THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA

Vol. 28 No. 7 (December 2018) pp. 102-104

THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA, by Rachel Bowen. Cambridge University Press, 2017. 292pp. ISBN 978-1-107-17832-8.

Reviewed by Lydia Tiede and Susan Achury, Department of Political Science, University of Houston. Emails: lbtiede@uh.edu and susan.achury@gmail.com.

Rachel Bowen’s THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA re-conceptualizes our understandings of the threats to judicial independence that judges and courts encounter in weak states. While much of the extant literature on courts worldwide focuses on their independence from political actors, Bowen offers a fascinating look at how societal actors can both promote and undermine the institutional and decisional independence of courts. She also offers a comparison of five understudied judiciaries in Central America found in Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua, all but one of which has emerged from repressive rule, civil violence, and foreign interference. By analyzing courts and other legal actors in these countries, she shows how judicial power evolves over time to confront criminality, violence, and corruption as well as to confront the more often studied encroachments from strong executives and legislators. Bowen’s book includes information from extensive interviews and detailed accounts of how judiciaries and other actors in Central America navigated complex environments in the period from 1979 to 2015.

Bowen asks “how weak democracies can build courts and other justice sector institutions that can exercise autonomous power and contribute to building the rule of law” (p. 10), defined as “a system in which power is exercised through democratically enacted formal laws applicable to all equally and checked by formal accountability institutions” (p. 223). To answer this question, Bowen asserts in the first chapter that courts are more effective in building the rule of law if they are both independent from political actors and autonomous from societal actors, including criminals, businessmen, and others who have the means to corrupt the judicial policy-making process. Bowen makes a significant contribution by focusing our attention on societal autonomy which allows judges in weak states to give “practical effect” to law without “threats from violent actors and enticements from their wealthy counterparts” (p. 2). While political independence allows courts to act against public officials who have overstepped their power, societal autonomy allows courts to prosecute a variety of actors for crimes which undermine citizen security and highlight state weakness.

Bowen uses both political independence and societal autonomy to create a useful topology of four judicial regime types. A liberal judicial regime (defined by moderate to high levels of political independence and societal autonomy) is best placed to build the rule of law and is exemplified in Costa Rica since 1989 (Chapter 3). In stark contrast, the government control judicial regime lacks both political independence and societal autonomy and exists within authoritarian contexts existing in Guatemala, Honduras, El Salvador, and Nicaragua in the 1970s and 1980s (Chapter 4). In line with other scholars who analyze the rule of law in authoritarian contexts (see Moustafa and Ginsburg 2008), Bowen analyzes a wide variety of responses from judicial and other actors operating within this judicial regime type as countries transition from authoritarian to hybrid regimes and then to unconsolidated democracies.

A clandestine control judicial regime has high political independence, but limited or no autonomy from societal actors and thus is plagued by corruption. While this type of [*103] judicial regime may support democratic development, it is often stymied by threats from the private sector. Guatemala from 1986-2002, presented in Chapter 5, provides the best example of a clandestine control judicial regime because despite the signing of peace accords in 1996, the country’s movement toward democracy coincided with an increase of organized crime, violence and insecurity – a useful reminder about how difficult it is to establish the rule of law after conflict.

CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE

Vol. 28 No. 7 (December 2018) pp. 97-101

CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE, by Tamir Moustafa. New York: Cambridge University Press, 2018. 206pp. Paper $29.99. ISBN: 978-1-108-43917-6

Reviewed by Steven D. Schaaf, Department of Political Science, The George Washington University. Email: stevenschaaf@gwu.edu.

How and why do debates regarding the role of religion in society end up being adjudicated in the courthouse? And what are the consequences of using law and courts to resolve religious disputes? Tamir Moustafa’s CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE explores these questions through a rigorous analysis of the judicialization of religion in Malaysia. This book is an impressive undertaking, contributing to a diverse body of research on comparative judicial politics (Ferejohn et al 2009; Helmke and Rios-Figueroa 2011; Kapiszewski et al 2013), social and legal mobilization (Zemans 1983; McCann 1994; Anderson 2006; Arrington 2018), and the relationship between the religious and secular in social and political life (Gill 2001; Grzymala-Busse 2012; Fox 2015).

CONSTITUTING RELIGION keenly articulates a puzzle that deserves more attention in political science: in many countries, particularly majority-Muslim countries, state law and courts are used to codify religious principles, construct boundaries between religious and secular spheres, and regulate religious practice. The concept of religion broadly encompasses all “systems of beliefs or practices oriented toward the sacred or supernatural” (Smith 1996). But the courthouse is a very specific forum, one in which disputes tend to be expressed in a unique legal jargon, rendered as an adversarial conflict with a binary outcome, subject to the technicalities of judicial procedure, constrained by standards of admissible evidence, and resolved through the application of state law, rather than divine law. Hence, it is odd that courts should ever emerge as institutions for adjudicating conflicts of a sacred or supernatural nature. By investigating the judicialization of religion in Malaysia, Moustafa’s work takes an important step forward in evaluating how the judicial toolkit lends itself to construing and resolving sensitive political and social disputes.

Moustafa theorizes that religion becomes most heavily judicialized under the following conditions: (1) religion is tightly regulated – with the implication being that such regulations are established through law; (2) judicial empowerment and public access to the judiciary are high; (3) constitutions make dual commitments to both religion and liberal rights; and (4) different legal regimes apply to different communities. Of course, CONSTITUTING RELIGION is a theory-building project, not one that aims to test each of these conditions empirically (p. 63). The main strength of the book is Moustafa’s detailed and contextualized analysis of the Malaysian case; the theory it develops is heavily attuned to Malaysian history and the complexities of Malaysia’s political environment. But some of this theoretical richness becomes blurry when the insights Moustafa derives from the Malaysian case are conceptualized in more general – and generalizable – terms.

For instance, when stated broadly as an independent variable, the first factor promoting the judicialization of religion appears a bit too on-the-nose. If religion is tightly regulated by law, it seems apparent that the judiciary – being charged with interpreting and applying state law – should be more active in religious affairs. At the same time, Moustafa’s analysis of the Malaysian case does quite a bit more than say “the legalization of religion facilitates its judicialization.” In fact, some of CONSTITUTING RELIGION’s most compelling insights come from explaining how religion came to be so heavily regulated by Malaysian law in the first place.

PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS

Vol. 28 No. 7 (December 2018) pp. 94-96

PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS, by Louis Fisher. Kansas: University Press of Kansas, 2018. 296pp. Paper $24.95. ISBN: 978-0-7006-2685-4. ISBN: 0700626859

Reviewed by Kimberley Fletcher, Department of Political Science, San Diego State University. Email: kfletcher@sdsu.edu.

PRESIDENT OBAMA: CONSTITUTIONAL ASPIRATIONS AND EXECUTIVE ACTIONS, by Louis Fisher is a well written account of basic constitutional principles, including separation of powers, checks and balances, and formulating public policy through presidential decree vis-à-vis legislative enactment. Fisher proficiently intertwines a historical, legal and political evaluation to demonstrate how and why unilateral attempts by President Barack Obama to shape national policy without Congress have done substantial harm to the nation and our constitutional system. Fisher employs a rather straightforward theory of presidential power and authority in his analysis of various policy initiatives advanced by the Obama administration. He successfully weaves his theory into an expert retelling of the institutional power plays between the executive, and legislature, illustrating the main goals of the book: how we understand change, how it persists, and how this change is instituted over developmental time. Fisher also examines the integral role of the courts in this process. At times, the courts have championed change with a decision like OBERGEFELL V. HODGES (2015). But Fisher finds the courts are also an inadequate response to executive overreach, as they have also enabled continued claims of executive power.

Fisher demonstrates how the basic system of checks and balances has been substantively changed over time by Supreme Court decisions (beginning with the Court’s 1936 decision in UNITED STATES V. CURTISS-WRIGHT EXPORT CO., which established the sole organ doctrine), military initiatives (including President Truman and the Korean War, President Clinton and hostilities in Haiti and Bosnia, President Obama and military action in Libya, and drone warfare), scholarship (idealizing a pro-presidential position beginning with World War II and on), and by presidents prone to exert unilateral power. This book addresses the unceasing use of unilateral actions by presidents of both parties, including President Donald J. Trump’s recent endorsement of having even more power lodged with the executive branch.

Fisher’s broad framework successfully evaluates Obama’s two terms against the backdrop of prior executives, with attention given to the presidencies of Truman to the present. Fisher begins by evaluating the presidential power that Obama inherited. These powers date back to the basic principles set forth by the Framers but have been considerably altered over developmental time. Fisher then expertly demonstrates that by understanding how a campaign promise to uphold the Constitution can be broken upon entering office we can better grasp the practical realities of responding to congressional gridlock and threats to our national security.

In a detailed account of the Obama administration’s expansive exercise of Article II powers, Fisher illustrates that the political realities of a presidential candidate and the confines of the office resulted in President Obama, an authority on the Constitution, pursuing his agenda ever more aggressively through presidential action. Policy areas reviewed include climate change, the auto industry bail-out, and financial reform. Even though Obama had vowed to revere the separation of powers and the confines of the executive’s constitutional authority, Fisher illustrates that Obama was not unlike other modern presidents in his actions. When Obama’s ambitious policies failed, Fisher draws attention to the politics and the apprehensions that can [*95] propel presidential overreach. In this regard, Fisher speaks to the effect of executive prerogatives on bipartisan backing, public perception, and the efficiency of government.

THE RHETORICAL INVENTION OF DIVERSITY: SUPREME COURT OPINIONS, PUBLIC ARGUMENTS, AND AFFIRMATIVE ACTION

Vol. 28 No. 7 (December 2018) pp. 91-93

THE RHETORICAL INVENTION OF DIVERSITY: SUPREME COURT OPINIONS, PUBLIC ARGUMENTS, AND AFFIRMATIVE ACTION, by M. Kelly Carr. East Lansing: Michigan State University Press, 2018. 310pp. Paper $49.95 ISBN: 1611862841.

Reviewed by Stephan Stohler, Department of Political Science, SUNY, University at Albany. Email: sstohler@albany.edu.

With the appointment of Justice Brett Kavanaugh, conservatives on the U.S. Supreme Court finally seem well positioned to strike down affirmative action in college admissions. This end has been long in the making. Since the 1970s, many conservatives on the campaign trail, in the Department of Justice, and on the federal bench have taken a dim view of these race-conscious, results-oriented policies. What is surprising, however, is that it has taken so long. Republican presidents have appointed a large majority of the justices to the Supreme Court since 1970. And yet, the conservative bloc has never quite been able to find the necessary five votes to advance a “colorblind” interpretation of relevant civil rights statutes or the Constitution's Equal Protection Clause that would prohibit universities from considering race in college admissions. Instead, at key moments over this forty-year time span, some of those conservative judges have eschewed colorblind arguments in favor of an alternative idea that – at least for now – dominates. Specifically, the Court has held that universities can sometimes use affirmative action policies to help them capture the educational benefits which flow from a diverse student body.

That argument and its origin in Supreme Court jurisprudence are the topic of M. Kelly Carr's new book, THE RHETORICAL INVENTION OF DIVERSITY. Specifically, Carr documents how Justice Lewis Powell, the conservative justice responsible for introducing the diversity argument at the Supreme Court level, crafted his famous, peculiar opinion in REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978). I say peculiar because although Powell announced the Court's conclusion in the matter, no single justice was willing to join Powell's entire opinion, much less his diversity rationale. As we know, Powell's more conservative colleagues condemned the affirmative action policy in question because it violated a colorblind interpretation of Title VI of the Civil Rights Act of 1964; his more progressive colleagues endorsed the policy because it remedied historical injustices.

THE RHETORICAL INVENTION OF DIVERSITY is focused first and foremost on how judges craft their opinions. Carr's core thesis is that judges examine the rhetorical choices available to them and then craft arguments best suited to their situation by drawing on cultural resources to defend their conclusions. They select those answers that they believe “meet the needs of the legal question, the legal institution, and the broader public audience and context” (p. 27). And, when justices cannot find an existing answer that meets these criteria, they craft their own, as Justice Powell did in BAKKE. To support this claim, Carr systematically examines the full range of arguments found in previous decisions and the many amicus briefs submitted in BAKKE; the memoranda and notes between Powell and his law clerk, Bob Comfort; and various drafts of the opinion itself. What emerges is a provocative story with significant theoretical implications for our study of judicial behavior and legal opinions.

Carr’s endeavor is a success. This book situates Powell’s opinion within a much larger range of potential arguments that Carr develops from the approaches advocated in a record-breaking number of amicus briefs. As expected, these briefs not only supplied the Court with a range of material from which justices might find an answer, but also insight into how various rhetorical decisions might play out. For example, in a well-documented exchange between Justice Powell and Comfort, Powell [*92] demonstrated substantial reluctance to support affirmative action as a remedy for historical injustices because such an approach would risk “delving into the intractables . . . of deciding whose ox has been gored more often and for how long” (p. 135). The way forward, at least from Powell’s perspective, was to find some balance between those briefs, which largely condemned the creation of a system of racial entitlements, and those defending the use of race-conscious decision making to redress social dislocation. Powell found a partial answer in the briefs supplied by a handful of elite universities, arguing that a strong liberal education required exposure to a range of viewpoints. These exchanges between Powell and Comfort are perhaps the most illuminating in the entire book, documenting Powell's rhetorical decisions to transform a relevant answer based on a new set of values that went beyond what the immediate parties envisioned.

THE FUNCTIONS OF LAW

Vol. 28 No. 6 (September 2018) pp. 88-90

THE FUNCTIONS OF LAW by Kenneth Ehrenberg. New York: Oxford University Press, 2016. 217pp. Cloth $95.00. ISBN 978-0-19-967747-4.

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

Kenneth Ehrenberg states that the aim in his new book THE FUNCTIONS OF LAW is to help understand the “purposes, plans, and goals” of law, which will, he thinks, ultimately help us better understand “ourselves” (p. 198). More specifically, the book is an entry into the Legal Positivist/Natural Law debate, a debate that has been going on for well over a century. The central issue in this debate is how to explain the normativity of law: why we feel that law is binding on us. The book will not be easy reading for those not well-versed in this debate; Ehrenberg assumes a lot of background knowledge of the issues, and much of the book is concerned with discussing recent developments especially in the positivist camp. Ehrenberg broadly endorses the positivist position, and seems to aim the book at other positivists, though he is often less than clear in the book about just where he stands.

The basic thesis of the book is a defense of the idea that the law should be understood in terms of its functions. To many readers it will no doubt come across as surprising that such a position needs to be defended: is it not obvious that law, like any human institution, serves various functions in society? However, some legal positivists have been concerned to deny such a functional view, apparently as a reaction against the Natural Law position. It is not entirely clear what it would even mean to deny that law is a functional entity. Apparently, some positivists think that law has too many different sorts of goals for it to be uniquely characterized in terms of its functions. But as Ehrenberg responds, law can have multiple functions, and it can share its functions with other institutions, yet it is no less a functional entity for that. This seems very reasonable, but one is left wondering why positivists would be motivated to take such an odd position, and it would be have been useful to further explore this position.

The book is argued at a highly abstract level, so much so that many non-philosophers (and many philosophers not familiar with the positivist/Natural Law debate) may find it challenging to read. For example, though the central topic of the book is the functions of law, there is no actual discussion of what those functions are until the very end of the book, in Chapter 8 entitled “The Functions Themselves.” Here, the author provides an overview of the literature, describing how different writers have described the functions of law. These functions include creating social order, solving coordination problems, providing standards of behavior, and of course promoting justice and the common good. Some readers may wish that this sort of discussion constituted the main body of the book rather than a brief discussion at the end, given the goal of the book to help us understand the purposes and goals of law.

Ehrenberg’s method of doing philosophy may also make this difficult reading for many non-philosophers. Consider for example the amount of conceptual apparatus introduced to explain how a stone wall can function as a boundary (p. 34). To explain this fact, Ehrenberg draws on “collective intentions,” “social facts,” “impersonal deontic powers,” “institutional status,” “status functions,” types versus tokens, and “status function codification.” It is by no means clear that introducing all this quasi-technical jargon effectively clarifies the problem rather than complicates it. This is not to deny the difficulty of the issue: how does a stone wall take on social significance? It is essentially the same problem of explaining how law can function by creating rights, duties, and obligations. Much of the book is devoted to this method of explanation by introducing new distinctions; Ehrenberg for instance draws on proper versus Cummins functions, constitutive [*89] versus regulative rules, collective acceptance versus teleological accounts, functional versus modal kinds. All of these distinctions are controversial and problematic in themselves. I think there should be a high bar in introducing new and more complex distinctions: do they prove their usefulness by helping us understand and explain the topic in question? Do these distinctions explain how a stone wall can be a boundary marker? It is not clear to me that they do.

IS RACIAL EQUALITY UNCONSTITUTIONAL?

Vol. 28 No. 6 (September 2018) pp. 84-87

IS RACIAL EQUALITY UNCONSTITUTIONAL? by Mark Golub. New York: Oxford University Press, 2018. 210pp. Cloth $65.00. ISBN: 978-0190683603.

Reviewed by Leslie F. Goldstein, Professor Emerita, Department of Political Science. University of Delaware. Email: lesl@udel.edu.

The preface of Mark Golub’s book IS RACIAL EQUALITY UNCONSTITUTIONAL? observes that a color-blindness requirement for US. law has a paradoxical “race-intensifying effect” (p. x). The author means this in two senses. First, the knowledge that decision-makers must refrain from considering race in their decisions has the effect of intensifying rather than diminishing their consciousness of race because race in the U.S. so deeply permeates our psycho-social reality (pp. 25-26). Secondly, if decisions about hiring for desirable jobs and college acceptances are made in a color blind fashion, such decisions would freeze into place existing disparities of income and other life advantages in the U.S. (which is the very reason that affirmative action programs developed in the first place.)

While the book offers a number of interesting and even eye-opening insights along with an impeccably accurate history of Supreme Court decisions on segregation, desegregation and affirmative action, on the whole it disappoints. Golub acknowledges that the term “constitutional” (as in the book’s title) is open to two meanings (p. xi). It can carry the normative meaning – constitutional according to the Constitution read in its best lights, as it ought to be interpreted; or, it can carry the empirical/predictive sense – constitutional according to how the U.S. Supreme Court justices have been recently interpreting, and are likely to be continuing to interpret, the Constitution. After laying out these options in the Preface, Golub by the end of the book has dropped the normative option, and ends with what reads to me as a descent into hopelessness. Because of its slavery and post-Reconstruction past, its present system of racial hierarchy in general distribution of benefits, and the Supreme Court’s current trajectory toward totally abolishing affirmative action, Golub concludes that the U.S. Constitution is irredeemably opposed to racial equality.

He comes to this conclusion after first tracing the views of legal scholars who defend and critique what he calls “color blind constitutionalism” (i.e., opposition to affirmative action) (chs. 1 and 2), in the process noting that both liberals and conservatives view a color-blind legal system as that to which the Constitution aspires (either immediately, per the conservatives, or, per liberals, eventually, once material racial equality is attained). Golub then in chs. 3-5 traced the Supreme Court’s path toward color-blind constitutionalism from its beginnings in PLESSY V. FERGUSON (1896) to its near-explicit enactment in the recent anti-affirmative action decisions such as PARENTS INVOLVED IN COMMUNITY SCHOOLS V. SEATTLE (2007) and RICCI V. DI STEFANO (2009). Golub treats this Supreme Court trajectory as though it were the only way to read the Constitution or somehow the way it will inevitably be read. Therefore, for Golub, the only path to racial justice would be to embrace “a decisive break from [American values]” (p. 168). With italicized emphasis, he urges readers to accept the belief that “racial equality may in fact be unachievable within the current American constitutional order” (p. 164).

LANGUAGE AND THE LAW: LINGUISTIC INEQUALITY IN AMERICA

Vol. 28 No. 6 (September 2018) pp. 82-83

LANGUAGE AND THE LAW: LINGUISTIC INEQUALITY IN AMERICA, by Douglas A. Kibbee. Cambridge, United Kingdom: Cambridge University Press, 2016. 240pp. $30.99. ISBN: 978-1-107-02531-8. ISBN: 978-1-107-62311-8.

Reviewed by Sixuan Lu, Tianjin University Law School. Email: alex870621@vip.163.com.

In his book LANGUAGE AND THE LAW: LINGUISTIC INEQUALITY IN AMERICA, Professor Kibbee provides comprehensive statutory and case law analysis for readers to understand the complicated relationships between language and equality, democracy, the legal system, education, government, and employment. This book review will introduce the summary of each chapter and subsequently give personal opinions.

In Chapter One, the author establishes the big picture of potential linguistic inequity and fairness issues by defining discrimination (pp. 3-4), providing a short history of relevant human rights in the international tradition and the American tradition (pp. 4-12), and explaining groups, classes and classifications (pp. 12-18). He states that the language is frequently considered under the rubric of national origin rather than of race (p.18). The author suggests the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the U.S. Constitution might be useful for understanding linguistic discrimination (pp. 19-32).

The second chapter mainly addresses voter identification and registration as restrictions which aim to suppress minority language speakers’ participation in the electoral process. This serves an anti-democratic purpose, especially on the assumption that knowledge of English has no guaranty against voting in ignorance, or against manipulation by demagoguery, or direct voter fraud (p. 36).

Chapter Three explains the unfair legal system for linguistic minorities particularly for interpreters (pp. 54-68) and jury members (pp. 68-82). Those who speak English as a second language need special services at every stage of the legal process including not only litigation for criminal, civil, and administrative cases, but also interacting with police or other agencies (p. 55). Impartiality raises two issues with language: first on the exclusion of linguistic minorities from the jury pool, and secondly on the ability of a juror to comprehend non-English testimony (p. 68).

THE TRANSPARENCY FIX & THE ART OF REVOLT

Vol. 28 No. 6 (September 2018) pp. 76-81

THE TRANSPARENCY FIX: SECRETS, LEAKS, AND UNCONTROLLABLE GOVERNMENT INFORMATION, by Mark Fenster. Stanford: Stanford University Press, 2017. 296pp. Cloth $85.00. ISBN: 978-1-50-360171-0. Paper $25.95. ISBN: 978-1-50-360266-3. Digital $18.65. ISBN: 978-1-50-360267-0.

THE ART OF REVOLT: SNOWDEN, ASSANGE, MANNING, by Geoffroy De Lagasnerie. Stanford: Stanford University Press, 2017. 128pp. Cloth $60.00. ISBN-13: 978-1-50-560014-0. Paper $18.95. ISBN-13: 978-1-50-360332-5. Digital $9.99. ISBN-13: 978-1-50-360324-0.

Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University. Email: guayiya@bellsouth.net.

These two books each raise radical challenges to conventional thinking about the tensions between democratic theory and the modern administrative state. Both authors focus on secrecy. Democracy presupposes that the press and public must be generally well-informed about government policies and actions, yet both authors see the constant efforts of politicians and bureaucrats to restrict access to information as inconsistent with this norm.

The conventional view seeks to balance governments’ acknowledged needs for secrecy against the transparency mandated by democratic theory. Fenster, however, argues that transparency is an unrealistic and theoretically incoherent ideal. In sharp contrast, De Lagasnerie argues that the state is inherently undemocratic and thus illegitimate.

Fenster is a law professor, well-schooled in empirical social theory. He believes that the “transparency fix,” defined as reliance on laws that mandate access to governmental information, depends on the unrealistic idea that “a truly democratic state transparently and perfectly communicates its actions to its truly democratic, engaged citizens” (p. 5). Legal reforms, he says, have barely dented the gigantic pool of classified documents, and most transparency advocates feel obliged to recognize “a set of exceptions to disclosure that are as broad and opaque as the transparency norms themselves” (p. 10), making their vision unattainable. Yet practitioners of secrecy are equally unrealistic in thinking that they themselves can control the state’s flow of information.

Fenster’s historical narrative focuses on the rise of “freedom of information” and the “right to know” as cherished principles in the WWII period, and their incorporation in law in the 1960s and 1970s. Advocates drew on Locke, Mill, Rousseau, Bentham, Kant, John Adams and Madison to argue that transparency is crucial for instilling and supporting democratic values, curbing corruption and waste, and (for some) allowing direct popular self-rule. Transparency advocates hoped that US courts would recognize this principle as encompassed within the First Amendment, but the courts declined to do so.

STOP AND FRISK: THE USE AND ABUSE OF A CONTROVERSIAL POLICING TACTIC

Vol. 28 No. 6 (September 2018) pp. 73-75

STOP AND FRISK: THE USE AND ABUSE OF A CONTROVERSIAL POLICING TACTIC, by Michael D. White and Henry F. Fradella. New York: New York University Press, 2016. 256pp. Cloth $23.53. ISBN-10: 1479835889.

Reviewed by Jeffrey Ian Ross, University of Baltimore. Email: jross@ubalt.edu.

This book, consisting of six chapters and an epilogue, written by White and Fradella, two well respected criminologists and policing scholars at Arizona State University, examines the history of stop, question and frisk (SQF) in the United States, and the legal cases and scholarly research connected to this practice. In short, the writers review how in some cases stops by law enforcement officers are more or less serious and whether the evidence collected because of the stop and arrest of the individual can be admissible in a court of law.

In Chapter 1, “Two Tales of Stop and Frisk,” the shortest chapter, the authors analyze the infamous TERRY V. OHIO case (1968), which, according to the authors, “formalized the authority of the police to stop citizens on the street based on a standard of proof lesser than probable cause, and it also gave them the right to conduct superficial ‘pat down’ searches of those citizens whom the stop…” (p. 2). One of the reasons for focusing on this practice is because “the term ‘stop and frisk’ has in many places become synonymous with racial profiling” (p. 7). White and Fradella state that, “The central focus of this book is the disconnect between current perceptions of SQF as a form of racial discrimination by police and the strategy’s historical, legal, and discretionary foundations” (p. 8). The writers end the chapter by arguing that, “in twenty-first century policing, SQF should be assessed in terms of both legal … and procedural justice standards” (p. 15).

Chapter 2, “The Historical Context,” outlines the history of SQF. This chapter reviews important court cases and the differences in the burden of proof practice. This part of the book outlines the relevant components of the Fourth Amendment (which protects citizens against unreasonable search and seizure). The authors state that, “The Reasonableness Clause of the Fourth Amendment limits government authority to conduct ‘search and seizures,’ but does not define what those terms mean” (p. 24). They also analyze the Uniform Arrest Act that was introduced in 1939.

Chapter 3, “The Contemporary Legal Context,” examines research on implicit bias and “the free to leave test.” It also considers the notion of “furtive gestures” as a pretext for stops. The authors review numerous court cases that relate to SQF. White and Fradella argue that, “TERRY and most of the SQF cases decided since 1980 collectively ignore the fundamental problems with using a low standard of proof that invites the use of racial, ethnic, and socioeconomic class stereotypes as part of a calculus of suspicion” (p. 78). Also examined are three important Supreme Court decisions: TERRY V. OHIO, SIBRON V. NEW YORK, and PETERS V. NEW YORK. These “cases adopted formal rules governing police-initiated street encounters with citizens under circumstances amounting to less than full arrests” (p. 44). The authors also look into the notion of implicit racial bias (pp. 64-65). They state, “unconscious cognitive processes often lead people of all races to view young Black men with suspicion” (p. 65).