HANDS UP, DON’T SHOOT: WHY THE PROTESTS IN FERGUSON AND BALTIMORE MATTER, AND HOW THEY CHANGED AMERICA

Vol. 30 No. 5 (June 2020) pp. 81-85

HANDS UP, DON’T SHOOT: WHY THE PROTESTS IN FERGUSON AND BALTIMORE MATTER, AND HOW THEY CHANGED AMERICA, by Jennifer E. Cobbina. New York: New York University Press, 2019. 244 pp. Cloth $89.00. ISBN: 9781479818563. 288 pp. Paper $25.00. ISBN: 9781479874415.

Reviewed by Anna Gunderson, Department of Political Science, Louisiana State University. Email: agunderson@lsu.edu.

HANDS UP, DON’T SHOOT: WHY THE PROTESTS IN FERGUSON AND BALTIMORE MATTER, AND HOW THEY CHANGED AMERICA is an important addition to our understanding of political science, social movements, and police brutality. Jennifer E. Cobbina builds a rich narrative on the causes and consequences of police brutality, relying on a series of interviews conducted in Ferguson, Missouri, and Baltimore, Maryland, in the aftermath of the deaths of Michael Brown and Freddie Gray, respectively. Her careful attention to detail and use of rich qualitative evidence provides a wide scope for examining police brutality and subsequent protests, but she casts perhaps too wide a net to fully address each of the ambitious questions Cobbina seeks to answer.

Cobbina begins the book with a retelling of the facts of the Brown and Gray cases, both young Black males who died after interactions with the police; in Ferguson, Brown was in an officer-involved shooting with a White police officer, and in Baltimore Gray died as a result of officer use of force. These events ignited a firestorm of protests and public attention to police brutality in these two cities and sparked a nationwide conversation about the role that race and racism play in officer use of force. This is the context which serves as inspiration and subject of Cobbina’s book. She uses these two events to pose a series of questions: how does race condition civilian interactions with the police (and, with Black police officers specifically)? How did civilians get involved in the subsequent protest events after Brown and Gray’s deaths and how did the repressive police actions during the protests influence the future likelihood of participants protesting again? Finally, why did the events in Ferguson and Baltimore capture national attention? This ambitious book seeks to provide at least a tentative answer to all of these questions using powerful qualitative work and theoretical rigor on race, policing, and protest. [*82]

Chapter 1 details the racialized history of law enforcement and how policing originated to support the institution of slavery and the subjugation of Black Americans. After slavery was outlawed, Black Codes – criminal laws that created new offenses like “loitering” and “vagrancy” to target free Blacks and imprison them – took its place. These Black Codes soon faded, replaced with Jim Crow laws that codified different rules for Blacks and Whites through the mid-twentieth century. The Civil Rights movement sought to eliminate these laws and fight for social justice, though that movement was met with repressive policing tactics in response. Cobbina argues that this legacy of slavery and dominance shapes Blacks’ contemporary attitudes about the police and the criminal justice system. She then details the myriad evidence pointing to disparate outcomes for Whites and Blacks in police activities like traffic stops and police surveillance. For example, “many police use race – Blackness – as an indicator of criminal propensities” (p. 23). These inequities are even further compounded by de facto racial segregation, resulting in lower perceptions of police legitimacy and vast differences in public opinion about policing across racial categories.

It is in this context – in which Blacks experience disproportionate police attention – that Chapter 2 begins. This chapter details the personal experiences of those stopped by the police and the idea that Black Americans are “guilty until proven innocent.” Cobbina introduces the qualitative interviews used in the remainder of the book: a series of in-depth interviews with 100 Ferguson residents and 92 Baltimore residents in the aftermath of Brown and Gray’s deaths. In analyzing these interviews, she finds that most subjects had negative experiences with the police. These negative experiences centered around common police actions – like aggressive policing, stop-and-frisk procedures, and police discourtesy – and Black participants were more likely to report negative experiences than White respondents in both cities. Some also reported positive interactions with the police as participants reported police are “just trying to do [their] job[s]” (p. 51). Overall, this chapter suggests that White interviewees were afforded respect by the police, whereas Black interviewees were treated with suspicion and presumption of wrongdoing.

Chapter 3 considers how the integration of Black police officers specifically influences citizens’ evaluations of the police. Cobbina found three, sometimes conflicting, themes in her qualitative work: “Black officers were viewed as courteous and understanding; Black police were depicted as aggressive in nature; and Black law enforcement was described as facing occupational socialization on the job” (p. 57). Though some respondents mentioned how Black [*83] police officers may be more likely to understand the local Black community and culture, others thought Black police officers were even more harsh than White officers in an effort to conform to police culture and seek acceptance from their colleagues. Cobbina argues that these inconsistencies highlight how simply increasing diversity in police forces does not necessarily address structural problems in our institutions or neighborhoods.

SCOTUS 2018: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT and SCOTUS 2019: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT

Vol. 30 No. 5 (June 2020) pp. 74-80

SCOTUS 2018: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT, by David Klein and Morgan Marietta (eds). Cham: Switzerland: Palgrave Macmillan, 2019. 146pp. ISBN: 978-3-030-11254-7. ISBN: 978-3-030-11255-4 (eBook).

SCOTUS 2019: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT, by David Klein and Morgan Marietta (eds). Cham: Switzerland: Palgrave Macmillan, 2020. 158pp. ISBN: 978-3-030-29955-2. ISBN: 978-3-030-129956-9 (eBook).


Reviewed by Alison Merrill, Department of Political Science, Susquehanna University. Email: merrill@susqu.edu.

Throughout history, the United States Supreme Court has served as a major player in shaping the character and direction of public policy through the decisions it hands down. As an institution, however, the implications and impact of the Court's decisions are often overlooked or not understood by the majority of citizens. This lack of understanding can often be attributed to a lack of clear, immediate discussion of the rulings and their meanings. SCOTUS 2018 and SCOTUS 2019 are the first two installments in a new series aimed at increasing the understanding of recent Supreme Court decisions and promoting discussion on the topic. These volumes dedicate single chapters to the major cases from each term, written by noted scholars of both law and American politics. To aid in the clarity of understanding the rulings and their meanings, each chapter follows the same general outline; specifically, the chapters are organized by first the details of the ruling, then what it means for legal debate, and finally what the implications of the ruling are for public policy or partisan politics (p. vi). By organizing the discussion of the rulings in a systematic manner, the editors aim to provide a useful and meaningful addition to the public discussion of the Constitution and the Court. The result is a volume that can be understood by anyone interested in learning more about this institution and its impact on the development of the American political system.

Chapter 1 of each volume begins with an introduction to each term. This chapter identifies the contentious questions that the Court addressed (which are then covered in more detail in later chapters) and neatly summarizes each case in the volume in a single sentence. Perhaps what is most useful is that following the summary of the cases, Marietta then groups the cases by issue area or topic (e.g., [*75] dignity, social facts, criminal law, separation of powers, etc.). In these sections, he reviews the main question raised in each case that falls under these topic headings and proceeds to discuss not only how the Court reached their decision, but also the major implications and big takeaways from these decisions and how they fall into a broader understanding of the development of American jurisprudence. Further, Marietta discusses the impact of judicial ideology on the outcome of the case, and briefly touches on how certain justices voted and the importance of vote breakdowns in these cases. These first chapters in each volume are crucial in setting the stage for why the cases included in the volume are important for understanding the significance and impact of the Supreme Court in American politics and the daily lives of Americans.

SCOTUS 2018 covers issues concerning digital privacy, partisan gerrymandering, voting rights, public sector unions and coerced speech, gay right versus religious liberty, internet taxation, and the four corners doctrine and presidential power. The editors note that while these are all important questions which affect the daily lives of Americans in complex and varied ways, perhaps the most important events in this term were the arrival of Justice Gorsuch, the retirement of Justice Kennedy, and the dark shadow cast by the contentious confirmation hearings for Brett Kavanaugh. Despite the increased attention to personnel changes on the Court in 2018, the Court also dealt with major cases focusing on social facts and the “prevailing circumstances the Court must recognize in order to apply constitutional principles, especially when those facts are in contention” (p. 1).

For these reasons, the discussions surrounding social facts stood out as particularly strong in this volume, which include Chapters 2, 3, and 8. In Chapter 2, David Klein reviews CARPENTER V. UNITED STATES (2018) which raised the question of how easy it should be for the government to access information stored and transmitted (often unknowingly) from cell phones when it suspects someone of criminal activity. Here, Klein points out that the Court's decision rested heavily on the reasonable expectation of privacy test created in KATZ V. UNITED STATES (1967), and that enough observations taken from an individual's cell phone to determine location can erode that person's reasonable expectation of privacy, even when in a public place. Therefore, if authorities want access to cell location information, a warrant is typically required. This is an example of the majority acknowledging the pervasiveness of cell phone use in modern society. As Klein points out, however, it actually raises more questions about which technological intrusions [*76] are permissible and which go too far that the Court will have to address in future cases.

NO PROPERTY IN MAN: SLAVERY AND ANTISLAVERY AT THE NATION’S FOUNDING

Vol. 30 No. 5 (June 2020) pp. 71-73

NO PROPERTY IN MAN: SLAVERY AND ANTISLAVERY AT THE NATION’S FOUNDING, by Sean Wilentz. Cambridge, MA: Harvard University Press, 2018. 350pp. Hardcover $26.95 ISBN: 9780674972223.

Reviewed by Stephen Lansing, Department of Political Science, State University of New York at Albany. Email: sjlansing@albany.edu.

In his new work, NO PROPERTY IN MAN: SLAVERY AND ANTISLAVERY AT THE NATION’S FOUNDING, political historian Sean Wilentz presents a new and potentially controversial interpretation of the constitutional debate over slavery during the founding era of the United States. While acknowledging the pivotal role slavery played during the development of the U.S. Constitution, Wilentz calls for a reevaluation of this subject and asserts that the issue may be as one-sided as historians have previously believed. He argues that the focus on the Constitution as an “entirely proslavery document” misconstrues subtle actions taken by certain constitutional framers to instill antislavery sentiments in the founding document. According to Wilentz, while antislavery forces at the Constitutional Convention did make concessions to slaveholding powers that impeded future abolitionist efforts, they also made strategic distinctions that would open the door for future abolitionists to fight slavery in the United States. The book focuses on the antislavery framers’ refusal to explicitly acknowledge “property in man” which was a key theoretical argument in favor of maintaining slavery. Wilentz believes that this important technical distinction created a paradox at the heart of the American Constitution.

Wilentz situates his argument in the larger political-historical discussion regarding the role of private property in American Constitutional government. He advances the idea that defining what constitutes property was as essential to the development of the U.S. Constitution as the belief in the sanctity of private property in abstraction. It is through this lens that he aims to reexamine the 1787 debates regarding the place of slavery in the newly formed constitutional government and its long-term implications. He presents his argument in a chronological fashion, giving particular focus to antislavery attempts to discredit the concept of human beings being considered property. From this starting point, he relays the proslavery responses to this belief and presents the dialogue that occurred around the issue. [*72]

NO PROPERTY IN MAN begins its story prior to the Constitutional Convention of 1787, discussing the birth of antislavery politics and how the concept of “property in man” became central to both pro- and antislavery arguments. Wilentz argues that American antislavery sentiments were a revolutionary occurrence in the context of world history and that these ideas centered on the refusal to promote the commodification of human beings. He chronicles the development of several early abolitionist societies and situates them in the regional dialogue that took place around the fight to either preserve or abolish slavery. From these early rumblings of antislavery sentiment, he then turns to the Constitutional Convention itself. Relying heavily on the personal and private notes of James Madison and other delegates, Wilentz reconstructs the arguments regarding slavery that were expressed. Leading naturally from the convention he follows these debates through the drafting process to ratification and beyond. Throughout this drafting and ratification discussion, Wilentz highlights the tactical negotiations between proslavery and antislavery forces. He stresses that every decision made by early abolitionists was intended to halt slavery’s codification in national law and stifle proslavery attempts to sanction human bondage as an unalterable federal institution (while simultaneously making large concessions to proslavery forces). Finally, the book extends beyond the founding to the politics of slavery in antebellum American and how they played out over the next sixty years, inevitably leading to the American Civil War.

While Wilentz’s analysis does present an interesting new way to understand the founding debates regarding slavery, there do seem to be some limitations to his analysis. First, he attempts to infer particular meaning from primary notes and documents taken from the framers where such interpretation may not be warranted. Similar to many other constitutional analyses, the available firsthand evidence on meaning and intent regarding the U.S. Constitution is particularly sparse. Wilentz, however, presents several examples of delegates promoting antislavery beliefs or sentiments that could not explicitly be verified. While this limitation may detract from some individual points made in the book regarding committee discussions or closed votes, it does not detract from the overall argument which is bolstered by other publically available accounts.

STORIES FROM TRAILBLAZING WOMEN LAWYERS: LIVES IN THE LAW

Vol. 30 No. 4 (May 2020) pp. 66-70

STORIES FROM TRAILBLAZING WOMEN LAWYERS: LIVES IN THE LAW by Jill Norgren. New York: New York University Press, 2018. 304 pp. Paper $22.00. ISBN: 978-1479865963.

Reviewed by Julie C. Suk, Department of Sociology, Political Science, and Liberal Studies, The Graduate Center, City University of New York. Email: jsuk@gc.cuny.edu.

Jill Norgren’s STORIES FROM TRAILBLAZING WOMEN LAWYERS: LIVES IN THE LAW is an excellent biographical resource for a subject that should be central to the study of law and feminism: the history of women in the legal profession. Based on one hundred oral histories taken by the American Bar Association of outstanding female lawyers, Norgren tells the stories of women’s struggles and triumphs in changing a profession that has the power to change the status of women in American society.

The exclusion of women from the legal profession was a cornerstone of judge-made constitutional equality in the nineteenth century. In one of the first cases interpreting the Fourteenth Amendment to the U.S. Constitution, adopted after the Civil War to guarantee equal citizenship to the formerly enslaved, the Supreme Court held that a state could deny a married woman a license to practice law, even after she passed the bar exam, on the ground that the domestic sphere was the domain and function of womanhood. In BRADWELL V. ILLINOIS (1873), the Supreme Court reasoned that since married women had no legal personhood independent of their husbands, and thus could not enter into their own contracts or even own their own earnings, the state of Illinois was permitted to stop women from becoming lawyers. This “separate spheres” tradition, as it is known, justified and legitimized women’s exclusion from the legal profession. It also justified governmental policies of unequal treatment of women in many other opportunities to participate in economic and political life, including voting (MINOR V. HAPPERSETT, 1875), bartending (GOESAERT V. CLEARY, 1948), military service (ROSTKER V. GOLDBERG, 1981), and jury service (HOYT V. FLORIDA, 1961).

Nonetheless, at the turn of the century, some states began to admit women as members of the bar. After this pioneering generation of the first women who attended law school and became lawyers (the subject of Norgren’s wonderful earlier book, REBELS AT THE BAR) the “trailblazers” of the twentieth century began to integrate [*67] themselves into law firms, judgeships, government, and nonprofit organizations. Many of these stories reveal the crucial role played by men – husbands, fathers, professors, and mentors – in opening up paths for almost every trailblazer; it was not outstanding talent alone, but a man willing to put his weight behind the woman who possessed it, that made trailblazing a real possibility. But the idea that every woman with a law degree was taking the place of a breadwinning male was bandied about in law schools and in law firms.

Norgren tells triumphant stories of some trailblazers who could prove their individual invincible talents to men who could be convinced to loosen their stranglehold on incumbent power in the face of unshakeable talent. Shirley Adelson Siegel, for example, a 1941 graduate of Yale Law School, went on to be the solicitor general of the state of New York. After she was passed over by 40 firms, Yale professor Arthur Corbin (and scholarly giant of contract law) wrote personal letters to his friends at law firms. He described Siegel as “one of our best in industry, in mental power, and in personality,” and wrote, “Anything you can do for her will be a special favor to me” (p. 79). Siegel got a job at the firm of Proskauer Rose and Paskus which subsequently opened many doors for her.

But men like Corbin were few and far between. Norgren presents vivid stories of the discrimination women faced. Yet many were still able to become self-made women in the profession. Shirley Hufstedler, who graduated fifth in the Stanford Law School Class of 1949 (tied with Warren Christopher), got the recommendation of Stanford’s Dean – for a job as a legal secretary. Meanwhile, the same dean recommended Warren Christopher for a Supreme Court clerkship. Without a dean or a professor willing to stick his neck out for her, Hufstedtler had to find and seize opportunities for herself after she turned down the legal secretary job. She became a solo practitioner, performing legal research and writing briefs for many lawyers. Proving herself through the sheer force of her excellent work product, she eventually served as a consultant to the attorney general of California, who went on to become the governor. That governor, Pat Brown, appointed her to the state judiciary. Her work in that role made her a viable candidate years later for the federal appeals court for the Ninth Circuit. Hufstedtler became a federal appellate judge in 1968, and Secretary of Education under President Jimmy Carter in 1979 (pp. 75-77).

THE CODE OF CAPITAL: HOW THE LAW CREATES WEALTH AND INEQUALITY

Vol. 30 No. 4 (May 2020) pp. 62-65

THE CODE OF CAPITAL: HOW THE LAW CREATES WEALTH AND INEQUALITY, by Katharina Pistor. Princeton University Press. 2019. 316 pp. Hardcover $26.99. ISBN: 0691178976.

Reviewed by Basak Kus, Department of Government, Wesleyan University. Email: bkus@wesleyan.edu.

Katharina Pistor’s new book, THE CODE OF CAPITAL: HOW THE LAW CREATES WEALTH AND INEQUALITY, “tells the story of the legal coding of capital” (p. x). This is a story that is at once locally-specific and globally-relevant; historically-dependent and yet still evolving; and politically fraught as well as consequential—one that we surely must know more about if we are to get a better understanding of both the formation of wealth and its distribution.

In Pistor’s telling, the story unfolds in nine chapters. In these chapters, the author masterfully tackles a number of big questions. The first question (discussed extensively in the first chapter) is theoretical: what is capital? Pistor argues, quite convincingly, that “capital is not a thing” but rather a legal construct (p.10). An asset (which may be tangible or intangible) turns into capital when the legal code bestows certain qualities to it. The nature of the coding varies over time and space, affecting assets and the social relations that take shape around them. In conceptualizing capital as a legal quality, Pistor does not rebut the Marxian notion of capital as a social relation but instead attempts to show that the legal coding of capital is constitutive of that relation. Law, in this story is not a “sideshow;” it is the “very cloth from which capital is cut” (p.4).

What, then, are the qualities that law bestows on assets, turning them into capital, thus privileging their holders? Pistor discusses four key qualities: priority, durability, convertibility, and universality. Priority “ranks competing claims to the same assets;” durability “extends priority claims in time;” universality “extends them in space;” and convertibility gives asset owners the guarantee “to freely transfer an asset” (p.3 & p.13-15). If it is the case that “not all assets are equal,” that is precisely because they possess these specific legal attributes in different ways and to different degrees, and these differences confer on them different capacities of wealth creation (p. 5). In separate chapters of the book, Pistor shows how several legal modules (property, collateral, corporate, trust, bankruptcy, and contract law) have been used historically to code [*63] different types of assets (land, firms, debt, and knowhow) as capital. She accomplishes this by using illustrative cases ranging from land enclosures in the sixteenth century England to disputes between settlers and indigenous peoples; from the rise and fall of Lehman Brothers to patent wars over genetic testing.

The second question that Pistor’s book tackles is the changing composition of wealth –or the “metamorphoses of capital,” to use the words of Thomas Piketty’s (2014) concept. Piketty’s historical data shows that while agricultural land represented the major share of the total national wealth in Western Europe at the start of the eighteenth century, its share declined overtime as the value of housing, and industrial and financial assets increased. Pistor argues that the metamorphosis in question “goes hand in hand with grafting the code’s modules onto ever new assets but also, from time to time, stripping some assets of key legal modules” (p. 5). In other words, the legal privilege bestowed on particular groups of assets by the code changes over time, and this is critical to understanding both the decline of land as wealth and the rise of financial assets.

If the code is essential to the making of capital, then the masters of the code are the protagonists of this story. This is the third question that the book sheds light on and Pistor dedicates a full chapter to it: the professional actors that have the expertise to tackle the code in ways that would benefit particular asset holders, thereby shaping “the creation and distribution of wealth in society” (p. 159).

THE POLITICAL CONSTITUTION: THE CASE AGAINST JUDICIAL SUPREMACY

Vol. 30 No. 4 (May 2020) pp. 58-61

THE POLITICAL CONSTITUTION: THE CASE AGAINST JUDICIAL SUPREMACY, by Greg Weiner. Lawrence: University Press of Kansas, 2019, 224pp. Cloth: $29.95 ISBN: 9780700628377.

Reviewed by Gary E. Bugh, Department of Political Science, Texas A&M University-Texarkana. Email: gbugh@tamut.edu.


In THE POLITICAL CONSTITUTION: THE CASE AGAINST JUDICIAL SUPREMACY, Greg Weiner challenges the view that only the courts may interpret the Constitution. He argues that the people, their elected representatives, and each branch of government should also exercise judicial review. With a focus on James Madison, Weiner shows that the founders expected several actors to participate in constitutional interpretation. He also appeals to the founders to build a republican theory.

In Weiner’s theory of “republican constitutionalism,” the people are a community whose representatives deliberate and decide constitutional meaning. In a community, there is no separate, autonomous actor monopolizing judicial review. Weiner asserts that “the natural right for the founders … is self-government by a political community” (p. 142). He also emphasizes Madison’s appeal to “the whole community” during his 1789 defense of a bill of rights (p. 70). In the United States, there should be “room for the community to act on values as a community rather than as a collection of individuals” (p. 124).

In this republican system, the community works though elected representatives. This is why, Weiner explains, Madison’s defense of federal representatives deciding for the people is republican. Madison’s assertion in Federalist No. 10 that representation would serve “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens” describes how the majority undertakes deliberative representation (p. 7).

Weiner explains that “what I shall call ‘the politics of obligation’ … anchors republican constitutionalism” (p. 33). This “normative basis” means that “[w]e owe a political debt to our forebears and descendants, and political activity fulfills our natures” (p. 58). Reviewing thinkers ranging from Aristotle to Burke, Weiner lands on Madison as the inheritor of this idea. In a 1790 letter, Madison stated that “[t]he improvements made by the dead form a charge against the living who take the benefit of them” (p. 32). A judiciary [*59] possessing sole exercise of constitutional review supplants citizen participation, breaking the community’s links with its traditions. The politics of obligation therefore embraces the questioning of government authorities, including judges.

Constitutional support of federalism makes the politics of obligation possible, according to Weiner. For him, “[t]he Constitution … preserves a space for a politics of interdependence and obligation” (p. 2). He would like to “revive a robust federalism that makes local political activity meaningful” (p. 17). Appealing to the “natural right” of communal self-rule, Weiner claims that “the community’s paramount right is to govern itself according to its best judgment and local customs” (p. 146). Therefore, “elected representatives from across the country … are better positioned than nine unelected judges to assess local conditions” (p. 172). Communities should use political means to resolve issues, not relegate them to the courts.