EMINENT DOMAIN: A COMPARATIVE PERSPECTIVE

Vol. 28 No. 1 (February 2018) pp. 13-15

EMINENT DOMAIN: A COMPARATIVE PERSPECTIVE, by Iljoong Kim, Hojun Lee, and Ilya Somin (eds.). Cambridge, UK: Cambridge University Press, 2017. 316pp. Hardback $110.00. ISBN: 978-1-107-17729-1. Paperback $35.99. ISBN: 978-1-316-62833-1

Reviewed by Thomas J. Miceli, Department of Economics, University of Connecticut. E-mail: thomas.miceli@uconn.edu.

The proper scope of a government’s use of its eminent domain power has been the subject of much debate in recent years. The debate was rekindled in the United States by the Supreme Court’s ruling in KELO V. CITY OF NEW LONDON (545 U.S. 469, 2005), which reaffirmed the ability of local governments to take private property for large-scale urban redevelopment projects provided that there was a discernable public benefit, such as the creation of jobs and enhanced tax revenues. The specific issue in dispute concerned the proper interpretation of the “public use” requirement of the Fifth Amendment Takings Clause. KELO followed previous case law by expanding public use to include any “public purpose,” thereby broadening the scope of eminent domain to encompass actions that involved spillover public benefits, even if the principal beneficiary was a private entity. In the wake of KELO many states responded to this perceived overuse of eminent domain by enacting laws that prohibit so-called “development takings.” The current book contributes to this debate by adding a comparative perspective through review of the takings policies in several countries and legal systems. This is a welcome addition to the literature that will be of wide interest to those who study the eminent domain issue.

The editors frame the debate with an introduction that identifies “six pillars” of takings law: (1) the public interest requirement; (2) permitted users (“subjects”) of eminent domain; (3) the just compensation requirement; (4) due process; (5) distribution of the development surplus; and (6) dispute resolution. These pillars can actually be boiled down to three fundamental factors. The first concerns the scope of takings, which encompasses both the public use (public purpose/public interest) requirement—that is, what sorts of projects justify the use of eminent domain—and the permitted users (pillars one and two). The issue here concerns whether eminent domain should be limited to the provision of true public goods, which are typically provided by the government and whose benefits cannot be denied to anyone, or whether it should also be available to private developers who face holdout problems or other impediments to land assembly. The academic literature is divided on this issue, depending on how public use/interest is defined. In his chapter on takings in the U.S., for example, Ilya Somin distinguishes between the “narrow” view (takings permitted exclusively for public goods or common carriers like railroads), and the “broad” view (takings permitted for any project, public or private, in which a conceivable public purpose can be identified). KELO clearly embodies the latter.

The second factor concerns the amount of compensation that condemnees should receive, which encompasses pillars three and five. Compensation in most countries is typically set at fair market value, but it is widely acknowledged that this measure undercompensates landowners because it excludes “subjective value,” defined to be the amount that owners value their land in excess of what a willing buyer would pay for it. In addition, there is the question of whether landowners should share in the surplus created by the taking. In a consensual transaction, the seller would not only be assured of full compensation for her subjective value (for otherwise she would walk away from the deal), she would also have the ability to negotiate for a share of the expected gain from the proposed use of the land. Eminent domain laws nearly universally deny owners any such share. [*14]

The third factor concerns the procedural rules by which the taking actually occurs, encompassing both the period during which the terms of the taking are set (pillar four), and the process by which condemnees can appeal the decision after it has been made (pillar six). In evaluating these three factors from a law-and-economics perspective, it is important to keep in mind two key points. First, that there is a good economic justification for the use of coercive transfers—namely, to overcome market failures due to holdouts or other transaction costs that would result in underprovision of public goods like highways, as well as large-scale economic development projects. Second, the collective purpose of the legal safeguards surrounding the use of eminent domain is meant to replicate as closely as possible the conditions that would prevail in a consensual market transaction.

CONTESTED JUSTICE: THE POLITICS AND PRACTICE OF INTERNATIONAL CRIMINAL COURT INTERVENTIONS

Vol. 28 No. 1 (February 2018) pp. 7-12

CONTESTED JUSTICE: THE POLITICS AND PRACTICE OF INTERNATIONAL CRIMINAL COURT INTERVENTIONS, by Christian De Vos, Sara Kendall and Carsten Stahn (eds). Cambridge, United Kingdom: Cambridge University Press, 2015. 526pp. Hardback $140.00. ISBN: 978-1-107-07653-2. Open Access $0.00. ISBN: 978-1-139-92452-8.

Reviewed by Chris Kendall, Department of Politics and Government, University of Puget Sound. Email: ckendall@pugetsound.edu.

The year 2002 represents a turning point in the evolution of international criminal law. In that year, the sixtieth state ratified the Rome Statute, bringing into being the International Criminal Court (ICC). For the first time, a permanent tribunal with an independent prosecutor would investigate and prosecute crimes of concern to the international community, namely war crimes, crimes against humanity, genocide, and the (at the time still undefined) crime of aggression. Fifteen years later, scholars, lawyers, and activists are still debating the merits and pitfalls of such an ambitious project. CONTESTED JUSTICE is the most recent contribution to this debate, and one of the best. Drawing on more than a decade of the Court’s actual functioning, this volume succeeds in its goal of moving beyond a Hague-centered, hermeneutic account of international criminal law’s doctrinal development toward a broader critique of the ICC’s interactions with the societies in which it intervenes.

Contestation is the name of the game in this volume, and the domains of contestation are vast, nuanced, and intermingled: law/politics, retributive/restorative justice, prosecution/peace, international/local, victims/perpetrators, victims/non-victims, society/state. This volume demonstrates that the ICC is a field of “contested justice” not just in the legal sense, but also in the form of domestic and international political contestation.

Two themes emerge from this complex web. First, the ICC is not merely international in the traditional sense of “interstate.” Rather, it represents a global force that attempts to achieve compliance with international norms while claiming to embrace domestic diversity and the needs of the local. Second, the ICC is not just a criminal court. It increasingly seeks to move beyond a legalistic, retributivist, prosecutorial approach to criminal law toward a more politically-informed, restorative, transitional-justice model of conflict resolution. These two themes are themselves intertwined. Post-conflict societies are often unable or unwilling to adopt whole-heartedly a prosecutorial approach to justice, and the ICC (predictably) lacks the institutional expertise or bandwidth to fully meet the needs of diverse, fractured societies. The ICC—and the entire liberal internationalist endeavor atop which it sits—remains in precarious equipoise, held in place by these tensions.

The volume’s authors address these tensions from multiple disciplines (anthropology, political science, sociology, law) while drawing on a wealth of professional expertise (academics, lawyers, NGO activists, and intergovernmental organization officials). This diversity of inputs underscores the volume’s impressive coherence. Collectively, the editors and authors have produced an engaging, nuanced debate with multiple points of entry to a fascinating topic.

HOW TO DO THINGS WITH INTERNATIONAL LAW

Vol. 28 No. 1 (February 2018) pp. 4-6
HOW TO DO THINGS WITH INTERNATIONAL LAW, by Ian Hurd. Princeton: Princeton UP, 2017. 187pp. Cloth $29.95. ISBN: 978-069-1170114.

Reviewed by Amber Vayo, Department of Political Science, the University of Massachusetts Amherst. Email: avayo@polsci.umass.edu.

Ian Hurd’s HOW TO DO THINGS WITH INTERNATIONAL LAW makes a compelling intervention in the arena of law and politics. Rather than accept the philosophical constraints of either IR realists or liberals, Hurd takes an instrumentalist view of international law that pulls from many schools of thought. Using a series of cases to illustrate his argument, Hurd brings a refreshing pragmatism to the discussion of what international law is by exploring it as part of international power politics rather than a neutral force which treats all state actors equally. In addition, Hurd brings in a good bit of legal philosophy cleverly concealed beneath a practical guide to understanding international power politics, and it works. By side-stepping disciplinary constraints, Hurd creates a provocative book that should find favor among interdisciplinary readers, especially those in IR and in law and society.

While unmasking the power dynamic inherent in international law could churn out a cynical pessimism, Hurd maintains a fairly non-biased—and at times hopeful—explanation of how law works. Abandoning the view that law is somehow a neutral force that is self-enforcing, he claims that “international law is properly seen…as a social practice in which states and others engage” (p. 2). His boldest claim is that “we cannot get away with assumptions of inherently superior, apolitical rule following” (p. 3). In addition to conceptualizing the social process of law, Hurd draws out the ways in which “the instrumental use of law to legitimize state policy is ubiquitous” (p. 5) by using contemporary cases such as the ban on war, the rules regarding nuclear weapons and drones, and the use of torture. The clarity and organization throughout the first three chapters, in which Hurd lays out his introduction and primary philosophical and methodological underpinnings, are common throughout the book. While each chapter is set up in a way that makes stand-alone reading easy (useful for excerpting), discussion of the permissive effects of law becomes a little repetitive by the sixth chapter.

Throughout his cases, Hurd explores different, interrelated conceptions of law through concrete examples. He first confronts the reality that wars, while illegal under international law, have been quite common since the end of the Second World War, and addresses the issues as a matter of law’s political power. He claims the UN Charter, “facilitates the use of force by providing self-defense as an iron-clad legal justification” (p. 51). When rule following becomes the validation of a state’s legitimacy, one does not get better outcomes; rather, as Hurd demonstrates, one finds a way to justify behavior as compliant with agreed upon rules (even if interpretation of those rules is contentious). This is the strongest case study where he outlines the permissive and constraining effects of law and links those effects back to the political process. While international law should constrain states from making war (and in theory, strong laws would constrain strong states), Hurd notes that the “self-defense” justification has given rise to a permissive effect on a country’s ability to engage in armed conflict (if not officially declared war).

Hurd posits that what counts as justification for war—not only existential threats, but dangers to state interests—creates permissive effects that in practice can bring war back to a statist conception where the “strong may do as they will” as long as they give the appearance of good faith negotiation with the rules. However, according to Hurd, this does not undercut law’s sovereignty because the justification undertaken, including by strong states, uses legal language and the legal process. Here, the sovereignty of law is not in international law’s ability to [*5] constrain actors, but in the ubiquity of legal and quasi-legal justifications to which states turn for legitimacy. Law is sovereign because it has become a necessary part of international political discourse. The need to justify one’s actions in terms of legality, then, meets Hurd’s criteria for law’s sovereignty even when states are acting in blatant self-interests and only paying lip service to laws. The core of Hurd’s theory is that law may not constrain as it intended, but violating the spirit of the law is not enough to disempower the rule of law. Further, Hurd’s theory accepts the differences between international and domestic law, and it contends that international law cannot be expected to function in the same way as domestic law (e.g., lack of enforcement, differing treaty obligations).

BEYOND MARRIAGE: CONTINUING BATTLES FOR LGBT RIGHTS

Vol. 28 No 1 (February 2018) pp. 1-3

BEYOND MARRIAGE: CONTINUING BATTLES FOR LGBT RIGHTS, by Susan Gluck Mezey. Lanham, MD: Rowman & Littlefield, 2017. 320pp. Cloth: $70.00. ISBN: 978-1-4422-4862-5. Paper: $35.00. ISBN: 978-1-4422-4864-9.

Reviewed by Brian DiSarro, Department of Political Science, Sacramento State University. Email: disarrob@csus.edu.

Susan Gluck Mezey’s latest work, BEYOND MARRIAGE: CONTINUING BATTLES FOR LGBT RIGHTS, represents the continuation of her scholarship at the nexus of judicial politics, constitutional law, and the LGBTQ rights movement. Previously the author of QUEERS IN COURT: GAY RIGHTS LAW AND PUBLIC POLICY (2007) and GAY FAMILIES AND THE COURTS: THE QUEST FOR EQUAL RIGHTS (2009), BEYOND MARRIAGE traces the history of contemporary legal battles for LGBTQ rights, orients the reader to the present state of the law, and looks ahead to the future of the movement in light of the election of President Trump and Vice President Pence.

Written using a narrative style and historical-legal framework, the book is richly sourced. Mezey organizes the book thematically, with each chapter focusing on a specific policy area: employment discrimination, transgender rights, marriage equality, continuing struggles (mostly focusing on state laws exempting religious institutions and business owners from anti-discrimination laws), and global perspectives (focusing chiefly on Canada, South Africa, and the European Union).

BEYOND MARRIAGE is a major contribution to the field for a number of reasons. First, it provides an excellent snapshot of where we are at this unique point in time, with same-sex marriage legal nationwide but with much work still to be done. Post-OBERGEFELL, issues surrounding LGBTQ rights seemed to fade from the national consciousness. Correspondingly, much of the energy of the LGBTQ rights movement seemed to dissipate, and some began to talk of a “post-gay” era (On a personal note, I began to open my LGBTQ Politics courses with a justification for why the subject retained its timeliness and political relevance.). Mezey’s book clearly illustrates that the LGBTQ rights movement did not end in 2015, but rather transformed. With the lack of federal legislation to protect gays and lesbians from discrimination, statewide battles over transgender “bathroom bills”, and the Supreme Court set to hear a case pitting a religious baker against an engaged same-sex couple, these questions have never been more relevant.

Second, the work also exposes how deeply dependent recent LGBTQ legal victories have been on both sympathetic judiciaries and friendly presidential administrations. Throughout the book, but especially in sections that discuss recent battles over transgender rights, the Equal Employment Opportunity Commission, Department of Justice, and Department of Education have played a leading role in trying to ensure fair treatment for transgender and gender nonconforming individuals in both workplaces and schools. As Mezey discusses in her conclusion, these stances are likely to change (or have changed already) under the Trump administration; a troubling thought for those who favor LGBTQ equality. Moreover, through her detailed discussions of the ROMER, LAWRENCE, WINDSOR, and OBERGEFELL decisions, Mezey shows the Supreme Court to be a key ally in the fight for LGBTQ rights, despite its failure to explicitly raise sexual orientation to a higher level of judicial scrutiny. As we know, however, the composition of the Court could easily change over the next few years under President Trump.

HOW POLICY SHAPES POLITICS: RIGHTS, COURTS, LITIGATION, AND THE STRUGGLE OVER INJURY COMPENSATION

Vol. 27 No. 9 (December 2017) pp. 147-149

HOW POLICY SHAPES POLITICS: RIGHTS, COURTS, LITIGATION, AND THE STRUGGLE OVER INJURY COMPENSATION, by Jeb Barnes and Thomas F. Burke. New York: Oxford University Press, 2015. pp. 272. Cloth $41.95. ISBN: 978-0-19-975611-7.

Reviewed by Herbert M. Kritzer, University of Minnesota Law School. Email: kritzer@umn.edu.

In HOW POLICY SHAPES POLITICS, Jeb Barnes and Thomas Burke extend work that one or the other, or both, have done on the politics surrounding disability, vaccine injury compensation, and asbestos litigation (Burke 2002, 1997; Barnes 2007, 2008, 2011; Barnes and Burke 2012). Their specific goal is to understand how the politics concerning a specific policy varies depending on whether the policy is structured around what Robert Kagan (1991, 2001) labeled adversarial legalism or bureaucratic legalism. That is, they want to “assess how the design of public policy—around courts and litigation on one hand, or through agency implementation on the other—shapes politics” (p. 2). They choose to focus specifically on policies dealing with injury compensation because that area “includes a vast array of policies of diverse design, some based on litigation, others on regulation and social insurance” (p. 4). Social security disability insurance (SSDI), the vaccine injury compensation (VIC) program, and compensation for asbestos-related injury (ARI) represent a range of program design that allows them to assess the impact of design on the politics surrounding specific choices in design.

To frame their analysis, Barnes and Burke advance one general hypothesis and several subsidiary hypotheses. The primary hypothesis is that selecting a litigation model over a bureaucratic model leads to the individualization of conflict and “generates a more divisive, fractious politics” (p. 5). More specifically, they consider “four serious charges against adversarial legalism: (1) it crowds out other forms of political action, especially lobbying for legislative change, (2) it is particularly ‘sticky’ and path-dependent, potentially locking governments into bad policies, (3) it creates polarizing backlashes, and (4) it individualizes interests, thus undermining social solidarity” (p. 15). To test these hypotheses, the authors conduct a general analysis of congressional hearings dealing with injury compensation and then report in-depth studies of the politics surrounding each of their three cases. The analysis of congressional hearing is contained in one chapter with in-depth analyses of the case studies, which each receive its own chapter. Based on their analyses across these four chapters, they find solid support only for the last of four “charges.”

Chapter 2 assesses whether congressional hearings differ depending on the type of legalism upon which an injury policy is based. Specifically, are there differences in the kinds of the witnesses and/or the diversity of witnesses testifying at hearings concerning the programs employing the two types of legalism and are there differences in the amount of conflict reflected in the hearings? For this analysis, the authors do not limit themselves to the three areas that are the focus of their case studies; rather they include all or most policy areas dealing with injury compensation. They group witnesses into five categories: business interests, claimants and their representatives, governmental officials, experts, and others. The analysis employs information on hearings covering a 40-year period starting in 1971. The authors apply a variety of methods and show that there are differences in the number and variety of witnesses. Moreover, they find more conflict at hearings involving programs operating in the style of adversarial legalism compared to hearings focused on programs operating employing bureaucratic legalism. These differences hold up across administrations and after introducing various control variables. It would have been helpful if the authors had included a table listing all the programs that formed the basis of the analysis along with how each was classified (bureaucratic or adversarial) [*148] and the number of hearings for each of programs.

Chapters 3, 4, and 5 are the case studies of the political debates surrounding the three systems for injury compensation programs. In each of these chapters, the authors trace the history of the political conflict surrounding the system under discussion. For SSDI and the VIC their discussions include debates over initiating the program and how politics have played out since the program began operating. SSDI is their example of bureaucratic legalism, ARI is the example of adversarial legalism, and the VIC is a system created to move from an adversarial system to a bureaucratic system. In the chapter on SSDI, the authors also provide a discussion of the Americans with Disabilities Act (ADA) as an additional contrasting case; although ADA is not an injury compensation program, it represents a very different approach to disability and creates some tension with SSDI. The discussions of SSDI and VIC start with the politics surrounding the programs’ creation, and then describe how the various interests interacted and the compromises that were needed to pass the legislation creating the programs. The analysis of those two programs proceeds to trace the issues that arose in efforts to expand each of the programs, to cutback the programs by changing who was covered, and to deal with other challenges that arose once the programs were in operation (e.g., the alleged link between thimerosal, at one time used as a preservative in some vaccines, and autism). The chapter on ARI traces both the unsuccessful efforts to fashion legislative reforms that would have created a more bureaucratic approach for those claiming ARI, and describes the development through the courts, particularly the bankruptcy courts, of bureaucratic-like programs in the forms of various trusts created to pay compensation. All three chapters draw on a combination or primary research and secondary sources, they are highly detailed, and directed at assessing the authors’ hypotheses; each chapter ends with an assessment of what the chapter’s analysis means for those hypotheses.

LIBERTY & UNION: THE CIVIL WAR ERA AND AMERICAN CONSTITUTIONALISM

Vol. 27 No. 9 (December 2017) pp. 144-146

LIBERTY & UNION: THE CIVIL WAR ERA AND AMERICAN CONSTITUTIONALISM, by Timothy S. Huebner. Lawrence, Kansas: The University Press of Kansas, 2016. 544pp. Cloth $34.95, ISBN: 978-0-7006-2269-6. Paper $26.95, ISBN: 978-0-7006-2486-7.

Reviewed by Stephen B. Presser, Northwestern Pritzker School of Law. E-mail: s-presser@law.northwestern.edu.

Let’s get the preliminaries out of the way. LIBERTY & UNION is one of the best one-volume histories of the Civil War era we are likely to get. It is beautifully and yet crisply written, it comprehensively covers events from before the Civil War’s beginning in 1861, and through Reconstruction until the controversial election of Rutherford Hayes in 1876. It is a remarkably objective analysis of politics and law during that period, and really, is three books rolled into one fairly tight 450-page package of text. These three books are (1) a narrative history of the Civil War years, complete with coverage of the major battles and generals, (2) an analysis of Constitutional theory as it developed before and after the War in both North and South, and (3) a discussion of the emergent political activity of African Americans as they contributed to the War, Reconstruction, Abolition and the beginnings of racial equality in this country. All three are splendid stories, splendidly told. If the book doesn’t garner much praise and many prizes I will be surprised, indeed. As an informative volume for beginners the book is without peer, and even for scholars deep into the arguments Huebner discusses, there is likely to be much on offer.

At first blush, it might appear that Huebner has, essentially, affirmed what now passes for politically correct conventional wisdom on the period – to wit, that Lincoln was a heroic martyr to the cause of freedom, and that the Radical Republicans who passed the Reconstruction Amendments and supervised military rule over a defeated South, were similarly heroic in their defense of the rights of African Americans. Huebner’s sympathies do often seem to lie with the Lincoln and the Radicals, and he appears to regard the abolition of slavery, and the crushing of the southern secession by force of arms to have amounted to a second American Revolution, and a noble one at that. But Huebner is too good a historian for his work to be characterized so simply. He quite sympathetically presents the arguments of the South, even the Southern slaveholders, and he builds a powerful case for the original 1787 Federal Constitution to have supported not only the ownership of human beings by others (this is pretty obvious even from the text of the document, though the word “slavery,” of course, is never mentioned), but also to have forbidden the centralizing actions, and the ignoring of the Civil Rights of Southerners and Lincoln critics, in which the Radical Republicans engaged.

Indeed, it is difficult, if not impossible, to come away from Huebner’s book and not understand that this “Revolution” of which he speaks was a profound alteration in the Constitution, not only by the Reconstruction Amendments, but by a Civil War and horrific carnage that might conceivably have been avoided. While he doesn’t dwell on it, I think Huebner raises the question whether the approximately 700,000 lives lost in the conflict were worth the cost, or whether slavery could have been ended by peaceful means, as it was in most of the other Western nations in which it existed. There seems to be a hint that Huebner believes only war could have ended the practice, but given the fact that even the Southerners were eventually prepared to emancipate their own slaves to draft the into the war effort, it does appear that there were things more important to the South than the preservation of their “peculiar institution,” as Southern defenders of the “lost cause,” were wont to argue following the war. Indeed, while Huebner appears to conclude that by the end of the War it was clearly about the abolition of slavery, when the war began, and after, there were plenty of Southerners who argued that actually it was about State sovereignty, the [*145] appropriate interpretation of the Declaration of Independence, and the limited nature of the Federal government under the Constitution.

There is no question that slavery was an evil that needed to be eradicated, and there is no question that Lincoln and the Republicans managed to do just that, and thus our custom of venerating them. There was a time, however, when the defenders of the South, Robert E. Lee in particular, were thought to be equally noble (though current events seem to suggest that era is fading, and fading fast). Huebner, then, in his intellectual honesty and his comprehensive coverage of what was said and written by partisans North and South, offers insight that renders the usual current analysis a bit too facile. Those of us fairly long in the tooth can remember late in the nineteen-fifties when the Radical Republicans were still regarded as fanatics, and when there was a belief that had Lincoln really wanted to, he could have let the Southern states secede. We could go further, and remember that while memories are now eroding, there was a time when in the middle states the conflict was referred to (as Huebner does) as a “Civil War” or the “War Between the States,” but there were those in New England, for example, who referred to it as “The Rebellion,” and those in the deep South who conceived of it as “The War of Northern Aggression,” and, in our post-modern age, we can understand that there was truth in each of these characterizations.

ACCIDENTAL ACTIVISTS: MARK PHARRIS, VIC HOLMES AND THEIR FIGHT FOR MARRIAGE EQUALITY IN TEXAS

Vol. 27 No. 9 (December 2017) pp. 141-143

ACCIDENTAL ACTIVISTS: MARK PHARRIS, VIC HOLMES AND THEIR FIGHT FOR MARRIAGE EQUALITY IN TEXAS, by David Collins. Denton, Texas: University of North Texas Press, 2017. 480pp. Hardcover $29.95. ISBN: 9781574416923.

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

David Collins offers a spellbinding book on marriage equality. At its root, this is a great American love story. The author chronicles a love story of a former student and longtime friend. This book, not only tells the story of two men who fall in love, in Texas but also who decide to fight a legal battle for their right to wed. It is here that the book shines, and in a way that readers of the LAW AND POLITICS BOOK REVIEW may consider using the book for their classes including Judicial Process.

Layered within the book is an exceptionally well-told account of DELEON V. PERRY (2014) (and DELEON V. ABBOTT when Texas changed governors, the case that altered the history of one of the most conservative states, and impacted the more famous OBERGEFELL V. HODGES (2015) decision. A great portion of this book informs the reader about legal realities that students need to know, including the decision by one of Texas’s largest legal firms to argue the case pro bono; the strategic selection of codefendants; roles of amicus briefs; impact of oral arguments; impact of precedent; and venue selection.

An additional strength of this book is the how the personal impacts the legal, and the legal impacts the personal. Two examples suffice to make this point. First, in a great irony, Mr. Pharris was close friends with Greg Abbott, during their time as law students at Vanderbilt. Abbott went on to serve as Texas Attorney General and Governor, and in both capacities was a legal opponent of Pharris and Holmes. And, a long friendship was ended. Secondly, using posts from Mr. Pharris’s Facebook account and the comments that followed, Collins adds rich description to the personal elation and toil that a long time, contentious lawsuit can play on the parties to the case.
As to be expected when reading a book authored by one of the subject’s friends, the tone of the book is one-sided (more on this below). With that being said, there are two particular strengths of this book. First, there is a very informative discussion about the history of the struggle for legal recognition of gay marriage. Second, the legal discussions of the DELEON case that Pharris and Holmes were codefendants of are clear, informative, and interesting.

I will admit to my ignorance of much of the rich history of the struggle for gay marriage rights in the United States. Collins ably walks the reader through the foundations of the issue (pp. 72-87), discussing BAKER V. NELSON (1972), a case dismissed by the U.S. Supreme Court for lack its perceived non-justiciability, in which Jack Baker and Mike McConnell sued for the right to marry in Minnesota. Though the case failed, they were able to marry in a neighboring county, and inspired a movement. Several gay couples tried to marry in states including Texas, Colorado and Hawai’i. In the Colorado case, Richard Adams and Anthony Sullivan, an Australian native, were denied marriage rights by the Immigration and Naturalization Service. The message from INS is heart wrenching, because the rights of these men were denied. According to the official letter from INS, Adams and Sullivan “failed to establish that a bona fide marital relationship can exist between two faggots” (p. 73).

VACCINE COURT: THE LAW AND POLITICS OF INJURY

Vol. 27 No. 9 (December 2017) pp. 137-140

VACCINE COURT: THE LAW AND POLITICS OF INJURY, by Anna Kirkland. New York: New York University Press, 2016. 288pp. Cloth $40.00. ISBN: 978-1-4798-7693-8.

Reviewed by Paul Nolette, Department of Political Science, Marquette University. Email: paul.nolette@marquette.edu.

Anna Kirkland’s new book examines a relatively little-known yet fascinating specialized court lodged within the United States Court of Federal Claims. The Office of Special Masters – most frequently referred to as the “vaccine court” – was established by the National Childhood Vaccine Injury Act of 1986. This act was a response to a flood of product liability lawsuits that threatened to drive drug companies out of vaccine manufacturing, thereby complicating mandatory vaccination programs across the country. As they have in other areas, such as with the September 11 Victim Compensation Fund, Congress created a system to compensate those who had suffered certain specialized injuries. The vaccine court has served as the mandated first stop for those making vaccine-injury related claims, as the system funnels such cases away from the regular court system and towards this specialized court.

The central actor in Kirkland’s study is itself a worthy object of attention as one of a growing number of specialized courts in the American judicial landscape (Baum 2011). In Kirkland’s hands, however, the work is not simply a study of the operations of an obscure but nevertheless significant judicial body. It is also a study of how law and social movements interact in legal contests aiming to resolve competing claims drawn from scientific expertise and popular beliefs. Drawing from a wealth of public documents and debates related to the vaccine court, Kirkland illuminates the court’s role in creating knowledge about vaccine injuries through the resolution of individualized cases. Her approach operates within the tradition of law and society, and builds off Martin Shapiro’s classic insights about courts’ role in upholding the social order (Shapiro 1981).

Throughout the book, Kirkland provides a thorough analysis of the workings of the vaccine court. As she describes in Chapter 2, the court operates differently than the typical tort process. For one, the court operates under its own procedural rules rather than the Federal Rules of Civil Procedure. Vaccine court cases are not subject to the stricter evidentiary standards that the Supreme Court required of federal civil lawsuits in DAUBERT V. MERRELL DOW PHARMACEUTICALS (1993); instead, special masters are tasked to consider “all relevant and reliable evidence governed by principles of fundamental fairness to both parties” (p. 121). The vaccine court is also unusual in that the attorneys for losing litigants routinely get their court costs paid, thereby providing additional incentives for attorneys to represent claimants.

The vaccine court also began by operating more bureaucratically, in contrast to the adversarial nature of tort litigation. The court initially resolved most cases with reference to a generous Vaccine Injury Table providing fast-tracked compensation for officially recognized injuries caused by vaccines. This system operated bureaucratically because claimants did not need to demonstrate that vaccines definitively caused their injuries but merely that their injuries might have been caused by vaccines. This sidestepped the central debate over vaccine harms, which Kirkland suggests was consonant with the lack of scientific consensus over vaccine injuries at the time of the court’s creation. However, when in the 1990s the scientific consensus shifted towards rejection of links between vaccines and injuries, the court shifted along with it. Fewer injuries were compensated through the fast-track Vaccine Injury Table and more claims became “off-table” claims contested in an adversarial manner.