just for scholars, but for citizens of those countries seeking to hold public and private actors accountable for legal violations. With Crafting Courts in New Democracies, Matthew Ingram offers an innovative and compelling contribution to this important line of research.

Drawing on both quantitative and qualitative evidence from the subnational (state) level in two major federal countries, Brazil and Mexico, Ingram argues that the key to effective judicial reform is the presence of leaders in both the political and judicial spheres that share “nonmaterial, principled, programmatic commitments about the proper role of courts in democratic societies” (p. 3). These ideational commitments may be primarily political or economic in nature; however, while neoliberal economic ideas have sometimes motivated judicial reform, Ingram finds that the most robust reforms are driven by actors with left-liberal commitments to expanding democratic citizenship. Moreover, he highlights the role of judges themselves in persuading sympathetic politicians to propose and follow through with court-enhancing policies.

In making this argument, Ingram directly challenges dominant theories of judicial empowerment, which, though varying in their specific causal logics, are united in viewing reforms for more independent and effective courts as a strategic response by politicians to the uncertainty produced by electoral competition. These rational-strategic accounts assume that, out of material self-interest, politicians facing electoral competition will pursue judicial reforms as a means either of retaining or attaining office, or of preserving their policy preferences should they lose office. Ingram contends that such theories do not reliably account for the timing and content of court strengthening reforms, and can neither explain their absence where electoral uncertainty abounds nor their presence where they entail costly behavior on the part of political leaders. Absent ideational motivations, Ingram argues, electoral incentives are insufficient to drive reform.

Ingram develops this argument in eight chapters. After providing an introduction to and overview of the research question and argument in Chapter 1, he devotes Chapter 2 to the theoretical framework and competing arguments on judicial reform in the literature. Chapter 3 explains and justified the methods used in the empirical analysis, and provides basic background information on the six state-level case studies (three Mexican, three Brazilian). Chapter 4 offers a time-series, cross-section analysis of judicial spending (the dependent variable) across thirty-two Mexican states from 1993 to 2009. Chapter 5 does the same for twenty-seven Brazilian states between 1985 and 2007. With some caveats, these two chapters taken together demonstrate that, in both countries, electoral competition has mixed effects, and state governments on the political [*158] left “exert the most meaningful positive influence on judicial empowerment” (p. 53). Chapters 6 and 7, on Mexico and Brazil respectively, supplement the quantitative analysis by identifying a “well-predicted” state in each country and selected two other states on a “most similar” small-N research design. Based on 50-60 elite interviews in each country, as well as archival analysis, Ingram provides qualitative evidence to support the argument that “principled-ideological factors shape reform” (p. 53) and that politicians and judges on the political left are those behind the most robust judicial improvements. In the final chapter, Ingram lays out some “boundary conditions” and “interactions” that affect which parties press for judicial reform after transition to democracy. Even with these caveats, he is able to conclude that “programmatic commitments exert a meaningful and identifiable effect on the strength of state courts” (p. 281).

THE VIEW FROM THE BENCH AND CHAMBERS: EXAMINING JUDICIAL PROCESS AND DECISION MAKING ON THE U.S. COURTS OF APPEALS

Vol. 26 No 8 (December 2016) pp. 155-156

THE VIEW FROM THE BENCH AND CHAMBERS: EXAMINING JUDICIAL PROCESS AND DECISION MAKING ON THE U.S. COURTS OF APPEALS, by Jennifer Barnes Bowie, Donald R. Songer, and John Szmer. University of Virginia Press, 2014. 296 pp. Hardcover $45.00. ISBN: 978-0813935997.

Reviewed by Virginia Hettinger, Department of Political Science, University of Connecticut. Email: virginia.hettinger@uconn.edu

In The View from the Bench and Chambers: Examining Judicial Process and Decision Making on the U. S. Courts of Appeals, Jennifer Barnes Bowie, Donald Songer, and John Szmer provide the strongest contribution to scholarship on the United States Courts of Appeals that has been offered to date. It provides a rich trove of quantitative and qualitative evidence on decision making, agenda setting, oral arguments, and opinion assignment assembled in one place. The authors use the Courts of Appeals database and other publicly available data sources for their descriptive analysis and quantitative models, but the evidence drawn from formal interviews with 60 judges (and informal meetings with many more) is what distinguishes THE VIEW FROM THE BENCH from all other books on the Courts of Appeals. The book is well written and achieves a good balance between accessibility, rigor, and scholarly standards of transparency and documentation. Overall, the authors demonstrate that circuit differences are critical, attitudinal and legal factors are important, and Supreme Court or en banc review is a somewhat predictable, low cost, and a low probability event.

Chapter 1 provides a thorough descriptive introduction to judges on the Courts of Appeals. It covers selection and the related issues of partisanship, ideology, and representation. The authors then document the appellate process, caseload growth, and the mix of issues before these courts. This chapter does not break new theoretical or evidentiary ground. Instead, it provides a solid foundation for readers new to the appellate courts and a refresher for more familiar readers.

Chapter 2 represents the book’s most significant contribution, both substantively and empirically, and its richness paves the way for greater theoretical development in the future. The authors provide detailed explanations of how appeals court judges conduct their work and how they view their colleagues and themselves. The authors document variation in how the circuits have dealt with increasing caseloads by relying on staff attorneys, using procedural terminations, and managing access to oral arguments. The authors present models of opinion assignment and the decision to grant oral arguments. The opinion assignment model combines variables drawn from the extant literature with testable assertions drawn from interviews and provides systematic quantitative analyses of both types of assertions. In contrast, the hypotheses in the oral argument model rely heavily on the interviews and this section may have benefited from a bit more discussion of the agenda setting literature from the United States Supreme Court. Nonetheless, the authors demonstrate that oral arguments are more likely to be granted when non-circuit members participate in the decision, case complexity is higher, and the case involves a civil rights or civil liberties issue.

In Chapter 3, the authors examine disposition time, opinion length, and publication decisions. They again draw heavily on suggestions from the interviews with judges as well as on existing scholarship. Given the large number of judicial vacancies, the reliance on judges sitting by designation, and the growing caseloads faced by many circuits, the findings presented here have important theoretical and policy implications. This chapter and the one before it highlight the importance for scholars who conduct comparisons across courts, especially courts with substantial discretion, to understand that [*156] being granted oral argument or having a published decision in one circuit may mean something very different than it does in another. These chapters improve our understanding of those differences in the Courts of Appeals.

CONTESTING IMMIGRATION POLICY IN COURT: LEGAL ACTIVISM AND ITS RADIATING EFFECTS IN THE UNITED STATES AND FRANCE

Vol. 26 No. 8 (December 2016) pp. 152-154

CONTESTING IMMIGRATION POLICY IN COURT: LEGAL ACTIVISM AND ITS RADIATING EFFECTS IN THE UNITED STATES AND FRANCE, by Leila Kawar. New York: Cambridge University Press, 2015. 210pp. Cloth $113.00. ISBN: 9781107071117. Paper $32.99. ISBN: 9781107415119.

Reviewed by Michael T. Light, Department of Sociology, Purdue University. Email: mlight@purdue.edu

Nearly 3 million people were deported from the United States Between 2008 and 2015, roughly 270,000 more than over the entire last century.1 In recent decades, the incarceration of foreigners across Western societies has increased substantially as well. As of 2014, there were roughly 68,000 noncitizen incarcerated in U.S. state and federal prisons (Carson 2015), and almost 115,000 foreigners imprisoned throughout the European Union (Aebi et al. 2015). This is the backdrop against which Leila Kawar engages a very timely and salient question: what difference does law make in immigration policymaking?

As Professor Kawar points out, she is not the first to address this question. A considerable amount research has investigated the efficacy of shaping migration policy through legal interventions. That is, can the courts be a useful venue for constraining restrictionist immigration policies? In Professor Kawar’s assessment, the conventional wisdom resulting from this body of work is that the law has little impact on immigration policy matters (p. 153). In CONTESTING IMMIGRATION POLICY IN COURT, Professor Kawar makes a compelling and provocative argument for why this view is premature, or at the very least, incomplete. Her main thesis is that prior research in this area has focused too narrowly on official case dispositions and the degree to which these legal rules limit immigration policies. As a result, “we neglect to consider how the process of contesting immigration policy in court may constitute the very terms of immigration politics” (p. 10). This book seeks to address this oversight.

Using a constructionist sociolegal approach, Professor Kawar aims to broaden the purview of law and immigration research by “conceptualizing court-centered contestation of immigration policy as a culturally productive activity with potentially important radiating effects” (p. 10). Professor Kawar argues that high-profile legal contests have transformed the political debates and policy making surrounding immigration by injecting distinctly juridical forms into the taken-for-granted concepts and categories that have become public currency in the politics of immigration. Put differently, activity in the courts has reframed the political dialogue. In this regard, legal contestation has a far more expansive, or radiating effect, than has been conceptualized previously. Drawing on seven years of exhaustive archival research, analysis of legal documents and media coverage, and over 60 in-depth interviews with immigrant rights litigators in the United States and France, Chapters 2-5 explicate this central thesis.

THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK

Vol. 26 No. 8 (December 2016) pp. 148-151

THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK, by Roberto Mangabeira Unger. London & New York: Verso, 2015. 224 pp. Cloth $85.00. ISBN: 978-1-78168-340-8. Paper $26.95. ISBN: 978-1-78168-339-2.

Reviewed by Paul Baumgardner, Department of Politics, Princeton University. Email: pb9@princeton.edu.

In those American political science departments that still retain some interest in jurisprudence, it is not uncommon that critical legal studies is given short shrift. If any work related to critical legal studies is assigned, it is generally one work: legal philosopher Roberto Mangabeira Unger’s THE CRITICAL LEGAL STUDIES MOVEMENT (Unger 1986). For some reason, Unger’s text remains the go-to work when academics want to quickly flatten, characterize, and often caricature critical legal scholarship and the critical legal studies movement.

For this reason alone, it strikes me as shocking how little academic coverage there has been around Roberto Unger’s most recent book. Almost thirty years after the publication of THE CRITICAL LEGAL STUDIES MOVEMENT, Unger has released an updated version of his classic text. In this most recent publication, titled THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK, Unger offers a renewed call to arms for the next generation of legal radicals. In addition to this war cry, the new introduction to the book provides a unique interpretation of the history of the leftist movement, including a highly controversial diagnosis of the reasons behind the movement’s demise. 

Unger begins with “The Context” behind updating the decades-old book (p. 3). This work began as an ambitious lecture on and for critical legal studies (hereinafter CLS), an “after-dinner speech, delivered at the Sixth Annual Conference in Critical Legal Studies” in March 1982 (p. 42). The speech was then published in the Harvard Law Review in 1983 and later turned into the important book. Unger has furnished a new edition, he tells us, “to place both the movement and the book in context and to reconsider both the book and the movement in the light of subsequent developments” (p. 3). Additionally, Unger intends “to look to the future, and to consider the vocation of legal thought now” (p. 3).

ENGINES OF LIBERTY: THE POWER OF CITIZEN ACTIVISTS TO MAKE CONSTITUTIONAL LAW

Vol. 26 No. 8 (December 2016) pp. 144-147

ENGINES OF LIBERTY: THE POWER OF CITIZEN ACTIVISTS TO MAKE CONSTITUTIONAL LAW, by David Cole, Basic Books, 2016. 308 pp. Hardcover $27.99. ISBN 0465060900.

Reviewed by Laura Van den Eynde, Center for Public Law, Université libre de Bruxelles (Belgium). Email: laura.van.den.eynde@ulb.ac.be.

In ENGINES OF LIBERTY, David Cole argues that the real drivers of constitutional change in the United States are not judges but committed citizens. He recounts in detail three different enterprises that shaped the understanding of constitutional provisions in recent years: the struggle for marriage equality, gun rights advocacy, and the curb of egregious counterterrorism measures adopted after 9/11. In a narrative style and combining interviews, analysis of documents, and participant observation (David Cole himself is involved in various civil society organizations and has litigated many cases), he presents these three case studies to point out that major transformations of U.S. constitutional law are less attributable to the Supreme Court than generally thought. Instead, he turns the spotlight to the multi-faceted work of dedicated individuals, in many instances outside the federal courts.

In his first example, the author traces the strategic choices that activists had to face along the way towards marriage equality. He portrays several individuals and organizations and presents the incremental victories and losses that ultimately led to the 2015 Supreme Court decision, OBERGEFELL V. HODGES, recognizing a constitutional right to marriage equality. In his next example, he traces the many-sided strategy of the National Rifle Association to pursue its goals, among which is the reading of the Second Amendment as guaranteeing an individual right to bear arms. In both instances it took the relentless work of committed individuals, designing a strategy of litigating in sympathetic states, discussing the issue in public events and private homes, fine-tuning their message to the general public, to obtain groundbreaking Supreme Court decisions. The protection of civil liberties after 9/11 faced different challenges: the actions had to be quickly reactive, there was a veil of opacity on the adopted counterterrorism measures, there were no state laws involved and no large constituencies to mobilize (p. 153). Civil society groups, such as the Center for Constitutional Rights or the ACLU, thus had to devise different strategies, for example spurring pressure from abroad. Through these three accounts, he demonstrates that constitutional change happened thanks to the work of citizens, trying to imprint the understanding of the Constitution with their own ideals.

This idea may not be so new — certainly since the creation of the Civil Rights Movement — but it is valuable to document and to record the efforts of relatively recent campaigns. Although Cole briefly mentions that inspiration was drawn from previous struggles — civil rights, right to vote for women, workers’ rights and abortion —, he could have inquired more deeply how campaigns inspired each other and which connections or networks were at play. As this idea is not new, Cole could also have drawn upon the abundant American literature on law and social change, legal mobilization and cause lawyering. For instance, Charles Epp argued almost 20 years ago that the increasing recognition of civil liberties was not only attributable to a blend of guaranteed rights, judicial independence, leadership of activist judges and rights consciousness in legal culture, but also to what he called the “support structures for legal mobilization”, consisting of organizations dedicated to establishing rights, committed and able lawyers, and sources of financing (Epp 1998). Even closer to the main idea of the book, there is the theory developed by Robert Post and Reva Siegel on the role that social movements play in creating new forms of constitutional understanding. Under the term ‘democratic constitutionalism’, they describe a process by which actors engage in norm contestation to challenge existing interpretations that can lead to changes over time (Post and Siegel 2007). It is thus regretful that the authors having formulated ideas close [*145] to those presented in this book are only discussed marginally, in the endnotes. Cole could have entered into dialogue with their theories by stressing his own contribution. Interested readers should have a look at an article he wrote in 2011 in which he develops the idea of “civil society constitutionalism”, calling for a reorientation of constitutional theory and practice and pointing out to the unique role played by civil society organizations to stand up for constitutional rights when they are dismissed by courts, by the political branches or even by “the people” at large (Cole 2011).