VALUE CHANGE IN THE SUPREME COURT OF CANADA

Vol. 27 No. 8 (October 2017) pp. 133-136

VALUE CHANGE IN THE SUPREME COURT OF CANADA, by Matthew E. Wetstein and C.L. Ostberg. Toronto: University of Toronto Press, 2017. 337 pp. $75.00. ISBN 978-4875-0139-6.

Reviewed by Susan W. Johnson, Department of Political Science, University of North Carolina at Greensboro. Email: swjohnso@uncg.edu.

What values do Canadians embrace and how do these values translate into policy choices and development of the law? VALUE CHANGE IN THE SUPREME COURT OF CANADA, to be certain, is a book about how legal outcomes are affected by justice ideology, interest group activity, and shifts in societal ideals and values in Canada. However, do not let the emphasis on Canada dissuade U.S. and other public law scholars from examining the book. There is something here for everyone, and public law scholars of all backgrounds will benefit from considering the theoretical explanation of value change in courts over time as a function of both judicial attitudes and societal shifts.

Interest in value change reflected through court decisions has grown dramatically in recent years. Unfortunately, most of the empirical research has been limited to U.S. courts. Matthew Wetstein and C.L. Ostberg’s new book provides an alternative to the near exclusive U.S. focus by examining the interactions of value change in Canadian society with Supreme Court decision- making to understand case outcomes as a function of both. The authors begin by introducing a value change theory, which explains why courts may move in the direction of postmaterialist values over time. Relying on Ronald Inglehart’s (1971, 1977, 1997; Inglehart, Nevitte, and Basanez 1996; Inglehart and Welzel 2005) theory of postmaterialist value change, Wetstein and Ostberg argue that value changes shift from materialist to postmaterialist in advanced industrialized countries, especially in the period after World War II, as society meets basic individual needs. In particular, Wetstein and Ostberg investigate why Canadian Supreme Court justices’ decisions change over time, and whether societal changes correspond with changes by each court from 1970-2010. Utilizing sound and testable hypotheses with data and methodology that is rigorous and verifiable, the authors provide multifaceted and useful evidence to test Inglehart’s value shift theory as it applies to elite actors. The authors succeed in teasing out factors that influence changes in key issue areas over time and persuasively argue that legal developments do not occur in a vacuum; rather, elite behavior depends on external pressures and actors in addition to justices’ attributes and attitudes.

To test Inglehart’s theory in the context of the Supreme Court of Canada, the authors blend two research strategies. First, they provide empirical evidence of the influence of justice specific and case specific factors on justice votes in cases where one would expect values to shift from materialist to postmaterialist. These cases include environmental protection, free speech, and discrimination. The authors assess case outcomes, opinion authorship patterns, intervener activity, and justice ideology with causal models to evaluate the relative impact of these factors on case outcomes at various points in time. Second, the authors use [*134] contextual analysis of key landmark cases in each issue area to determine the evolving language justices use to describe values.

The authors present empirical evidence first for each issue area. Then, in subsequent chapters for each issue type, the authors provide contextual analysis of significant decisions during the Laskin, Dickson, Lamer and McLachlin courts. The evidence presented in the quantitative chapters is convincing. The analyses consisted of justice specific variables such as gender, region, ideology and court era as well as case specific variables such as primary issue raised, type and number of interveners, and whether the case raised a federal, provincial or CHARTER OF RIGHTS issue. The case specific variables differed somewhat in each of the three quantitative chapters to reflect obvious differences by issue type.

IDEOLOGY IN THE SUPREME COURT

Vol. 27 No. 8 (October 2017) pp. 131-132

IDEOLOGY IN THE SUPREME COURT, by Lawrence Baum. Princeton, NJ: Princeton University Press, 2017. 261pp. Hardcover $35.00. ISBN: 978-0691175522.

Reviewed by Thomas G. Hansford, University of California, Merced. Email: thansford@ucmerced.edu.

To say that the influence of the justices’ ideological leanings on the Supreme Court’s decisions is well documented is to risk understatement. In fact, the connection between ideology and behavior on the Court is so established that its status has changed from the subject of empirical examination to that of being a central assumption undergirding almost all theorizing about the Court. How, though, does a justice’s ideological position translate into a preferred position in a Court case? What makes a position in a given legal issue area liberal or conservative? Has the mapping of issue positions onto the canonical left-right ideological dimension remained consistent at the Court over time? These are the types of question that motivate Lawrence Baum’s excellent and provocative new book, IDEOLOGY IN THE SUPREME COURT.

Baum shows that across several key issue areas, the apparent definitions of liberal and conservative outcomes have changed over the past several decades. For example, he demonstrates that while pro-freedom of expression votes were cast by liberal justices from the 1950s through 1980s, by the mid-1990s this type of vote was increasingly being cast by the more conservative justices. Using Baum’s language, the “polarity” of this issue area has switched. Other issue areas, including criminal justice and Takings Clause cases, are also shown to have experienced changes in ideological polarity during the Twentieth Century. These convincing results alone are important reminders that judicial scholars need to continue updating their understandings of the connection between ideology and specific issue positions.

Baum, however, also seeks to understand why these changes occur and what this tells us about the true content of judicial ideology. He argues that these shifts in polarity can occur when there are changes in the identities of the groups who are helped or hurt by the abstract legal principle in question. To return to the freedom of expression example, liberal justices prefer the expression of liberal positions. Thus when claimants from groups that are sympathetically viewed by liberals came forward in the 1940s through 1970s, the liberal justices were the ones casting pro-expression votes. When conservative speakers and corporations began to press free expression claims in subsequent decades, liberal justices retreated from their pro-expression positions, only to be replaced by conservative justices.

From this type of pattern, Baum concludes that the ideological polarity of an issue area is not entirely based on constrained, first-principles reasoning. Instead, polarity seems to sometimes be driven by affect towards the groups hurt or helped by an issue position. Interestingly, this would place the justices in Converse’s (1964) third “level of conceptualization,” in which people do not hold abstract ideological positions but instead think in terms of how policies impact groups. If Baum is right, then this is a remarkable and sobering [*132] assessment of the justices’ belief systems. It also suggests that the justices often do not have sincere ideologically-motivated preferences over abstract legal rules. Legal rules are mere instruments by which to assist groups that are favored and impair groups that are not.

PERMANENT STATE OF EMERGENCY: UNCHECKED EXECUTIVE POWER AND THE DEMISE OF THE RULE OF LAW

Vol. 27 No. 8 (October 2017) pp. 126-130

PERMANENT STATE OF EMERGENCY: UNCHECKED EXECUTIVE POWER AND THE DEMISE OF THE RULE OF LAW, by Ryan Alford. Montreal: McGill-Queen’s University Press, 2017. 333pp. Cloth $34.95. CAD. ISBN: 978-0-77-354919-7.

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


This book, by Canadian law professor Ryan Alford, adds to a growing body of literature about the weakening of traditional legal and institutional checks that once hemmed in the U.S. executive branch. The study is especially distinctive in its focus on a conception of the rule of law drawn from international materials.

The preface states, with disapproval, that “there is now a bipartisan consensus on the desirability of an elective dictatorship over foreign affairs and national security” (p. xiii). It concludes, “a country that has exited from constitutional governance is no longer self-correcting. If the rule of law is to be restored in the United States, this will likely require significant efforts by the international community …” (p. xiv).

The introductory chapter begins with assessments by UN Special Rapporteur Philip Alston, Amnesty International and Human Rights Watch of US responses to the 9/11 attack: they agree that measures such as drone killings, torture, and indefinite detention violate international humanitarian law. Alford argues that neither the Obama administration, the courts, or Congress provided effective legal remedies. Instead, the courts and Congress implicitly accepted increasingly bold claims of plenary executive power. The rule of law principles effective prior to 9/11 have been abandoned, and the other branches can no longer effectively oversee executive action.

Chapter 1 explores the minimum requirements of the rule of law, a concept that is traced back to British history and the struggle against absolute monarchy. Alford relies on Dicey’s definition of the rule of law, which is defined as the absence of prerogative and arbitrary power, equality before the law, and duty of officials to obey the laws. The UN has endorsed this concept, with the added proviso that accountability must be “consistent with international human rights norms and standards” (p. 17). Despite intense jurisprudential debate over which substantive rights are protected, the core principle of legality—rules of general application and neutral adjudication—is not controversial. The International Commission of Jurists has emphasized the importance of careful legislative delineation of executive powers and oversight of their exercise, as well as review and remediation by an independent judiciary. The author notes that, “This jurisdiction must extend to every possible claim of infringement of non-derogable human rights (Non-derogable rights are rights recognized under international law that a nation cannot violate under any circumstances (p. 17).) by the executive, and includes the power to determine whether evidence sought from the government by the plaintiff can be properly withheld in the interest of state security.” (p. 26). The recent growth of executive powers rejects the core principles of the rule of law and subverts the US Constitution. [*127]

THE SUPREME COURT: THE JUDGES, THE DECISIONS, THE RIFTS AND THE RIVALRIES THAT HAVE SHAPED IRELAND

Vol. 27 No. 8 (October 2017) pp. 122-125

THE SUPREME COURT: THE JUDGES, THE DECISIONS, THE RIFTS AND THE RIVALRIES THAT HAVE SHAPED IRELAND, by Ruadhán Mac Cormaic. United Kingdom Penguin Ireland, 2016. 456pp. $45.00.ISBN: 978-1-844-88340-0.

Reviewed by Richard S. Price, Department of Political Science & Philosophy, Weber State University. Email: richardprice@weber.edu.

In 1999, I became fascinated with learning more about the U.S. Supreme Court after an introductory class discussion. I quickly discovered THE BRETHERN by Bob Woodward and Scott Armstrong (1979). I devoured the journalistic expose on the Court and was hooked thereafter. I suspect this is a common story for readers of these reviews and when I came across a blurb about Ruadhán Mac Cormaic’s THE SUPREME COURT, I saw a similar opportunity to expand my horizons. Cormaic provides a journalistic exploration of the Supreme Court of Ireland from 1922-present. As with Woodward and Armstrong’s classic, Cormaic provides an engrossing look at a foreign court that offers great details for academics. I will highlight three areas law and courts scholars may find particularly interesting, both as useful teaching material and as research fodder.

First, Cormaic illustrates nicely the classic academic argument over whether judges are driven by legal or policy considerations (Gillman 2001; Segal and Spaeth 2002). He presents Irish jurists as existing along a continuum from theorists to the pragmatists. Theorists are described as embracing Montesquieu’s automatons theory: “judges … are only the mouth that pronounces the words of the law, inanimate beings, who can moderate neither its force nor its rigor” (p. 11), where pragmatists “are more result-oriented: they will the just outcome and then search for a legally permissible way to bring it about” (p. 11). The most intriguing exploration of decision-making, especially with an eye to classroom engagement, is the battle over unenumerated rights. The Irish Supreme Court first embraced the concept in RYAN V. ATTORNEY GENERAL (1965), where it accepted the idea of a right to bodily integrity while rejecting a challenge to water fluoridation (pp. 84-90). The application of this doctrine, similar to the American experience, received its most controversial exploration in matters of sex, contraception, and abortion. After giving birth to four children, May McGee’s physician strongly warned her against any further pregnancies because of her serious health problems. Ireland prohibited the sale, advertising, or importation of contraceptives and none were made within the Republic. The story of her trial would make a profound companion study with GRISWOLD V. CONNECTICUT (1966). For example, the State suggested that the McGee’s could simply live as brother and sister and when asked how her husband, Séamus, would feel to see May using contraceptives he responded “I’d prefer to see her use contraceptives than be placing flowers on her grave” (p. 163). The State strongly resisted the implication that the Constitution should change based on current opinion: “If this is an objectionable piece of legislation, the way to get rid of it was not by approach to the Courts but by having the Act repealed” (p. 164). When the Irish Supreme Court invalidated the law, it did so [*123] in part based on a marital privacy rationale similar to GRISWOLD but strengthened by the recognition of the family as a central component of Irish society in Article 41 of the Irish Constitution (170-72). Justice Brian Walsh particularly embraced this rationale, in part, Cormaic suggests, because he was aware of the connection between GRISWOLD and ROE V. WADE (1973) and wanted to cut off any future litigation towards abortion rights (p. 174). Pro-life activists, in Ireland, saw the same risks and successfully advocated for a constitutional amendment, adopted as the Eight Amendment in 1983 by 66.9%, recognizing the “right to life of the unborn” (Art.40.3.3o). This did not stop litigation over the issue. Most famously, the X case involved a fourteen-year-old rape victim who sought to travel to England to obtain an abortion, the common way around Ireland’s restrictive law. The Attorney General instructed his office to seek an injunction, a decision Cormaic shows to have puzzled his government colleagues (p. 286). The Supreme Court ultimately lifted the injunction holding that the girl’s suicidal feelings presented a risk to her life overcoming the constitutional restriction. While momentous, the X decision demonstrated the incoherence of abortion law in Ireland, which the country is still struggling to deal with (pp. 284-98). The 1983 challenge to Ireland’s sodomy law provides another parallel to American unenumerated rights experience. The Irish Court upheld the law by drawing on “vague and largely unexplained natural law concepts and the Christian tradition to denounce homosexuality as a suggestible condition that was immoral and wrong” (p. 207). This brief description does not do justice to the complex narrative that Cormaic weaves but it should be sufficient to show the teaching opportunities inherent in his book as well as a nice comparative example of courts and social change research.

Second, Cormaic explores the institutional development of the Irish Court in ways that scholars of the rise of judicial power in the U.S. would find intriguing (Crowe 2012; Whittington 2007). While the Irish Constitution granted the courts judicial review, judges trained under a British tradition were loath to exercise the power. Cormaic uses language that scholars of political development have long been familiar with: “judicial innovation works by accretion, like a building that takes shape with the addition of each new block” (p. 58). In the 1940s, the Irish Court sought to protect itself from political intrusion when it invalidated a 1947 law that sought to require the dismissal of all actions related to a dispute over a political party’s funds (pp. 62-67). Cormaic details the ways in which a new generation of justices built upon this foundation to strengthen the courts, in part by expanding its protection of fundamental rights as evident in the story about May McGee and the right to privacy. Decades later, Walsh recounted how, when he was appointed, the Taoiseach expressed a desire for a more American style Supreme Court (p. 78) and in some ways the activism of the Irish Court in the 1960s and ‘70s paralleled the Warren Court experience touching on a variety of issues from criminal procedure to the rights of prisoners held for extradition to the United Kingdom. In other ways, though, the institutional power of the Irish Court went further than its American counterpart in 1986-87 when it fundamentally altered Ireland’s treaty power. In December 1986, Ireland was set to ratify the Single European Act when the High Court enjoined ratification days before the January 1st deadline. On appeal the Irish Supreme Court sustained the injunction, reasoning that a significant transfer of control of foreign [*124] policy must be submitted to the people in a referendum. “Since 1987 every European treaty has been put to a referendum, and two … have been defeated before being approved at the second attempt” (p. 262). This not only altered popular expectations about referenda, but the Court also forbade the Government from using public money to campaign for a referendum result (pp. 251-68). This is not to say that the Court never faced challenges. In 2011, 80% of voters supported removing the constitutional prohibition on reducing judicial salaries concluding a controversy of the Great Recession public funding crisis (p. 380). Cormaic’s story illustrates a Court that evolved from a deferential British approach to judicial power to an independent actor of political importance.

WORKING LAW: COURTS, CORPORATIONS, AND SYMBOLIC CIVIL RIGHTS

Vol. 27 No. 7 (September 2017) pp. 117-121

WORKING LAW: COURTS, CORPORATIONS, AND SYMBOLIC CIVIL RIGHTS, by Lauren B. Edelman. Chicago: University of Chicago Press, 2016. 312pp. Paper $30.00. ISBN: 9780226400761.

Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email: rcblack@msu.edu.

Why, after more than half a century since the passage of the Civil Rights Act of 1964, do we continue to observe racial and gender discrimination in the workplace? This is the central question in Edelman’s WORKING LAW: COURTS, CORPORATIONS, AND SYMBOLIC CIVIL RIGHTS and it should be of interest not just to her primary audience (i.e., law and society scholars such as herself), but also to students (at a variety of levels) and teachers of the American judiciary more generally.

To motivate the problem, Edelman asks us to consider a number of employment statistics. First, the ratio of employment-to-population for women (both white and of color) and black males continue to lag behind their white male counterparts (p. 7). Second, beyond just simple employment, both of these groups continue to be underrepresented in management positions (pp. 7-8). And, third, these groups (and also Hispanics) continue to earn significantly less in terms of salary than white males employed in identical positions (p. 7).

So, given these conditions, who’s to blame? Edelman’s causal story ends with the observation that courts typically show a high degree of deference to companies and industries when they have implemented anti-discrimination policies. This is harmful because the tendency to defer is so strong that courts ignore objective evidence of systematic discrimination that continues to persist, even though some sort of (clearly ineffective) policy in place. As such, these policies “represent little more than cosmetic compliance” (p. 11).

But, judicial deference is only the final stage in Edelman’s thought-provoking theoretical account, which she labels “legal endogeneity theory.” This theory is “a process through which the meaning of law is shaped by the widely accepted ideas within the social arena that law seeks to regulate” (p. 12). As she elegantly elaborates on just a few pages later, “Under these circumstances, law tends to operate on myth and ceremony in a way that renders the impact of law dependent on the effectiveness of the structures that organizations create. When organizations hold the key to the meaning of law, they also harness its power, weakening the potential of social reform laws to achieve [their intended] ideals” (p. 15).

Such deference is not, of course, created overnight, but rather is the culminating step in a six-stage model Edelman introduces in Chapter 2 and fleshes out in subsequent chapters. Although she warns the reader that it will contain more “sociolegal jargon” than the rest of the text, even I, a mouth-breathing judicial politics researcher, found it to be pithy, accessible, and engaging. Here I provide a very short synopsis of each before diving into the evidence she marshals in the remaining individual chapters.

THE US SUPREME COURT AND THE DOMESTIC FORCE OF INTERNATIONAL HUMAN RIGHTS LAW

Vol. 27 No.7 (September 2017) pp. 113-116

THE US SUPREME COURT AND THE DOMESTIC FORCE OF INTERNATIONAL HUMAN RIGHTS LAW, by Stephen A. Simon New York: Lexington Books, 2016. 222pp. Cloth $85.00. ISBN: 1498534708.

Reviewed by Ilya Somin, Professor of Law, George Mason University. Email: isomin@gmu.edu.

Should international human rights law ever be given the force of domestic law in the United States? If so, when? These questions are increasingly the object of debate in the legal and political community. They also come up in a variety of important cases that the Supreme Court has considered in recent years. Stephen Simon’s book is an excellent introduction to these controversies and the arguments deployed by contending scholars and jurists.

As Simon explains, “internationalists” argue that the United States can both promote universal principles and more effectively advance its own national interests by incorporating international human rights norms into its domestic law. By contrast, their “sovereignist” opponents are skeptical about the merits of much of international human rights law. They fear that giving human rights domestic force would erode American autonomy, undermine democratic self-government, and saddle the U.S. with dubious laws.

Simon expertly traces the clashes between these schools of thought in a series of U.S. Supreme Court cases over the last two decades, focusing on four areas: the application of customary international law through the Alien Tort Statute, the extent to which treaties are incorporated into domestic law, the scope of international law constraints on U.S. policies in the War on Terror, and the use of foreign law in interpreting the parts of the U.S. Constitution. While the each of these fields raises distinct issues, Simon shows important commonalities. For example, the same Supreme Court justices who are skeptical of the idea that treaties should be presumed to be “self-enforcing” in American courts, also take a narrow view of the extent to which international treaties limit wartime executive power, and reject the utility of using foreign and international law to interpret the Constitution.

As Simon emphasizes, the dispute between the two sides encompasses disagreements over both the substantive merits of international human rights law and the process by which it is produced. Internationalists argue that the international human rights regime includes a variety of valuable principles that the United States would do well to follow. They also contend that, despite some flaws, the process by which international human rights law is produced is generally a good one – representing the considered judgment of a diverse and increasingly sophisticated global community.

ABOUT ABORTION: TERMINATING PREGNANCY IN TWENTY-FIRST CENTURY AMERICA

Vol. 27 No. 7 (September 2017) pp. 109-112

ABOUT ABORTION: TERMINATING PREGNANCY IN TWENTY-FIRST CENTURY AMERICA, by Carol Sanger. Cambridge, MA: Harvard University Press, 2017. 320pp. Hardcover $29.95. ISBN: 9780674737723.

Reviewed by James Daniel Fisher, Department of History, Politics, Languages & Cultures, Edinboro University. Email: jdfisher@edinboro.edu.

Carol Sanger’s ABOUT ABORTION examines “how women confront and decide about unwanted pregnancy within the complicated structures of constraint—personal, cultural, legal—that frame the issue of abortion in modern America” (p. ix). As such, it is not directly or primarily a study of the law. Sanger notes, however, that any worthy study of abortion politics in the United States must involve some legal analysis. American abortion law, furthermore, simultaneously reflects and affects larger political and social forces and itself cannot be understood without a broad examination of those forces. For that reason, ABOUT ABORTION is an important complement to books that engage in narrower jurisprudential analyses. It is an excellent example of how to unlock insights about law and politics by disregarding disciplinary boundaries and exploring all of the various dimensions of the human condition necessary to gain leverage over a difficult and irreducibly complex issue.

Sanger’s main empirical conclusion is that “the secrecy surrounding women’s personal experience of abortion has massively, though not irreparably, distorted how the subject of abortion is discussed and how it is regulated” (p. xi). This secrecy is the result of traditional stigma against abortion. That stigma has been exacerbated in recent years by “visual technology,” like ultrasound machines, being used “opportunistically” by anti-abortion activists to create a “visual politics” that advances the view of the fetus as a person with a right to life. At the same time, the individual experiences of women considering or having an abortion are pushed further from the realm of acceptable public discourse—a phenomenon Sanger calls “abortion silence” (p. 67). This tilting of the intellectual and emotional playing field of abortion politics—or, put another way, the foregrounding in the public consciousness of the fetus-as-child and pregnant-woman-as-mother—results in laws that Sanger concludes are harmful, like mandatory ultrasound requirements for women seeking abortions, and “judicial bypass” procedures for minor women who want to obtain an abortion without obtaining consent from, or giving notice, to a parent.

The “silence” around the individual experiences of abortion patients (that would make more clear the nuanced and complicated contexts within which women make abortion decisions), also contributes, in Sanger’s view, to the common view of abortion “as war, as struggle, as clash, as battlefield” (p. xiii), a simplified and unproductive public discussion, and a politics and law of abortion framed by false dichotomies.

Sanger would like to find a way to “normalize” the public discussion of abortion. “Normalizing” in this sense would involve reframing abortion as a “common medical procedure” (which it is). This would, in Sanger’s view, lower the temperature around the discussion of [*110] abortion, allowing for people of diverse views to discuss and truly comprehend the mindset of others, including the fine-grained reasons women decide to have abortions; their sometimes-mixed views about those decisions; and the multiplicity of ways that people understand what the fetus “is,” depending on the context.

INCREASING LEGAL RIGHTS FOR ZOO ANIMALS: JUSTICE ON THE ARK

Vol. 27 No. 7 (September 2017) pp. 105-108

INCREASING LEGAL RIGHTS FOR ZOO ANIMALS: JUSTICE ON THE ARK, by Jesse Donahue (ed.), Lanham, MD: Rowman & Littlefield, 2017. 163pp. Hardback $90.00. ISBN: 978-1-4985-2894-8. eBook $85.00 ISBN: 978-1-4985-2895-5.

Reviewed by Steven Tauber, School of Interdisciplinary Global Studies, University of South Florida. Email: stauber@usf.edu.

Since the 1980s, scholarship on the legal status of animals, also known as “animal law,” has proliferated in the fields of law and social science, especially as public concern for animal welfare has increased. However, the extant animal law literature had not concentrated specifically on animals living in zoos and aquariums (for brevity’s sake I will henceforth use the term “zoo” to refer to both zoos and aquariums), and this oversight had been problematic because zoo animals have a unique status compared to other animals. Similar to animals in research and entertainment facilities, zoo animals are captive, but similar to companion animals (i.e., pets), zoo animals receive care from their human custodians. Although the species of animals who live in zoos tend to be wildlife, the individual zoo animals are not wild because they live under human care. Fortunately, Jesse Donahue’s edited volume fills this gap in the literature by focusing on animal law as it relates to zoo animals. The central argument of this book is that many zoos harm animals, but abolishing zoos is not a viable solution. Therefore, Donahue and the contributors to this book offer a number of intriguing legal recommendations for improving the conditions of animals living in zoos.

In the Introduction, Donahue establishes the central point of her book. She recognizes that there is significant variation in the conditions of animals in zoos throughout the United States and the world. Many zoo animals suffer considerably in inhumane habitats; consequently, animal rights activists argue that zoos should be abolished. However, Donahue notes that abolishing zoos altogether will not improve animal welfare because there is no viable place to put all of the animals currently living in zoos. Therefore, Donahue proposes expanding legal rights for zoo’s animals. Donahue continues with this idea in Chapter 1. She begins with an interesting analysis of terminology for zoo animals and proposes the term “wild public companion animals” (p. 4). Zoo animal species tend to be wildlife, but the individual zoo dwellers are not wild. Unlike pets, zoos animals (and the facilities that house them) are generally owned by nonprofit organizations that charge admission to view the animals. Moreover, although zoo animals are not companion animals like pets, they do live among humans who are concerned about their welfare and often bond with them. More importantly, by renaming zoo animals as “wild public companion animals,” legal institutions can recognize zoo animals as “co-citizens,” which will result in significantly increased legal protections for the animals. Additionally, Donahue proposes creating a separate federal agency to enforce animal welfare laws in zoos. This agency’s single mission would result in greater animal protection, and it would give activists a central place to file complaints against substandard conditions at zoos. An agency devoted to zoo animals would be well positioned to thoroughly investigate these complaints. In short, Donahue proposes a new legal regime for protecting zoo animals. [*106]

Chapters 2 and 3 address specific issues facing zoos in the United States. Donald E. Moore – the Director of the Oregon Zoo – writes Chapter 2, which concerns reintroducing animals into the wild. He defines reintroduction as “transfers of animals born in captivity and then restored to their natural habitat” (p. 27). Conservationists favor reintroduction of endangered species in order to stave off extinction, and animal rights activists believe that reintroduction is preferable to captivity in a zoo because the animals live in their natural habitat instead of in a cage. However, Moore explains that reintroduction is extremely difficult because animals need to be able to make the transition from zoos, where humans care for them, to the wild, where catching prey is difficult, conditions can be harsh, and hunters are allowed to kill animals. Additionally, Moore notes that reintroduction policies allow human intervention on behalf reintroduced animals who are not thriving only when the animal is an endangered species. Consequently, reintroduced animals who are not members of an endangered species are more likely to suffer and die after being released. Animal Behavior specialist Susan Margulis writes Chapter 3, which addresses research conducted on zoo animals. Animal rights activists often conflate research conducted in zoos with research conducted on animals in laboratories; however, Margulis demonstrates that unlike research conducted on animals in laboratories, research conducted in zoos is humane and benefits the animals. The main reason for this difference is that accredited zoos must adhere to the Association of Zoos and Aquariums’ (AZA) relatively stringent regulations governing the treatment of zoo animals, whereas laboratories only have to adhere to the laxer Animal Welfare Act, which permits animal suffering. Most research on zoo animals is noninvasive and voluntary – animals can opt out if they choose. The occasional invasive research must use anesthesia. Recognizing that there are still problems with research conducted on zoo animals, Margulis proposes ways to increase protections, such as establishing Institutional Animal Care and Use Committees (IACUC) and developing better techniques for inferring informed consent from the animals. She also advises zoos to better educate the public on the humaneness of their research and its benefits to the animals.

Chapters 4 and 5 address zoos outside the United States. Animal rights activists Michael Morris and Mary Murray write Chapter 4, which focuses on New Zealand. Similar to the United States, New Zealand has statutes that govern zoo animal welfare, and it has an accrediting agency that scrutinizes animal welfare and ensures that zoos prioritize conservation and education. Nevertheless, the authors contend that these regulations do not sufficiently protect New Zealand’s zoo animals. To rectify this problem, the authors propose concrete recommendations, including banning high-functioning mammals and exotic animals from captivity and creating an independent agency to enforce protections more vigorously than they do now. Primatologist Govindasamy Agoramoorthy writes Chapter 5, which concerns zoos in Southeast Asia. Most Southeast Asian nations have animal protection laws, but they are weak and often unenforced. Additionally, the Southeast Asian Zoo Association (SAZA) represents zoos in Southeast Asia, but unlike AZA, it does not regulate the treatment of captive animals. Southeast Asian zoos frequently impede animal welfare by housing exotic animals in ill-equipped facilities; subjecting the animals to humiliating performances; [*107] and allowing physical, psychological, and emotional abuse. He suggests providing greater legal rights for zoo animals through stronger laws prohibiting the use of animals in entertainment; stricter standards for zoos’ conservation and rescue functions; more funding devoted to animal welfare; and more wild animal parks. He also advocates that the key stakeholders – conservation groups, the zoo owners, and animal rights groups – work together to improve the treatment of zoo animals in Southeast Asia.