Vol. 26 No. 5 (September 2016) pp. 103-105

DISQUALIFYING THE HIGH COURT: SUPREME COURT RECUSAL AND THE CONSTITUTION by Louis J. Virelli III. Lawrence, Kansas: University Press of Kansas, 2016. 275 pp. Cloth $39.95. ISBN: 978-0-7006-2271-9.

Reviewed by Debra Lyn Bassett, John J. Schumacher Chair and Professor of Law, Southwestern Law School. Email: dbassett@swlaw.edu.

Okay, stop me if you have heard this one. A guy, the named defendant in a lawsuit, offered an all-expenses-paid vacation to one of the jurists who would be hearing his case. The jurist accepted the invitation, traveling to the vacation site with the named defendant via Air Force Two. Everyone had a great time—well, everyone except a third guy who was accidentally shot by the named defendant during the trip. Oh—did I mention this was a hunting vacation? When the named defendant’s lawsuit subsequently came before the jurist’s court, the jurist insisted that he could properly participate in the decisionmaking process, and when criticized, issued a withering memorandum in which he dismissed anyone who questioned his impartiality as being unreasonable and uninformed. The case, of course, was CHENEY v. UNITED STATES DISTRICT COURT. Welcome to recusal and the United States Supreme Court.

Recusal is the term typically used to describe a member of the judiciary’s personal determination to withdraw from participating in the decisionmaking process in a particular case. Recusal guidance is found in a combination of statutes, ethics rules, case law, and ethics opinions. Yet even with that guidance, it is sometimes unclear whether recusal is mandated. When a trial-level judge elects to recuse, other judges are available to hear the case; when a trial-level judge declines to recuse, procedures exist to review, and potentially reverse, that determination. However, at the level of the United States Supreme Court, the guidance, the availability of substituted decision makers, and the potential for review of a recusal decision are all dramatically different. In a hypothetical world, each of these differences could be modified: more thorough and detailed guidance could be written; substituted decision makers could be drawn from retired Supreme Court Justices or from the federal appellate courts; procedures for reviewing a recusal decision could be created. The sticking point is that U.S. Supreme Court Justices are not merely federal judges, but rather, they comprise a co-equal branch of government. It is this “sticking point” that is the particular value and contribution of Professor Virelli’s book.

The book opens with the various historical approaches to recusal generally, from the Code of Justinian through Blackstone’s COMMENTARIES, and from the U.S. Congress’s first recusal statute in 1792 through its most recent statutory amendments in 1974. The book then delves deeper, offering a review of recusal specifically at the U.S. Supreme Court, from Chief Justice John Marshall to present day. Readers will recognize many of the controversies discussed, but might not have been aware of some of the detailed information presented. At this point, the book’s focus turns to the constitutional implications of Supreme Court recusal, undertaking a two-part analysis: first, whether recusal is part of the Article III judicial power, and second, whether the constitutional separation-of-powers doctrine prevents Congress from legislating in the area of the Supreme Court’s recusal requirements and determinations.

The book presents an historical summary on separation of powers and disputes between branches of government—addressing historical evidence from the Constitutional [*104] Convention and ratification debates, the longstanding recusal practices employed by the Supreme Court, and whether other constitutional provisions might be applicable to recusal (such as the Exceptions Clause, the Necessary and Proper Clause, and the Impeachment Clauses). Professor Virelli ultimately concludes that “Congress may not control the substance of the justices’ recusal decisions because doing so would unconstitutionally interfere with the Court’s inherent power to decide cases properly before it” (p. 94). This is the book’s central and most significant contribution. I, and many others, have mentioned separation of powers concerns in our writings on recusal, but the book’s systematic and detailed analysis of this issue is exceptionally helpful, regardless of whether the reader agrees with the conclusion.


Vol. 26 No. 5 (September 2016) pp. 100-102

JUSTICES ON THE BALLOT: CONTINUITY AND CHANGE IN STATE SUPREME COURT ELECTIONS, by Herbert M. Kritzer. New York: Cambridge University Press, 2015. 297pp. Cloth $99.99. ISBN: 978-1-107-09086-6.

Reviewed by Shane A. Gleason, Department of Political Science, Idaho State University. Email: gleashan@isu.edu.

Herbert Kritzer's latest book, JUSTICES ON THE BALLOT: CONTINUITY AND CHANGE IN STATE SUPREME COURT ELECTIONS, is perhaps the most exhaustive study of state supreme court elections to date. Kritzer's work distinguishes itself by its breadth, both in terms of substantive scope and data. Substantively, it explores a broad range of topics related to state supreme court elections. While such a sweeping approach necessarily keeps the treatment light, it creates an excellent primer for scholars just beginning to study state supreme court elections and a valuable review peppered with new insights for those who have long studied the topic by virtue of the 67 year period which the study and its data encompass. Kritzer thus outlines the contours of state supreme court elections over a broad period of time. Overall, this book represents a valuable contribution to the study of state supreme court elections; but not as an end in and of itself. As a result of painting with a broad brush on a relatively blank canvas with an incredibly detailed and broad dataset, Krtizer's work is properly thought of as a springboard from which to launch future studies on state supreme court elections.

Kritzer begins his study with a broad yet simple research question: what changes have occurred in state supreme court elections in the post-war period? If changes have occurred, Kritzer seeks to explain why changes appear in some states but not others. These questions are addressed in broad domains of state supreme court elections that could easily have been books in their own right. Specifically, he examines election competitiveness, electoral partisanship in both contested and retention elections, and the role of money in judicial elections. Throughout the book, Kritzer stresses there is no single account of how judicial elections play out; they are highly dependent on context. This context involves the way in which justices are selected as well as the accompanying culture and institutional context of the state. Kritzer shows this via both statistical analysis and case studies. This combination is exceptionally effective as it allows him to highlight broad patterns in the data while also discerning where one or two outlying cases might be coloring the results.

The case studies vividly illustrate Kritzer's argument. Importantly, especially if a scholar is considering assigning a chapter or two for an undergraduate class on state politics or judicial behavior, they are exceptionally engaging. While case studies are peppered throughout the book and cover topics as diverse as name recognition and differing campaign finance rules, the best exemplar is Chapter One. This chapter, entitled “A Tale of Two States,” highlights the institutional similarities and judicial election differences between the Minnesota and Wisconsin high courts. These two courts should be similar based on the characteristics of their respective states, yet whereas Minnesota high court elections are relatively non-partisan affairs, Wisconsin’s elections are increasingly characterized by a high level of partisanship. Tracing recent happenings on the court, and the campaign trail to get to the court, Kritzer argues the differences between these two courts can be attributed to the types of cases on each court’s docket. From the late-1990s onward, the Wisconsin Court made a number of highly controversial decisions which spilled over into interactions between the justices. Thus, the Wisconsin court has far more partisan elections than its Minnesota counterpart. After setting the stage with the excellent Minnesota and Wisconsin case study, Kritzer turns to an overview of judicial elections beginning with Vermont's 1777 provisions for electing justices. He then broadly traces high [*101] court selection mechanisms to the present day. This is followed with an exhaustive 60 page overview of the literature on state supreme court elections which he augments with a handful of regression models. These models are discussed briefly in the main text of the chapter, but their specification is relegated to the appendix and the description of variables is short and vague. Not discussing the models and their specification in the main text serves to muddy his overall argument, as the reader is left wondering how exactly Kritzer reaches his conclusions. This aside, these first three chapters provide a comprehensive account of state supreme court elections, both in terms of their history and existing scholarship.


Vol. 26 No. 5 (September 2016) pp. 96-99

THE JURY IN AMERICA: TRIUMPH AND DECLINE, by Dennis Hale. Lawrence, Kansas: University Press of Kansas, 2016. 464 pages. Cloth $39.95. ISBN: 978-0-7006-2200-9.

Reviewed by Jack E. Call, Professor of Criminal Justice, Radford University. Email: jcall@radford.edu.

The right to trial by jury is generally viewed as one of the fundamental rights of Americans. It is the only right guaranteed in both the original Constitution and the Bill of Rights. THE JURY IN AMERICA is a detailed treatment of the right in both historical and political contexts by Dennis Hale, a political scientist.

Hale begins by examining the evolution of juries in pre-colonial England and in the American colonies. By the Thirteenth Century, English royalty had come to recognize that their hold on power would be strengthened if the judicial system was perceived by the populace as fair. Thus, in 1166, Henry II issued the Assize of Clarendon, giving juries the authority to decide if a person accused of a crime should be permitted to choose whether his guilt would be determined by ordeal (dropped into water while tied up to see if he sank or floated) or by compurgation (bringing in witnesses to testify as to the character of the accused). In 1215, King John signed the Magna Carta, which included a provision requiring legal disputes to be resolved through “judgment by peers.” In that same year, the Fourth Lateran Council (convened by Pope Innocent III) banned the participation of priests in ordeals, effectively bringing that practice to an end, and creating a decision-making void that, in England, was filled by use of juries.

In the colonies, juries developed somewhat differently in each colony. Hale provides detailed descriptions of juries in Virginia, New York, and Massachusetts to demonstrate this fact. Juries – including grand juries – sometimes mitigated the harshness of actions taken by the Crown by refusing to convict in cases brought under British legislation viewed by colonists as oppressive. Jury verdicts were also increasingly viewed as final, so that other government agencies could not overturn them. Nevertheless, in many cases, magistrates or justices of the peace possessed authority to act without juries. Even when juries existed, they were often seen by ordinary citizens as instruments of the government, especially in less serious cases. But as the colonies moved closer to seeking independence from England, the jury began to be perceived as an instrument – at least on occasion – of protection from English excesses.

Hale moves on to a description of the evolution of the “republican jury” (from the mid-18th century into the late 19th century). The republican jury was characterized by an increased involvement of lay persons in the judicial process. Juries had to follow a judge’s instructions on the law, but they also possessed the power to bring their own understanding of the law to a given case. Criminal juries came from the “vicinage” of the crime because jurors should be tried by men who knew their character. As Hale paraphrases Tocqueville: “the jury mitigates the tyranny of the majority by improving citizens’ understanding of both their duties and their rights, teaching them civic responsibility and curbing the natural human temptation toward tyranny” (p. 92). Grand juries acted on their own sometimes to investigate matters of public significance and even occasionally issued reports that included recommendations to government officials.


Vol. 26 No. 5 (September 2016) pp. 91-95

THE COURT AND THE WORLD: AMERICAN LAW AND THE NEW GLOBAL REALITIES by Stephen Breyer. New York: Alfred A. Knopff 2016. Cloth: $27.95. 382 pp. ISBN: 978-1-101-94619-0.

Reviewed by Mark Rush, Director of International Education and Stanley D. and Nikki Waxberg Professor of Politics and Law, Washington and Lee University. Email: rushm@wlu.edu.

Associate Justice Breyer has written a thoughtful and important book about the role of the Supreme Court, the nature of 21st century politics and the impact of technology, terror and other developments on the scope of U.S. constitutionalism and law. This work is more than a continuation of the many debates Breyer had with Justice Antonin Scalia. In those exchanges, Scalia contended that foreign law had no place in the interpretation of the U.S. constitution or its application to statutes. By his lights, the question of incorporating foreign law was merely an extension of the interpretivism/noninterpretivism debate describe by John Hart Ely many years ago in DEMOCRACY AND DISTRUST. Breyer disagreed.

In THE COURT AND THE WORLD, Breyer makes his case not in response to Scalia and the interpretivism debate. Instead, he maintains, essentially, that the interpretivisim debate is no longer relevant. Whether we like it or not, the impact of U.S. law extends far beyond the United States. As well, foreign law and foreign affairs impact U.S. politics and lawmaking. As a result, when addressing constitutional challenges to laws or executive actions, the Supreme Court cannot pretend to do so inside of some sort of domestic constitutional “clean room” in which there are no foreign influences or consequences. Those influences and consequences are there. To pretend that they are not would be to stick one’s head in constitutional sand.

Breyer divides the book into four parts, each of which addresses a particular question (4-5):

Part I: “How can the Court effectively protect basic liberties in the face of security threats?”

Part II: “Should American statutes be understood to open the doors of American courts to foreign victims of human rights abuses?”

Part III: “How is the Court to interpret treaties that concern unfamiliar subjects, such as the domestic relations law of foreign countries, or competing international dispute-resolution systems, such as international arbitration tribunals, or international administrative regimes regulating, say, health, safety or the environment?”

Part IV: “How can American judges learn from other [nations’ judges]?”

In addressing these questions, Breyer approaches constitutional law as an organic subject. This is more than simply “living” constitutionalism. As he notes at the start of section II:

“We have seen how the effort to preserve individual liberties has led to a change in the Court’s approach to the law. I have suggested that this evolution owes as much to the changing nature of the world as to the predictable cycles of self-correction that one might expect to see in a system of constitutional government.” (p. 91. Emphasis added)


Vol. 26 No. 5 (September 2016) pp. 87-90

THE FORCE OF LAW, by Frederick Schauer. Cambridge, Massachusetts: Harvard University Press, 2015. 239 pages. Cloth $35.00. ISBN: 978-0-674-36821-7.

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

Law professor Frederick Schauer’s THE FORCE OF LAW is a self-described “intervention” in the legal philosophy debate about the role of coercion in the law (p. ix). His goal is to “challenge an idea” that he sees as “predominant” in legal philosophy since H.L.A. Hart published his vastly influential legal positivist book THE CONCEPT OF LAW in 1961: the idea that the “very nature of law lies elsewhere than in its coercive capacity” (p. ix). Schauer thinks that legal philosophy has, in this regard, become out of touch with common sense reality, where the ordinary person’s experience of the law is defined by the threat of coercive force: “That a feature of law that is so important and salient to almost everyone except legal philosophers is so marginal to the jurisprudential enterprise says something about the enterprise of philosophy of law” (p. x). The book is devoted to defending the centrality of coercion to the law.

It is however unclear precisely what thesis Schauer is defending, for he gives numerous distinct versions of the relationship between coercion and law. These range from the tautological (it is a “mistake to underestimate the role of coercion” (p. 85)) to the fairly obvious (coercion is “often necessary” to secure compliance (p. 75)) to the very strong (coercion is “central to the very idea of law” (p. 165)). Schauer also invokes both a descriptive and normative version of the claim (Law is “commonly and valuably” coercive (p. x)). Schauer further tells us that sanctions “seem crucial” in motivating compliance (p.76), that coercion “occupies center stage” in explaining obedience to the law (p. 148), and that coercion is “not all of law,” but “must be numbered among those features” that need to be explained by a satisfactory theory of law (p. 85). It is thus difficult to say just exactly what his position is: the obviously true claim that coercion is an important part of law, the far more problematic claim it is the “key” or “center stage” of law, the empirical claim that it is what is most salient to the average person, or the claim it is in practice essential to gain compliance.

Nor is it clear just what position Schauer’s book is aimed against. Sometimes he states the opposing view as the very strong thesis that coercion is “irrelevant to explaining the nature of law” (p. ix) or that it is “not essential” to the idea of law, and so “loses its philosophical or theoretical interest in explaining the nature of law” (p. 3). At other points he presents a much weaker and vaguer thesis, for example that coercion is “downplayed” by legal philosophers (p. x) or that “the role of force in law is “marginalized” (p. 2).

Figuring out just what the precise position Schauer is criticizing is further complicated by his ambiguity as to just who holds this view, or how many of them there are. The major target in the book seems to be Hart, who Schauer repeatedly returns to as the source of this pernicious view. Yet from the very beginning of the book, Schauer indicates his uncertainty whether in fact to attribute it to Hart himself. He writes: “I question Hart’s view” and then wonders whether coercion is as irrelevant “as perhaps Hart and certainly his legions of followers have assumed” (p. ix). So the real target seems to be the “legions” of followers and successors of Hart (p. 2), rather than Hart himself (in fact, Hart certainly did not believe that coercion is “irrelevant” to the law). Elsewhere he attributes the position to [*88] a “host of legal theorists” (p. 24) or “many legal theorists” (p. 37), and even says it has become the “conventional wisdom” in legal philosophy, though quickly qualifying the claim by saying “at least in some circles of academic philosophy” (p. 10). Alternatively, it is an unidentified group of “legal philosophers” that have, “for more than half a century” questioned whether force and coercion are as important to law as the ordinary person believes (p. 2).


Vol. 26 No. 5 (September 2016) pp. 85-86

THE SHADOW OF THE GREAT CHARTER: COMMON LAW CONSTITUTIONALISM AND THE MAGNA CARTA by Robert M. Pallitto. Lawrence Kansas: University Press of Kansas, 2015. 234 pp. Cloth $29.95. ISBN: 978-0-7006-2091-3.

Reviewed by Walter J. Kendall III, Professor Emeritus, The John Marshall Law School. Email: 7kendall@jmls.edu.

The Magna Carta is an 800 year old Anglo-Norman document written in Latin. It represents a very short lived peace treaty between King John and his Barons. What if anything of it is alive and operative in constitutional debate today? Robert Pallitto’s IN THE SHADOW OF THE GREAT CHARTER: COMMON LAW CONSTITUTIONALISMS AND THE MAGNA CARTA is one of several recent books revisiting the contemporaneous history of and/or appraising the present relevance of Magna Carta. Dan Jones’ MAGNA CARTA: THE BIRTH OF LIBERTY focuses on the events leading up to and immediately following the sealing of the original Magna Carta in June of 1215 at Runnymede. Similarly and in much more scholarly depth and detail so does David Carpenter’s MAGNA CARTA. The most entertaining, but nonetheless fundamentally sound of such books is 1215: THE YEAR OF MAGNA CARTA by Danny Danziger and John Gillingham. A book that offers a history from the bottom up, a “people’s” history is THE MAGNA CARTA MANIFESTO: LIBERTIES A COMMONS FOR ALL by Peter Linebaugh.

Pallitto’s book is both a chronological series of short essays on how the U.S. Supreme Court has relied on the Magna Carta in developing its understanding of individual rights, and an argument that the best method of Constitutional interpretation, is “common law constitutionalism.” Pallitto has adopted the understanding of the concept introduced by David Strauss in his seminal article (Strauss 1996) and defended in his book on the living constitution (Strauss 2010). Pallitto offers the following from Strauss as a summary of the attributes of common law constitutionalism: “Intellectual humility, a sense of the complexity of the problems forced by our society, a respect for the accumulated wisdom of the part, and a willingness to rethink when necessary and when consistent with those virtues.” (p. 185-86)

There is discussion both at the beginning and the end of the book of the ongoing and intense debates about constitutional interpretation in the academy and more importantly between the justices of the Supreme Court. For instance, Justice Scalia famously argued for an originalist understanding of the text. Justice Breyer, on the other hand, equally argues for an approach that considers the Constitution as a "living" document subject to updating by the Court in light of current circumstances and understandings. As I understand it, Pallitto's approach is more flexible and open than that of Justice Scalia, but more constrained by prior Court decisions than Justice Breyer's "living Constitution".

Pallitto links the Magna Carta in separate chapters to the questions of rights as understood in the 17th and 18th centuries; slavery; federal common law; the Warren Court rights revolution; the Rehnquist Court’s narrowing interpretation of habeas corpus; and the war on terror. For example, in chapter 2 Pallitto discusses English and early American constitutional thinking which recognized the relevance of experience to interpretation. In this period the Court recognized the dual purposes of the Constitution; one to protect the liberty of people, and the other to limit “natural” freedom so as to create a functioning society. In Chapter 3 the Court’s approach to the slavery question illustrates its efforts to balance the literal text which implied the legitimacy of slavery with experience and evolving views of human dignity; the Dred Scott decision not with standing.


Vol. 26 No. 4 (August 2016) pp. 82 – 84

VOTERS’ VERDICTS: CITIZENS, CAMPAIGNS, AND INSTITUTIONS IN STATE SUPREME COURT ELECTIONS, by Chris W. Bonneau and Damon M. Cann. Charlottesville: University of Virginia Press, 2016. 163pp. Cloth $40.00 ISBN: 978-0813937595

Reviewed by Todd A. Curry, Department of Political Science, University of Texas, El Paso. Email: tacurry@utep.edu

Chris Bonneau and Damon Cann are familiar names for those individuals who are interested in the research on state courts, and specifically, judicial elections. They, like many of us in the field, have in part oriented their research agenda around a simple premise: when someone important or influential says something with absolutely zero empirical backing, design a study to examine if they are correct. In the sub-field of state judicial politics, with the myriad of ways states select their judges, there is no dearth of commentators, spectators and even participators who regularly make their opinion known as to the perceived deficiencies of the selection mechanism they like least. This provides good, if common, fodder upon which to build numerous research projects. However, what differentiates this book, and makes it exceedingly valuable, is that instead of relying on aggregated data which is exceedingly common when studying state courts, Bonneau and Cann examine familiar questions at the micro level, through individual data.

While aggregate level data have led us to numerous insights about state courts, there has been difficulty demonstrating causality because of the lack of micro level data. For example, researchers have demonstrated that ballot roll-off was on average, highest in states that use retention elections (when compared to partisan and non-partisan elections), but the lack of individual level data prevented them from claiming that it was retention elections that were causing ballot roll-off.1 That is, without individual level controls on individual level data, we could only examine the occurrence in the aggregate, unable to demonstrate that an institution which provides no information to the voter in the form of party identification and simultaneously denies the voter the choice of an alternative candidate systematically causes ballot roll-off.

As such, the true strength of this book is the wealth and variety of the data used to examine judicial elections. The authors use both the 2010 and 2012 Cooperative Congressional Election Study (CCES), experiments carried out with a diverse body of undergraduates, and experiments from Mechanical Turk (Mturk). These data allow the researchers to examine the individual causes of vote choice and ballot roll-off, and the effects of campaign cues, including incumbency, all under a rich level of institutional variation. It provides for a robust book, which may border on being a bit data heavy.

The book begins with an introductory chapter that describes the methods of judicial selections used within the states, with a primary focus on judicial elections. Three types of election mechanisms are used to staff high courts in the states. Partisan elections are identical to congressional elections, with candidates being chosen in a party primary to then face off during the general election. Non-partisan elections share many similarities with partisan elections, however, they lack a significant cue to voters, namely the appearance of partisan identification on the ballot. Retention elections are different. Retention elections are defined by a lack of contestation. Candidates run in what amounts to a referendum on their judgeships, with the only options available to voters are a yes or no vote to retain.


Vol. 26 No. 4 (August 2016) pp. 78 – 81

JUDGING JUDGES: VALUES AND THE RULE OF LAW, by Jason E. Whitehead. Waco: Baylor University Press, 2014. 253pp. Cloth $49.95. ISBN: 9781602585256.

Reviewed by Keith J. Bybee, College of Law and Maxwell School of Citizenship and Public Affairs, Syracuse University. Email: kjbybee@syr.edu.

We often praise those judges we admire as being impartial champions of the rule of law. The problem, as Jason Whitehead notes in his engaging book, is that we “have no systematic and rigorous way to distinguish between judges who uphold the rule of law and judges who undermine it” (p. 3). We prize legal fidelity in our judges yet we have no widely agreed
upon means of determining what fidelity to law is. As a result, we are left with the suspicion that “the difference between good and bad judges is a matter of personal preference and that the rule of law is a mere platitude designed to disguise the preference as a principle” (p. 3). Whitehead seeks to better define how judges sustain the rule of law, and to counter the suspicion that the only distinction between good and bad judging is the preference for a particular outcome.

As a first step toward these goals, one might argue that we should examine judicial decisions to see if they conform to legal requirements. A rule-of-law judge would be one whose rulings appear to have been dictated by existing law. Whitehead rejects such an “outside in” approach on the grounds that it overlooks judicial motivation. Two judges may arrive at the same outcome in a given case, but one judge may do so on the basis of sincere belief about what the law demands while the other may merely supply a legal rationalization for a position determined on extra-legal grounds. The crucial difference between such judges is not in the conclusions that they reach, but in the different sensibilities and values that each judge brings to the case. Thus, to accurately appraise the judiciary and its relationship to the rule of law, Whitehead calls for an “inside out” assessment of judicial beliefs and ideals.

Whitehead frames his inside-out assessment in terms of social practice. He sees judges as situated in immersive, long-term interactions with the professional legal community and with legal language. The purposes judges acquire through their community and doctrinal engagements are pursued according to shared standards of excellence—a common core of virtues that judges absorb as they enact and advance fidelity to law. All parts of the judicial social practice are bound together into a way of life: it is through the community they inhabit, the language they use, and the standards of excellence they follow that judges generate a meaningful sense of obligation and mission.

Whitehead argues that individual experiences with judicial social practice vary, and “not every judge internalizes the attitude of fidelity in the same way or to the same extent” (p. 26). In particular, Whitehead argues that the differences in overall attitude fall into four different value types: Formalist, Good Faith, Cynical, and Rogue. Whitehead devotes one chapter to each value type (these four chapters constitute the bulk of the book). In each chapter, Whitehead elaborates and examines the components of each value type by drawing on informal, confidential interviews that he conducted with 24 state and federal appellate judges in three different states. The many quotations that Whitehead pulls from his interviews are quite interesting, and they add real depth to his analysis.


Vol. 26 No. 4 (August 2016) pp. 75 – 77

NAVIGATING THE JUNGLE: LAW, POLITICS, AND THE ANIMAL ADVOCACY MOVEMENT, by Steven C. Tauber. New York: Routledge, 2016. 212 pp. Cloth $155.00. ISBN: 9781612051284. Paper $49.95. ISBN: 9781612051291.

Reviewed by Paul M. Collins, Jr., Department of Political Science, University of Massachusetts Amherst. Email: pmcollins@legal.umass.edu.

Scholars have long been interested in understanding social movement litigation. Early studies, such as Vose (1959), tended to focus primarily on the effectiveness of organizational litigation in terms of case outcomes. When Scheingold (1974) suggested that interest group litigation was based on a “myth of rights,” scholars began to recognize the limits of using litigation to achieve social change in their analyses of legal mobilization (e.g., McCann 1994). This included focusing not only on how interest group litigation influences legal outcomes, but also on less obvious form of influence, such as public support for a movement.

In NAVIGATING THE JUNGLE: LAW, POLITICS, AND THE ANIMAL ADVOCACY MOVEMENT, political scientist Steven C. Tauber makes an outstanding contribution to our understanding of social movement litigation. Focusing on the battle over animal rights and welfare, Tauber documents the struggles that animal advocacy groups face in using the court system to promote the well-being of animals. In addition to looking at how litigation by animal advocacy groups shapes judicial decision making, Tauber investigates how this form of lobbying influences media coverage of animal advocacy issues. By combining rich qualitative analyses with statistical models, Tauber demonstrates the myriad means by which political forces shape the development of animal law.

As the book explains, Tauber has played a role in the animal advocacy movement as a member and advisor to the Nonhuman Rights Project, a group whose goal is to establish legal rights for animals. This has provided the author with somewhat unusual access to several of the movement’s key actors. Though direct involvement with a movement always has the potential to shape the conclusions drawn from the study of that movement, this involvement has not colored the interpretations of the data presented in the volume. Rather, Tauber lets the data guide his understanding of the success of the movement.


Vol. 26 No. 4 (August 2016) pp. 71 – 74

JUDGING POSITIVISM, by Margaret Martin. Oxford and Portland, Oregon: Hart Publishing, 2014. 185pp. Cloth $77.00. ISBN: 9781849460996.

Reviewed by John H. Bogart, University of Utah S.J. Quinney School of Law and Principal, Telos VG, PLLC. Email: Jbogart@telosvg.com.

The task Prof. Martin sets for herself in JUDGING POSITIVISM is an assessment of Joseph Raz’s work in philosophy of law. The book is provocative and interesting throughout. It is well-written, not unduly burdened with footnotes or terminological quibbles, and is, as promised, appropriate for both students and academics. The book succeeds in a number of ways: It provides a general account of the Raz’s arguments spread over a number of books written at different times. The exposition of the objects of analysis is generally clear and fair. The footnotes, which are judicious, provide the necessary references to specific works by Raz and to key works of Raz’s interlocutors. Prof. Martin’s work repays the effort of careful reading.

JUDGING POSITIVISM has seven chapters. The first five chapters are organized around central texts by Raz (Chapters 1, 4, and 5) or key ideas of his philosophy of law (Chapters 2 and 3), although these lines are, in practice, blurry. Chapter 1 covers Practical Reason and Norms and the introduction of law as a set of exclusionary reasons. Chapter 2 focuses on the sources thesis (whether a norm is a legal norm depends on its source) with significant discussion of the theory of judicial reasoning. Chapter 3 focuses on the claims of the autonomy or authority of law. Chapter 4 returns to authority and exclusionary reasons as developed in The Morality of Freedom. Chapter 5 discusses the degree to which Raz’s theory regarding source thesis, autonomy, and authority of law can or do fit together. Chapter 6 is a departure: Professor Martin offers up some thoughts about an alternative way of conceiving of the methodology and problems of philosophy of law. The final chapter reads as a summary of the preceding six chapters tied to an exchange between Raz and Gerald Postema.

Martin’s project is an expressly critical one, in both senses. She aims to illuminate fundamental defects in Razian legal positivism, to show that Raz’s account collapses of its own inconsistencies. This will open the door to some form of natural law theory, although the content of that theory is outside the scope of Prof. Martin’s book. Let me turn now to sketching some of Prof. Martin’s central arguments and conclusions.


Vol. 26 No. 4 (August 2016) pp. 65 – 70

PROPERTY RIGHTS AND NEOLIBERALISM: CULTURAL DEMANDS AND LEGAL ACTIONS, by Wayne V. McIntosh and Laura J. Hatcher (eds.). Farnham, UK: Ashgate, 2010. 234pp. Hardback $134.95. ISBN: 978-0-7546-7892-2.

Reviewed by Daniel Tagliarina, Department of Government and Politics, Utica College. Email: dctaglia@utica.edu.

Neoliberal efforts to reform government and property rights have been with us for a while now. KELO V. CITY OF NEW LONDON (2005) has become a neoliberal touchstone regarding the claimed irresponsible use of governmental power in violation of individual property rights. The KELO ruling sparked a widespread backlash that includes: actions by at least 42 states to change their eminent domain laws via statute or constitutional amendment (p. 71), close to 1,000 law review articles (based on a non-discerning LexisNexis search), a book-length journalistic account by Jeff Benedict titled LITTLE PINK HOUSE (2009), and a forthcoming feature-length film also titled LITTLE PINK HOUSE (Somin 2014). Clearly, the case touched a nerve. Moreover, it provided mobilization fodder for neoliberal causes that found willing partners in the Bush administration, leading to vast deregulation efforts that, in some people’s estimation, contributed to the Great Recession beginning in 2007 (e.g., Braedley and Luxton 2010).

While legal scholars generally agree that KELO did not mark any real departure from previous eminent domain precedent (p. 66), the case still stands out as an important moment in the neoliberal effort to strengthen individual property rights. I begin with KELO, because, to a large extent, that is where PROPERTY RIGHTS AND NEOLIBERALISM begins. While the volume is not only about KELO, the case does play a central role in many of the chapters, either as the explicit focus—as in Thorpe et al.’s and Wilkerson’s chapters—or an implicit role—as in Becher’s and Brisbin, Hunter, and Leyden’s chapters. In constructing the edited volume, McIntosh and Hatcher explicitly focus on property rights in the context of changing regulatory schemes, which is a focus that heretofore has been missing in the literature (p. 4). The chapters in this volume are all well-written, and draw upon quality evidence and relevant scholarship as they examine how law is changing in response to various neoliberal reform efforts. Moreover, the chapters contribute to the central theme by examining the effects of institutional contexts and cultures on the actual legal mobilization around property rights when what constitutes property—and how it should be conceptualized—is a moving target. The volume’s underlying cohesion is around our understanding of contemporary property rights.

PROPERTY RIGHTS AND NEOLIBERALISM is divided into three parts. Part I consists of four chapters, and is organized around questions of legal mobilization, eminent domain, and property rights. Part II offers a comparative analysis to the volume with three chapters that explore neoliberal efforts to create property rights where they did not previously exist (Henderson’s and Boggio’s chapters) or to limit governments’ ability to regulate property (Clark and Harrington’s chapter). Part III contains three chapters that takes a broader look within the United States context to see how non-judicial actors and contexts shape our understanding of property and the law surrounding property rights. These chapters, collectively address what the editors identify in the introduction as “three primary issues: (1) the contours and characteristics of property rights mobilization(s); (2) the degree to which property rights movements have influenced development [*66] of law in demonstrable ways; and (3) the broader cultural, social and economic implications of modern-era property rights litigation and legal mobilizations” (p. 4-5). While neoliberalism is one of the central organizing concepts for the edited volume, not all of the authors offer clear, comprehensible definitions of what they understand neoliberalism to be. This is not surprising as, in the words of the editors, neoliberalism is “notoriously difficult to define” (p. 2). To aid the uninitiated, the editors draw on Harrington and Turem (2006) to define neoliberalism as, “‘the (re)emergence of the market and economic rationale as the dominant organizing logic in society’” ((p. 2), quoting Harrington and Turem 2006, 204)).


Vol. 26 No. 4 (August 2016) pp. 62 – 64

LATINOS AND THE VOTING RIGHTS ACT: THE SEARCH FOR RACIAL PURPOSE, by Henry Flores. Lanham, MD: Lexington Books, 2015. 318pp. Cloth $100.00 ISBN: 0739190458.

Reviewed by Mark Kessler, Department of Multicultural Women’s and Gender Studies, Texas Woman’s University. Email: mkessler@twu.edu

This impressive and important volume explores some of the ways in which law has been used in recent times to disempower minority voters and distort democracy in the United States. Specifically, it focuses on the role that race and racism played in redistricting plans and the passage of a voter identification law in the state of Texas in 2011. Both of these actions were challenged in federal courts as violations of the Voting Rights Act and provide opportunities to examine them in relation to voting rights litigation more generally.

The book’s author, Henry Flores, is a Distinguished Research Professor of Political Science at St. Mary’s University in San Antonio, Texas. Flores brings to his analyses almost thirty years of experience as an expert witness in voting rights cases. The core of this book is based on his recent experiences serving as expert witness for the Mexican American Legal Defense and Educational Fund, charged with the responsibility to use his knowledge of social science to address the issue of racial purpose or intent in redistricting plans and the voter identification law. Flores provides an insider’s view of this litigation and produces a richly detailed and nuanced narrative based on voluminous documentary evidence related to both cases.

Flores skillfully places recent voting rights litigation in a useful legal-historical context, focusing especially on the Supreme Court’s decision in 1977 in VILLAGE OF ARLINGTON HEIGHTS V. METROPOLITAN DEVELOPMENT CORPORATION. In that case, the Court announced that government action was not discriminatory and in violation of the Fourteenth Amendment’s Equal Protection Clause if it merely has a “disproportionate impact” on a racial group. Successful arguments that government action is discriminatory, the Court suggested further, must show that the government acted with a “racially discriminatory intent or purpose” (xii). The author suggests that the documentary evidence—evidence that included email communications among the parties—provides clear, compelling, and direct evidence of a racial intent and purpose in Texas’ redistricting plan. However, the documents for the voter identification law that he closely read include no clear and direct discussion of race among participants.

In response to the standard announced in ARLINGTON HEIGHTS, Flores, both as expert witness and as scholar, is interested in exploring the possibility that racial intent and purpose exists, where explicit reference to race is missing in the documentary evidence. This interest leads the author to develop an innovative methodological approach, relying on both quantitative and qualitative techniques, to examine racial dynamics in the consideration and passage of the voter identification law. Flores’ compelling approach to exploring racial intent and purpose in the law focuses on social, political, and discursive histories, relations of power and privilege, the use of coded, indirect references to race, political behavior, and legislative maneuvers to demonstrate how a racial purpose underlies the voter identification law in Texas.