CONSTITUTIONAL DYSFUNCTION ON TRIAL: CONGRESSIONAL LAWSUITS AND THE SEPARATION OF POWERS

Vol. 30 No. 8 (September 2020) pp. 128 - 131

CONSTITUTIONAL DYSFUNCTION ON TRIAL: CONGRESSIONAL LAWSUITS AND THE SEPARATION OF POWERS, by Jasmine Farrier. Ithaca: Cornell University Press, 2019. 188pp. Hardcover: $115.00. ISBN: 1-501-702505. Paper $29.95. ISBN: 1-501-74710-X.

Reviewed by Ellen M. Key, Department of Government and Justice Studies, Appalachian State University. Email: keyem@appstate.edu.

What is the proper role of the judiciary in settling executive/legislative separation of powers disputes? That is the important question Jasmine Farrier tackles in CONSTITUTIONAL DYSFUNCTION ON TRIAL: CONGRESSIONAL LAWSUITS AND THE SEPARATION OF POWERS. Specifically, Farrier contrasts the disposition of private litigation with the treatment of member suits to see if the Court is willing to be used as a vehicle through which Congress can curtail executive power, and sometimes even reign in Congress itself.

In a system designed to let ambition counter ambition, each branch has an incentive to expand their power and institutional tools to defend itself from encroachment from other branches. Whether those tools are used, however, is left to the discretion of those who occupy political office. Frequently, members of Congress turn to the judiciary to resolve separation of powers disputes rather than use the legislative options at their disposal. Farrier argues, the existence of these member suits is a symptom of an unbalanced institutional system. Moreover, the choice to seek relief from the judicial branch rather than Congress itself is unwise. While the courts can offer short-term relief, they are ill-suited to provide long-term solutions to separation of powers issues.

Farrier bases her argument on both practical and theoretical grounds. Practically speaking courts have several options when faced with member suits: dismiss the case on standing or justiciability grounds, grant the case and side with the nonmember party, or grant the case and side with the member. As Farrier argues in the introduction, concern with maintaining their own institutional legitimacy makes the first option very attractive to judges and justices. Relative to private litigants, members have a difficult time demonstrating standing. Even if they are found to have standing, cases may still be dismissed as political questions better addressed by another branch of government. If a question is found to be justiciable, the doctrine of equitable abstention may still be used to keep a case from being heard if parties have not exhausted all other avenues for relief. Even if they are able to successfully cross all those hurdles and get a case granted, it does not mean the member-litigant will prevail.

These practical concerns intersect with the theoretical argument about the proper role of the judiciary in settling separation of powers disputes. Turning to the judiciary is frequently the only avenue for redress available to private litigants, but the same is not true for Congress. Members should, Farrier explains, work within their institution to vigorously defend their power rather than enlisting the courts to fight the battle in their stead. Pushing issues to the courts rather than resolving them “in house” leads to an imbalance of power and an outsized role for the judiciary, further exacerbating the power imbalance. [*129]

The book is organized into three substantive areas (war powers, the legislative process, and unilateral executive action), with two chapters per section comparing and contrasting first private litigation and then congressional litigation on the respective topics. Although the general structure is to discuss private litigation and member suits in separate chapters, this separation is not always maintained. For instance, the first ever member suit, MITCHELL V. LAIRD (1973), and the subsequence case of HOLTZMAN V. SCHLESINGER (1973) are discussed alongside private litigation in Chapter 1. This comingling makes it more difficult for the reader to identify patterns in the courts’ jurisprudence regarding private and congressional litigation, but Farrier provides enough summary points to help clarify the argument.

REPUGNANT LAWS: JUDICIAL REVIEW OF ACTS OF CONGRESS FROM THE FOUNDING TO THE PRESENT

Vol. 30 No. 8 (September 2020) pp. 124 - 127

REPUGNANT LAWS: JUDICIAL REVIEW OF ACTS OF CONGRESS FROM THE FOUNDING TO THE PRESENT, by Keith E. Whittington. Lawrence, KS: University Press of Kansas, 2019. 432pp. Cloth $39.95. ISBN: 978-0-7006-2779-0.

Reviewed by Andrew J. O’Geen, Department of Political Science, Davidson College. Email: anogeen@davidson.edu.

It will come as no surprise to those who are already familiar with his extensive body of work, but Keith Whittington has written an excellent book. In it, he canvases the entire corpus of U.S. Supreme Court opinions in which the Court reviews the constitutionality of a federal statute, some 1,308 cases through October term 2017. Whittington’s ultimate goal is a more nuanced and more complete understanding of the Court’s use of the powerful tool of judicial review. First, the book is an impressive effort in data collection and description. Whittington does well to use these data to show how different trends in the Court’s use of judicial review have evolved and changed over time and how these trends might relate to other important factors in American politics. Covering so much historical ground, this endeavor on its own would make for an interesting book. However, Whittington does more than just describe a central aspect of the Court’s work. He also seeks to situate this description squarely within the extensive literature that has grown largely out of Dahl’s (1957) seminal article on the Court as a national policymaker. The result is an updated and slightly more nuanced take on the Court’s role as an institutional actor that operates “within democratic politics, not simply as a constitutional guardian standing outside of democratic politics” (p. 314). His success in both efforts is a testament to the quality of both the writing and the scholarship in REPUGNANT LAWS.

The overarching structure of the book is straightforward and easy to follow. Whittington begins with a chapter outlining the questions and perspective that shape the book. This chapter does an excellent job of orienting the reader toward the larger task ahead and Whittington does well to place the book into conversation with foundational work on the Court’s power of judicial review including that of Dahl and Bickel (1962). Whittington then divides the Court’s history into three primary eras: the Founding through the Civil War, the Civil War through World War I, and World War I through the present. The individual chapters of the book dive deeper into specific periods within each of these eras. This periodization effectively contextualizes and complicates the Court’s approach to evaluating federal statutes and provides a useful structure through which to understand the Court’s role in shaping federal law and policy. Finally, Whittington does the impatient reader a tremendous favor by ending Chapter 1 with a list of seven themes and conclusions that are more fully developed in the ensuing chapters.

In Chapter 2, Whittington offers a historical overview of judicial review before the Founding. He first shows that colonial Americans – at least elites – understood that constitutions and the law could (and should) place limits on the power and authority of governments. He goes on to show that state courts were practicing an early form of judicial review, mostly centered around challenges to judicial power. The primary point is that the foundations for judicial review – as it would come to [*125] be practiced in the United States – were in place before the country was founded and were rooted in the basic functioning and understanding of the English and early colonial legal systems. Further, the supremacy of the federal constitution – enforced by federal judges – over state courts, was a fundamental concern of many of the founders.

Chapter 3 represents the start of the main body of the book and begins with Whittington challenging what he refers to as the "standard story" of judicial review before the Civil War. As he puts it, "MARBURY was not the big bang, and DRED SCOTT was not a bolt from the blue” (p. 61). To be sure, both MARBURY and DRED SCOTT were critical moments in the history of the Court’s practice of judicial review. But, through a more comprehensive look at all the cases evaluating the constitutionality of federal statutes, Whittington shows how “the process of judicial review was built up through the resolution of more mundane cases in which the political stakes were relatively low” (p. 117), with the Court focused on both the process of building and reinforcing the power of the federal government and building and reinforcing the power of the judicial branch. Herein also, we see an early example of what becomes a consistent theme throughout the book. The beliefs and prejudices of any particular historical moment – particularly, in this era, around the issue of slavery – are reflected in the justices of the Court and, through them, in the decisions, doctrines, and policies that emanate from that Court in the form of opinions and case resolutions.

THE TRANSFORMATION OF TITLE IX: REGULATING GENDER EQUALITY IN EDUCATION

Vol. 30 No. 8 (September 2020) pp. 120-123

THE TRANSFORMATION OF TITLE IX: REGULATING GENDER EQUALITY IN EDUCATION, by R. Shep Melnick. Washington DC: Brookings Institution Press, 2018. 325 pp. Paperback $35.99. ISBN: 9780815732228. eBook ISBN: 9780815732402.

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

THE TRANSFORMATION OF TITLE IX provides a comprehensive description of Title IX. The book discusses Title IX enforcement in athletics, sexual-harassment, and gender identity, providing an in-depth understanding of the role of the Office for Civil Rights (OCR) in shaping and expanding how and when Title IX governs different aspects of education. Much of the book is descriptive but the core argument is that the Office for Civil Rights within the U.S. Department of Education has neglected to follow the provisions of the Administrative Procedure Act (APA) and instead relied on Dear Colleague Letters to expand the role and reach of Title IX. This practice, coupled with judicial branch cooperation and interpretation has led to a “convoluted policy making process” that leaves OCR and the enforcement of Title IX vulnerable to shifting partisan priorities (p. ix).

Melnick’s argument is grounded in a detailed history beginning with the debate over and passage of Title IX in 1971 and 1972. Scholars of the bureaucracy, administrative law, sex discrimination, and women in politics will find much valuable and eye-opening information here. This book had the potential to be a valuable resource in classes on those same topics. Unfortunately, the tone of the book is sufficiently hostile at times that it would be difficult to assign in any class setting.

In the first three chapters. Melnick provides three short examples of how OCR has interpreted and enforced Title IX. He identifies five defining elements of this policy area. They are (1) the growth of statutory, judicial, and bureaucratic tools that define the “civil rights state”; (2) institutional “leapfrogging” between the bureaucracy and federal courts; (3) critical distinctions between education and business; (4) The role of “rights talk”; (5) and the importance of continued progress in combating inequalities (pp. 13-21).

The next two chapters provide a history of the civil rights state beginning with the passage of the Civil Rights Act of 1964 and the challenges presented by the 1972 amendments that created Title IX. Melnick introduces the key federal agencies tasked with enforcing civil rights statutes and the role of the courts in interpreting these statutes. He also provides a few examples of times Congress has exercised control over these interpretations by overriding Supreme Court decisions. The challenges of Title IX include the language of the statute itself, the difficulty of extending mandates on racial equality to gender equality, and OCR’s limited options for enforcement.

The next four chapters examine Title IX enforcement in athletics. Even though athletics were not the primary focus of debate when Congress passed Title IX in 1972, athletics became the primary focus of OCR’s enforcement regime. Melnick [*121] notes that “Athletics is the most important area where the analogy between racial discrimination and sex discrimination breaks down” (p. 79). The result is that we have embraced separate but equal in athletics while rejecting it in other settings. This complicates efforts to define equality.

In Chapter 5, Melnick contrasts the tremendous task that Congress assigned to OCR with the relative lack of resources Congress has provided. The small size of the agency, the lack of clarity in its mandate, the limits of its enforcement powers, and Congress’s desire to overload the agency have plagued OCR from the beginning. The agency has followed the APA to promulgate rules and policies just once in its nearly fifty-year history. Since then, OCR has relied on compliance agreements with individual institutions, which then become the basis for policy interpretations that apply to all institutions through Dear Colleague Letters (DCLs). Melnick demonstrates that this practice leaves the enforcement of Title IX particularly vulnerable to shifting partisan priorities.

FRACTURING THE FOUNDING: HOW THE ALT-RIGHT CORRUPTS THE CONSTITUTION

Vol. 30 No. 7 (August 2020) pp. 114 - 119

FRACTURING THE FOUNDING: HOW THE ALT-RIGHT CORRUPTS THE CONSTITUTION, by John E. Finn. Lanham, MD: Rowman and Littlefield, 2019. 258pp. Cloth $34.00. ISBN: 978-1-5381-2367-6.

Reviewed by Kevin McGravey, Department of Political Science & Public Policy, Merrimack College. Email: mcgraveyk@merrimack.edu.

While media attention on the Alt-right has grown recently, there has been a relative lack of serious scholarly treatment of the Alt-right and its approach to the Constitution. John E. Finn’s FRACTURING THE FOUNDING fills this lacuna with an important and timely book, offering an accessible primer on who makes up the Alt-right, how and why the Alt-right has developed its own version of the Constitution, and why understanding this movement matters. Finn’s treatment of the Alt-right and its constitution, which he refers to as the Alt-constitution, is carefully done and offers an excellent source for scholars and students alike.

Finn’s book contains six chapters in addition to a substantive introduction and conclusion that collectively present a case that the Alt-right has produced its own constitutional vision at odds with the Constitution’s text and values. After an introduction that motivates the book’s purpose and layout, Finn begins with a definitional sketch of the Alt-right that presents both continuities and discontinuities within it. Finn explains that the Alt-right, like other movements, shares common goals but is not monolithic. Despite differences within the Alt-right, which are explored through brief biographical sketches of Alt-right leaders, Finn outlines common principles around which the movement coheres. Among these principles are “white racial supremacy…belief in the sanctity of state and local government coupled with the suspicion…of the federal government…strict limits or a complete ban on immigration and opposition to gun control and the social welfare state” (p. 23).

Having defined the Alt-right, Finn proceeds in subsequent chapters to explain and critique the Alt-right’s approach to the Constitution. He looks at particular areas in which its vision of the country and its laws both breaks with and endangers traditional constitutional principles. In Chapter 2, Finn details the Alt-constitution’s religious foundations. As he notes, the Alt-right goes beyond the somewhat common notion that there are religious roots undergirding the idea of, for example, natural rights in the Constitution. Rather, for the [*115] Alt-right, understanding its very particular Christian foundations “is the single most important key to understanding what the Alt-constitution means….” (p. 72). The Alt-right believes not only that “the United States is a Christian nation” but more fundamentally “that the Founders’ handiwork is divinely inspired” and thus “the original Constitution is perfect and has no need of change” (p. 43). As Finn emphasizes, the idea that the Founding was divinely inspired has significant implications for the Alt-right’s approach to constitutional interpretation which emphasizes a version of originalism and draws upon the Protestant notion that a text such as the Constitution can be understood without expert guidance from scholars and judges. Religion is central, on Finn’s account, to understanding the Alt-right’s conception of the Founding and the entire Alt-constitution more broadly.


In Chapters 3 and 4 – together a real strength of the book – Finn surveys the Alt-right’s conception of the First and Second Amendments. Chapter 3 outlines the Alt-constitution’s First Amendment. With respect to the speech clause, Finn notes that what distinguishes the Alt-constitution’s protection of speech is that unlike others who debate the meaning of the clause, the Alt-right denies the claim that “the First Amendment does not protect all manner of speech or expression” (p. 81). In other words, they emphasize (though, as noted later, not for all citizens or viewpoints) a kind of speech absolutism. Later in Chapter 3, Finn describes the Alt-constitution’s approach to the religion clauses which emphasize the protection of Christianity. This protection takes two forms. On the one hand, Justice Thomas’s view that the Establishment Clause is merely a restriction on the establishment of a federal religion but allows states the freedom to aid religion is “a cornerstone of the Alt-constitution’s conception of freedom of religion” (p. 99). But, on the other, the Alt-right free exercise clause emphasizes the protection of Christian religions over others. For example, Finn explains how the Alt-first amendment would see CHURCH OF LUKUMI BABALU AYE, INC. v. CITY OF HIALEAH (1993) as wrongly decided because the protection of the Alt-right’s free exercise clause extends only to Christian faiths. With respect to parts of the First Amendment, Finn critically engages with the Alt-right on these clauses and draws out the hypocrisy in their approach. While the Alt-constitution professes absolutism, that absolutism applies only to positions friendly to and persons within the movement. As Finn summarizes, “the free speech provisions of the Alt-first amendment are white and the religion clauses are Christian” (p. 100). [*116]

AN ANTI-FEDERALIST CONSTITUTION: THE DEVELOPMENT OF DISSENT IN THE RATIFICATION DEBATES

Vol. 30 No. 7 (August 2020) pp. 109 - 113

AN ANTI-FEDERALIST CONSTITUTION: THE DEVELOPMENT OF DISSENT IN THE RATIFICATION DEBATES, by Michael J. Faber. Lawrence, KS: University Press of Kansas, 2019. 489pp. Cloth. ISBN: 978-0-7006-2777-6.

Reviewed by Beau Breslin, Department of Political Science, Skidmore College. Email: bbreslin@skidmore.edu.

The United States Constitution is taking a beating these days. Harvard scholar Danielle Allen writes, “We are in our Articles of Confederation Moment,” by which she means that our constitutionally designed system of government no longer adequately serves our needs. We might disagree with the interesting constitutional modifications she proposes, but her larger point is that the Constitution may have simply run its course. Similarly, Matt Ford just offered his recipe for serious constitutional reform in a provocative NEW REPUBLIC piece entitled, “Rebuilding the Constitution: American Democracy is Broken, Here’s How to Fix It.” He too insists that America’s fundamental law needs significant repair. Not to be outdone, a group of legal scholars is currently undertaking an experiment in virtual constitution-making, attempting to map out an American Constitution for the twenty-first century.

Allen, Ford, and so many others belong to a long and illustrious line of constitutional skeptics dating back to the American Founding when Anti-Federalists set the standard for constitutional criticism. The Anti-Federalists opposed ratification of the newly drafted U.S. Constitution because they believed that the document would not adequately serve America’s needs. And they did so with a wide variety of arguments. Some wrote compellingly about the disaster that awaits with such a dramatic shift in power from the states to the federal government. Others lamented the lack of a list of rights embedded in the constitutional text. Still others argued that the environment and the proposed constitutional design are not conducive to realizing a prosperous nation. Ultimately, the Anti-Federalists did not prevail in their opposition to a Constitution that is now 233 years old, but they nonetheless left an impressive and enduring legacy.

Michael J. Faber takes a fresh look at the Anti-Federalists in his terrific new book, AN ANTI-FEDERALIST CONSTITUTION: THE DEVELOPMENT OF DISSENT IN THE RATIFICATION DEBATES. In so doing, Faber reminds us that constitutional [*110] reproach—then and now—is a crucial character in America’s ongoing political story. Although countless volumes have been written about the Anti-Federalists in the last two centuries, Faber offers at least two novel contributions. First, he organizes the many Anti-Federalist voices into three broad camps: the “Democratic” Anti-Federalists, the “Power” Anti-Federalists, and the “Rights” Anti-Federalists. Second, and most excitingly, he imagines an actual Anti-Federalist Constitution. The Anti-Federalists could not generate enough support for their own Constitutional Convention and thus the loosely defined collective never produced an alternative constitutional draft, but Faber’s imagined Constitution provides most interesting results.

Faber begins the book by explaining how his work will be different. “Certainly this story has been told before…,” he writes, “but the examination has generally focused on people or events. Here I endeavor to tell a story about ideas…” (p. ix). The three strands of Anti-Federalist argument—democratic, power, and rights—represent those dominant ideas. Faber explains that Democratic Anti-Federalists (like Centinel) were concerned primarily with issues of representation while the Power Anti-Federalists (like Brutus) were principally concerned with the concentration of authority in the hands of the national government. Finally, the Rights Anti-Federalists were focused mainly on the absence of rights protections in the constitutional document. Faber reminds us that most Anti-Federalists navigated easily among all three strands and very few pushed exclusively for just one. But he writes convincingly that the three strands are an effective lens through which to view the entire Anti-Federalist movement.

The core of the book (Chapters 3-17) is organized along chronological and geographical dimensions. “To find the Anti-Federalist position,” Faber insists, “one needs to sort through the arguments made, with an eye toward the sequence of events and the counterarguments raised by the Federalists” (p. 350; emphasis added). Faber thus weaves the plot of the ratification debates from the early discussions in Pennsylvania to the last holdouts in North Carolina and Rhode Island. He marches his way through the debates, describing the actors and the arguments, and, eventually, the results.

BOXING PANDORA: RETHINKING BORDERS, STATES AND SECESSION IN A DEMOCRATIC WORLD

Vol. 30 No. 7 (August 2020) pp. 104 - 108

BOXING PANDORA: RETHINKING BORDERS, STATES AND SECESSION IN A DEMOCRATIC WORLD, by Timothy William Waters. New Haven: Yale University Press. 320pp. Cloth $38.00. ISBN: 9780300235890.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm@wlu.edu.

BOXING PANDORA really is two books in one. In the first part, author Tim Waters offers a thoughtful criticism of contemporary thinking about the legitimacy of nation-states and the rules and assumptions governing thinking about secession, and then places this in a broader assessment of the blind spots that afflict contemporary approaches to international relations. This part of his argument is powerful, provocative and important. In the second part, Waters offers a new rule and set of criteria for secessionist movements. He sets this forth in reasonable terms and develops it carefully with an eye towards anticipated criticisms.

The second part of BOXING PANDORA is not as strong as the first. That is because making this argument presents a much more formidable challenge than demonstrating the illogic that underlies our understanding of the international system. However, this is not a gratuitous criticism. BOXING PANDORA is an important, courageous work that scholars of and practitioners in international affairs alike will find to be a provocative read and a welcome challenge to contemporary approaches to global politics.

Waters asserts from the outset that “secession” is nothing more than a manifestation – and, in some cases, a necessary prerequisite for the universally recognized right – of self-determination. While this was a largely “inchoate” notion until the early 20th century, the aftermath of the First World War “produced a rapid expansion of self-determination claims” (p. 21). While laudable, self-determination as envisioned by Woodrow Wilson was clearly a product of the era and grounded myopically in terms that recognized only ethnicity and nation-states. It was correspondingly incomplete, Waters argues, because it ignored the possibility that a people might not be easily identifiable as an existing nation or a recognized ethnic group. Instead, he argues, a people might manifest itself through democratic mechanisms (p. 25). [*105]

While self-determination was conceptually incomplete, it was recognized and applied in a remarkably inconsistent manner. Thus, while nations such as Austria and Hungary arose in the aftermath of the First World War, Kurds, to this day, remain stateless (pp. 143-44). Accordingly, the contemporary system of nation-states essentially derives from a map drawn in the 1920s and is as ad hoc in nature as are the lines drawn by Sykes and Picot to sort out the Middle East at that time (Fromkin). Furthermore, this vision of the world was based on two irreconcilable principles: the promotion of decolonization and self-determination on the one hand and the equally firm insistence on the integrity of pre-existing national borders on the other (pp. 42-43). This built-in tension was exacerbated after the Second World War, he argues, when it was modified to support a renewed round of decolonization and self-determination—but only for “non-self-governing territories separated from the parent state” (p. 91). If you were a minority within the parent state or, alas, within one of those newly-freed colonies, you were out of luck because “while those who do not govern themselves must be freed from the dominion of others,” no other “others” were entitled to recognition (p. 91)

LIGHTS, CAMERA, EXECUTION: CINEMATIC PORTRAYALS OF CAPITAL PUNISHMENT

Vol. 30 No. 7 (August 2020) pp. 100 - 103

LIGHTS, CAMERA, EXECUTION: CINEMATIC PORTRAYALS OF CAPITAL PUNISHMENT by Helen J. Knowles, Bruce E. Altschuler, and Jaclyn Schildkraut. Lanham, MD: Lexington Books, 2019. 183 pp. Hardcover $83.32. ISBN: 978-1498579667.

Reviewed by Aaron R.S. Lorenz, Law & Society, Ramapo College. Email: alorenz@ramapo.edu.

LIGHTS, CAMERA, EXECUTION is an innovative and creative resource for those interested in better understanding the complexities surrounding society’s desire for vengeance and capital punishment. The authors, Knowles, Altschuler, and Schildkraut, pen an outstanding summary and assessment of historical and contemporary times related to the death penalty. Using filmmaking, the authors effectively persuade the reader that capital punishment in America should not be viewed as isolated to specific crimes or defendants.

The authors use nine films to connect the deep and overlapping issues of capital punishment in the United States. Chapter by chapter, they explore these films: MURDER IN COWETA COUNTY, THE THIN BLUE LINE, DEAD MAN WALKING, THE LIFE OF DAVID GALE, A LESSON BEFORE DYING, THE GREEN MILE, THE CHAMBER, LAST DANCE, AND MONSTER’S BALL. The analysis is probing. Setting the tone of the book, their study of MURDER IN COWETA COUNTY provides the reader with the vision of “southern justice.” The 1983 made-for-TV-movie starring Andy Griffith and Johnny Cash was based on the 1948 murder of Wilson Turner, a sharecropper who was murdered by the white, wealthy landowner, John Wallace. In 1950, Wallace became the richest man executed and the first in Georgia convicted based on the testimony of black men. Knowles, Altschuler, and Schildkraut establish the tone for the book as they begin to address the intersection between race, class, and capital punishment. Their treatment of the murder concludes with an anecdote about the grandson of the sheriff from 1948 who notes about the road named after John Wallace, “Maybe it teaches people a lesson…the more they realize that everyone is accountable under the law” (pp. 31-32).

The author’s treatment of THE THIN BLUE LINE shows the difficulty in detailing Errol Morris’ 1988 documentary which tells the story of a wrongful conviction and overzealous prosecutor [*101] against the backdrop of the history of the electric chair and gas chambers in Nazi Germany. In their discussion of DEAD MAN WALKING, they once again address the complexity of capital punishment. The film is based on the book by Sister Helen Prejean, a Roman Catholic Sister who befriended a death row defendant played by Sean Penn. The film is lauded for its behind-the-scenes look at the process leading up to the execution. Just as Justice Marshall discussed in FURMAN V. GEORGIA (1972), the history of capital punishment in America speaks to the finality of it. He writes in his concurrence, “While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error” (p. 408). Knowles, Altschuler, and Schildkraut use this notion to connect DEAD MAN WALKING and its final scenes with the idea that executions do not ultimately provide closure. That ambiguity is what legal scholars focus on, what the director Tim Robbins focused on, and why LIGHTS, CAMERA, EXECUTION is so effective in considering the emotional and legal components of the death penalty through the lens of film.

One of the strengths of this book is the authors’ ability to simultaneously connect each of the nine films while also isolating them to provide their warranted attention. In their discussion of THE LIFE OF DAVID GALE, they provide detailed analysis of a unique Hollywood tale about a philosophy professor who is sentenced to death for killing a fellow capital punishment opponent. Given the profession of the lead character played by Kevin Spacey, it is no surprise that THE LIFE OF DAVID GALE is especially philosophical in its discovery of truth and justice as it relates to the death penalty. Knowles, Altschuler, and Schildkraut detail Gale’s conviction as emblematic of the legal conundrum that there is no single truth. Instead, the law, particularly the processes involved in capital punishment, struggles with assessing the accuracy of witnesses testifying or more broadly debated, precisely what “beyond a reasonable doubt” means. This is one of the strengths of the book, a masterful detailing of legal concepts debated for generations but placed against the backdrop of film. This is akin to the work of John Brigham in THE CONSTITUTION OF INTERESTS when he argues that it is the law that makes something what it is. The work of Knowles, Altschuler, and Schildkraut follows that constitutive notion in that norms simply become less clear, particularly because they are unconventional.