THE COLLISION OF POLITICAL AND LEGAL TIME: FOREIGN AFFAIRS AND THE SUPREME COURT’S TRANSFORMATION OF EXECUTIVE AUTHORITY

Vol. 29 No. 2 (February 2019) pp. 23-26

THE COLLISION OF POLITICAL AND LEGAL TIME: FOREIGN AFFAIRS AND THE SUPREME COURT’S TRANSFORMATION OF EXECUTIVE AUTHORITY by Kimberly L. Fletcher. Temple University Press, 2018. 296pp. Hardcover $91.28. ISBN-10: 1439914923. ISBN-13: 978-1439914922.

Reviewed by Gbemende Johnson, Department of Government, Hamilton College. Email: gxjohnso@hamilton.edu.

One hallmark of 20th century and current politics is the expansion of presidential power and the increased use of executive unilateral action. Use of unilateral tools, such as executive agreements, to facilitate and manage diplomatic policy has increased substantially since the U.S. Supreme Court established the constitutionality of these agreements in UNITED STATES v. BELMONT. Between 1939-1989, executive agreements composed approximately 95 percent of all international agreements (Krutz and Peake 2009, 42). A public that increasingly holds the president responsible for the safety and economic performance of the country arguably incentivizes presidents to act autonomously where possible. Interestingly, scholars have given less attention the U.S. Supreme Court’s role in delineating and shaping the boundaries of executive power in foreign affairs. Fletcher’s theoretically and contextually rich analysis of U.S. Supreme Court jurisprudence in foreign policy disputes serves as a much-needed contribution to this dialogue.

Fletcher’s analysis focuses on U.S. Supreme Court litigation from Franklin Delano Roosevelt to George W. Bush, with detailed reference to the foreign affairs jurisprudence during the pre-modern presidency (Chapter 2). Fletcher explains that the balance of foreign affairs authority in favor of the president vis-à-vis Congress became rooted with the ruling in UNITED STATES V. CURTISS-WRIGHT EXPORT CORPORATION (1936). Early decisions such as BAS V. TINGY (1800) and TALBOT V. SEEMAN (1801) saw the Court affirming Congress’s power to initiate hostilities and “restate Congress’s primary role in authorization of war” (p. 6). However, the Court’s holding in CURTISS-WRIGHT that the president could establish arm embargos in accordance with broad Congressional statutory authorization marked a “doctrinal shift,” with the Court establishing a new “constructed constitutional order for executive supremacy for executive supremacy in foreign affairs” (p. 41). In addition to confirming that Congress has the capacity to confer the president with broad authority to act in foreign disputes, the CURTISS-WRIGHT decision institutionalized the “sole organ” doctrine allowing the president to wield plenary authority in foreign affairs, and substantial discretion on whether and when to act (p. 27). This favorable ruling was also significant given that the Court had recently ruled that components of National Industrial Recovery Act violated the Constitution’s non-delegation doctrine (p. 31). Fletcher’s argument explores the continued trajectory of judicial deference to the executive through a detailed exposition of significant cases such as KOREMATSU v. UNITED STATES (1944) and DAMES & MOORE V. REGAN (1981).

Fletcher situates her analysis within an American Political Development (APD) and historical institutionalist framework, and her discussion engages with APD interlocutors such as Kahn and Kersch (2006), Orren and Skowronek (2004), and Whittington (2007). Path dependency necessarily biases the status quo. However, a key component of Fletcher’s argument is that the U.S. Supreme Court is uniquely positioned, to shape, shift, and, if necessary, redirect the balance of authority between the president and Congress in the course of foreign policy leadership and management. Fletcher notes, “If the Court chooses to alter or overturn precedent, it does so with the knowledge that the trajectory of the previously established course of path taken by [*24] the actors involved in the dispute might be forever changed” (p. 11).

As political actors operate within “political time” (Skowronek 1997) to legislate and manage foreign affairs crises, Fletcher explains that the Court also occupies “legal time,” which includes the constitutional questions and controversies that emerge as the president navigates conflicts. These questions hold significant implications for the nation’s understanding of the juxtaposition between executive power, national security, and civil liberties, and undoubtedly bear on the political discourse of other institutional actors (p. 19). When faced with legal disputes such as those at the center of CURTISS-WRIGHT and KOREMATSU, Fletcher contends that a key consideration of the Court is whether the justices accept the president’s framing of the foreign dispute and, thus, the propriety of the challenged executive action. This consideration accompanies what Fletcher terms the Court’s “geopolitical” construction, which includes factors such as the nature of the conflict (i.e. if there is a national emergency), foreign policy considerations, the constitutional provisions under question, and the political climate (pp. 15, 91). In judging the validity of executive action, the Court will also look to Congress for authorization (both explicit and implicit) underpinning the executive’s assertion of authority, per Justice Jackson’s “zone of twilight” framework in his YOUNGSTOWN concurrence. Even if the authorization is not explicit, the lack of an explicit congressional restriction on the executive’s course of action can be, in some instances, taken as tacit approval or consent of executive action and autonomy (Chapter 5). However, the Court is willing to rebuke an executive whose management of foreign affairs drifts too far into domestic politics (Chapter 4) or seems to challenge the authority underlying judicial supremacy (Chapter 6).

ROUTLEDGE HANDBOOK OF JUDICIAL BEHAVIOR

Vol. 29 No. 2 (February 2019) pp. 20-22

ROUTLEDGE HANDBOOK OF JUDICIAL BEHAVIOR, by Robert M. Howard and Kirk A. Randazzo (eds). New York: Routledge, 2018. 518pp. Hardback $235.00. ISBN: 9781138913356.

Reviewed by Lisa M. Holmes, Department of Political Science, The University of Vermont. Email: Lisa.M.Holmes@uvm.edu

The newly edited volume of ROUTLEDGE HANDBOOK OF JUDICIAL BEHAVIOR by Robert Howard and Kirk Randazzo is dedicated to the memories of Harold Spaeth and Donald Songer as “pioneers in judicial behavior.” This is a fitting tribute, in part because of how Howard and Randazzo seek to position this book as a contemporary, comprehensive assessment of the state of the judicial behavior field, which has built upon the work of scholarly pioneers such as Spaeth and Songer. The influence of judicial behavior pioneers is reflected most directly in some of these chapters, such as the one on “The Courts of Appeals,” written by Susan Haire, Reginald S. Sheehan, and Ali S. Masood, all students of Songer. Throughout the book, however, the chapter authors endeavor to place their assessment of judicial behavior starting with the foundational work done by the field’s pioneers, while assessing how our knowledge has evolved over time, with some attention also given to what questions or concerns remain unanswered. Similarly, in their introductory chapter to this edited volume, Howard and Randazzo point to THE PUZZLE OF JUDICIAL BEHAVIOR, Larry Baum’s 1997 assessment of the state of the judicial behavior field. Howard and Randazzo adopt and build on Baum’s earlier assessment of the key areas of scholarly inquiry in this field. With this book, Howard and Randazzo endeavor to provide “the most up-to-date examinations and analyses that we have on judicial behavior” (p. 2), in addition to specifically highlighting potential future directions for the judicial behavior field.

The ROUTLEDGE HANDBOOK OF JUDICIAL BEHAVIOR is organized into four main sections, “representing the four major areas of judicial behavior research” (p. 2). The first section consists of overviews of the prevalent theories in the judicial behavior field (the Attitudinal Model, Legal Model, and Strategic Model), with later chapters dedicated to issues concerning efforts to measure attitudes and law. This is a fitting way to set the table for the sections to come. The opening chapters on the three competing models provide an excellent assessment of the past, present, and potential future directions of the three competing models of decision making. Less expected, but very much appreciated, were the chapters by Michael A. Bailey and Tom S. Clark on measuring ideology and law, respectively. As Howard and Randazzo acknowledge, “our ability to understand these competing factors is dependent upon accurate measurements of concepts such as attitudes and law” (p. 4), and it is appropriate and useful to provide an assessment of the past, present, and future scholarship on these critical aspects of the judicial behavior field as well.

Part two focuses on the U.S. Supreme Court, examining many of the central questions concerning judging by Supreme Court justices, including those related to legitimacy, selection of Supreme Court justices, opinion writing, and external influencers on judicial behavior. Given that research on the U.S. Supreme Court has historically dominated the judicial behavior field, the chapters in this section all have a lot of heavy lifting to do in terms of laying out the foundational work on each topic and succinctly summarizing the oftentimes-great amount of scholarship that has added to the field in the intervening decades. Even given the extent of the attention given to the U.S. Supreme Court by judicial behavior scholars, however, these chapters also succeed in pointing to unresolved questions that remain even in these relatively crowded parts of the judicial behavior field.

Section three turns its attention to judicial behavior research focusing on state and federal courts beyond the U.S. Supreme Court. [*21] Whereas the judicial behavior field has historically been dominated by research on the U.S. Supreme Court, the years since the publication of Baum’s THE PUZZLE OF JUDICIAL BEHAVIOR have seen a tremendous amount of work done on bringing the judicial behavior inquiry to other American courts. Perhaps most notable on this point is the chapter by Isaac Unah and Ryan Williams on specialized courts, which, as Unah and Williams note, were “virtually ignored” by most political scientists in the United States for much of the twentieth century (p. 280). The chapters in this section thread a nice balance between summarizing previous literature and highlighting the many questions that still remain to be answered with respect to judicial behavior on American courts other than the U.S. Supreme Court. For example, the chapter by Chris W. Bonneau and Heather Marie Rice (entitled “Judicial Selection it the States: A Look Back, A Look Ahead”) acknowledges that even with the recent explosion of high-quality research examining the selection of state court judges, “[t]he most pressing unanswered question has to do with the relationship between campaign contributions and judicial decision making” (p. 346).

CORPORATE TAXATION AND SOCIAL RESPONSIBILITY

Vol. 29 No. 2 (February 2019) pp. 16-19

CORPORATE TAXATION AND SOCIAL RESPONSIBILITY, by Axel Hilling and Daniel T. Ostas. Stockholm, Sweden: Wolters Kluwer Sverige AB, 2017. 169pp. Hardbound. $90.00/Euro 82.00. ISBN: 9789139114826.

Reviewed by Benedict Sheehy, School of Law and Justice, University of Canberra, ACT. Email: Benedict.Sheehy@canberra.edu.au.

The unassuming title does not do justice to this outstanding book. Axel Hilling and Daniel T. Ostas’s new book, CORPORATE TAXATION AND SOCIAL RESPONSIBILITY, makes a very significant contribution to the urgent issues of eroding global tax bases and massive multinational enterprise (MNE) profit shifting, and the critical debates in law, policy and politics that need to be brought together to address the issue. Through their intricate and carefully crafted arguments, Hilling and Ostas have produced a first-rate volume that is so sharply written, focused and consistently argued, that it reads more like novel than the work of scholarship that it is. In a mere 155 pages of text they not only introduce the concepts necessary to engage in the argument, but also lay out and argue even-handedly the parameters and major substantive issues in the whole law and policy space. This work is a major achievement in an area of increasing importance for global policy makers, tax professionals, judges and academics.

The book, set out in eight chapters, is divided roughly into two parts: the first part is on tax and the second on social responsibility and law. Tax can be daunting for those unfamiliar with its intricacies. However, Hilling and Ostas manage to take the bite out of tax by identifying the areas of law and policy specifically relevant and explaining them simply so that the reader is able to follow the analysis intelligently. They begin Chapter 2 with an explanation of tax policy, namely, the three reasons for tax: revenue raising, regulation of behavior and redistribution of wealth. These reasons operate, they argue, within the fundamental constraint of any government—that tax be seen as legitimate, itself a function of fairness and rule of law.

Hilling and Ostas examine the fairness of tax through the perspectives of legal philosophers in relation to taxation from the polar opposite perspectives of Rawls and Nozick. They next turn to Hart’s principle, quoting him directly: “‘When a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefitted by their submission’” (Hart 1955, p. 185). In its specific application to tax they argue that “fair taxation is measured with reference to the burden imposed on taxpayers… and their expectations of each other” (p. 37). This insight and its application provide a cornerstone and a common starting point for the arguments and evaluation throughout the rest of the book.

While fairness allows for a range of approaches, two facets of the rule of law create profound problems in this complex area. The first problematic facet is the necessity of certainty. Rule of law requires the law to be clear and precise so that citizens can know what is expected of them with reasonable certainty. In financial matters and particularly in tax, citizens must be able to order their affairs with certainty, and this includes dealing with potentially significant taxes. The second problem from rule of law arises from its important role in placing constraints on government action, and, in this case, the range of judicial discretion. In law, this doctrine is mobilized by narrow construal of statutes— [*17] a fundamental cannon of statutory interpretation. In practice, this works by interpreting a statute to limit government powers and in favor of maximizing citizens’ liberty. Thus, rule of law is a shield for citizens against capricious, overreaching government; however, in the case of tax statutes, rule of law becomes a sword in the hands of creative tax advisors whose questionable professional ethics combine with an overly technical approach to thwart government public policy objectives. As Hilling and Ostas put it, the rule of law is used “to circumvent the legitimate policy goals sought by the legislature and then tax courts feel unable to address that circumvention” (p. 21).

WHEN LAWYERS SCREW UP: IMPROVING ACCESS TO JUSTICE FOR LEGAL MALPRACTICE VICTIMS

Vol. 29 No. 1 (January 2019) pp. 12-15

WHEN LAWYERS SCREW UP: IMPROVING ACCESS TO JUSTICE FOR LEGAL MALPRACTICE VICTIMS, by Herbert Kritzer and Neil Vidmar. Lawrence: University Press of Kansas, 2018. 248pp. Cloth $45.00. ISBN: 978-0-7006-2585-7.

Reviewed by Jared Perkins, Department of Political Science, California State University, Long Beach. Email: Jared.Perkins@csulb.edu

In Herbert M. Kritzer and Neil Vidmar’s recent book, WHEN LAWYERS SCREW UP: IMPROVING ACCESS TO JUSTICE FOR LEGAL MALPRACTICE VICTIMS, the authors embark on a groundbreaking and comprehensive study of claims of malpractice by lawyers in the United States. By investigating the types of claims that are made and the resolution of those claims, the authors provide a portrait of the claims involving lawyers’ professional liability (LPL), or legal malpractice. Given the dearth of scholarship on malpractice litigation outside of the context of physicians, this study is an invaluable contribution to our understanding of the nature of malpractice by lawyers in America. The authors use a mixed-methods approach to consider several facets of LPL, including what factors contribute to legal malpractice claims, how the claims are handled by relevant actors like tort lawyers, insurance defense lawyers, and insurance companies, and the overall outcomes of these claims. In addressing these areas, the authors advance the theoretical argument that there are “two-hemispheres” in the world of legal malpractice: one focused on claims arising from legal work conducted for clients who are individuals or small businesses, and the other from claims that stem from work done for large corporations (p. 4). It is this theoretical argument, supported with ample evidence throughout the book, that is perhaps this book’s greatest contribution as it sheds much-needed insight onto the immense disparity in the access to justice available for victims of legal malpractice.

In Chapter 1, the authors begin by noting the relative paucity of research and scholarly attention devoted to legal malpractice, especially when compared to the literature on malpractice by physicians and surgeons. They then present their research question of investigating the nature of legal malpractice claims and outline the “two-hemispheres” argument for understanding these claims in the United States. This theory is based on the understanding that the kinds of cases handled by large law firms with mostly corporate clients are markedly different from those taken by legal practices that primarily serve individuals or small business. Naturally then, the kinds of mistakes and errors made by lawyers and the context of that potential legal malpractice varies along this fault line as well. This is an important distinction, and one the authors refer back to throughout the book, as it provides crucial insight into the causes of the disparity in access to justice for victims of legal malpractice between the two hemispheres. Legal practices serving large businesses are more likely to be insured, and thus lawyers are more likely to sue these firms as there is an entity that may pay out. Kritzer and Vidmar find that many plaintiffs’ lawyers are reticent about taking on uninsured lawyers and that many personal services sector lawyers do not carry insurance, leading to fewer claims and less successful claims against lawyers in this “hemisphere.” The authors conclude the chapter by outlining the difficulty in researching this topic, as data is difficult to obtain and tends to be patchy at best. Nevertheless, the authors were able to gather high-quality data from several sources, including insurance companies and state regulatory agencies, to help paint a vivid portrait of the state of legal malpractice and access to justice in the United States.

Chapter 2 contains ten illustrative case studies that help demonstrate the types of legal situations that give rise to legal malpractice claims. The authors divide the cases into two types based on the “hemisphere” of legal practice in which the case arose, with five cases being drawn as examples from the personal [*13] services sectors and the remaining five selected from the business or corporate legal services hemisphere. These cases illuminate the kinds of legal malpractice that lead to LPL claims, including missing a deadline, breach of fiduciary duty, negligence, and bad legal advice.

THE MYTH OF THE LITIGIOUS SOCIETY: WHY WE DON’T SUE

Vol. 29. No 1 (January 2019) pp. 8-11

THE MYTH OF THE LITIGIOUS SOCIETY: WHY WE DON’T SUE, by David M. Engel. Chicago: The University of Chicago Press, 2016. 248pp. Cloth $24.00. ISBN: 978-0-2263-0504-2. Ebook $18.00. ISBN: 978-0-2263-0518-9.

Reviewed by Aaron J. Ley, Department of Political Science, University of Rhode Island. Email: ajley@uri.edu.

If there is an incontrovertible truth to everyday Americans, it is the conventional wisdom that litigation is out of control and greedy plaintiffs and their lawyers are exploiting the tort system for their own gain. To students of the legal system, however, the flaws of this narrative have been exposed by an extensive body of socio-legal research showing it to lack merit. For scholars like David M. Engel, a Distinguished Service Professor at State University of New York at Buffalo Law School, the fundamental question is no longer whether there is an American litigation problem since the empirical research demonstrates that there clearly is not one. Rather, the mystery we are seeking to solve is the case of “the dog that doesn’t bark,” or why injury victims do not claim. Here, “the dog that does not bark” refers to a classic Sherlock Holmes tale of a mystery solved when it was learned during the investigation that a dog did not bark at the scene of a crime. That is because the perpetrator was known by the dog. Engel argues that to explain the lack of claiming by injury victims we should ask why, given the popular understanding that injury victims are habitual claimers, they choose to “lump” rather than to “claim.”

To explain the propensity of injury victims to “lump,” Engel develops a model that draws on work from a variety of disciplines, including “rehabilitation science, nursing, anesthesiology, and neuroscience” (p. 4). His model goes beyond the dominant theories of claiming that are grounded in economic and cultural explanations. According to the rational choice model which is based in economic theory, claiming occurs only after injury victims have carefully weighed all of the costs and benefits of asserting their claims. The cultural theory of claiming, on the other hand, explains that victims choose not to claim because powerful social norms deter it. Engel concludes that a new model of claiming is necessary because, while some support exists for these traditional models of claiming, they nevertheless fall short of capturing empirical reality (especially the rational choice model, which Engel finds to be more normative in nature).

Before introducing his model, Engel provides the reader with a brief guided tour of the existing literature on claiming behavior by personal injury victims, which allows him to introduce Felstiner, Abel, and Sarat’s (1980-1981) model that describes lumping as an alternative to naming, blaming, and claiming. It models the injury victim as being rationally motivated and as moving along a unidirectional series of linear decision stages that more commonly lead to lumping rather than claiming. To Engel, this model is “deeply flawed” because it is “an unrealistic image of injury and response that bears little relationship to injuries as they actually occur or to victims as they actually live, breathe, and cope with the dire consequences in which they find themselves” (p. 36). Engel proposes to overcome these theoretical flaws by focusing instead on the experience of injury while describing the non-linear character of decision-making that occurs in the aftermath of an injury.

The experience of an injury, for instance, may impose excruciating and debilitating pain that cause sensations of disembodiment while also requiring the consumption of pain medication that muddles thought processes. [*9] It is, moreover, common for injury victims to experience a personality change, which causes victims to withdraw from family and other social support systems. Rational and highly linear models of autonomous decision-making are undermined even further when considered alongside a wide body of psychology research demonstrating that our bodily sensations and interrelationships influence our nonconscious thinking and decision-making. To Engel, all of these observations make it “a mistake to imagine that the typical injury victim suffers damage to the body and then, in effect, refers the matter [of asserting a claim] to his or her brain for a conscious assessment and response. Instead, it is more accurate to imagine an organic interconnection of environment, body, and mind” (p. 54).

JUST MEDICINE: A CURE FOR RACIAL INEQUALITY IN AMERICAN HEALTHCARE

Vol. 29 No. 1 (January 2019) pp. 4-7

JUST MEDICINE: A CURE FOR RACIAL INEQUALITY IN AMERICAN HEALTHCARE, by Dayna Bowen Matthew. New York: New York University Press, 2016. 288pp. Cloth $35.00. ISBN 978-1-4798-9673-8

Reviewed by Leniece Titani-Smith, Department of Political Science, Jackson State University. Email: leniece.t.smith@jsums.edu.

In JUST MEDICINE Dayna Bowen Matthew investigates the sub-optimal health care and healthcare outcomes of people of color in the United States. She offers a descriptive and explanatory account that intersects neuroscience, social science and the law. Her work extends the discourse beyond access and affordability to include a salient but frequently overlooked factor in the poor health outcomes of minority patients: unconscious racism, also known as implicit bias. This book has three overarching goals: (1) highlight and emphasize the reality that unconscious racism “due to implicit biases is hidden, tolerated, and even excused, despite its destructiveness” (p. 54); (2) to demonstrate that unconscious racism is the key mechanism influencing the thinking, behavior, and interactions that produce health disparities in minority populations; and (3) to end and reverse the discriminatory attitudes, beliefs and conduct that cause disproportionate harm to the health of minorities, up to and including policy and legislation. Throughout the book, Matthew puts forth data and evidence, which are generated from interviews with physicians, nurses, and patients, which were part of a snowball convenience sample. The inclusion of national survey data on healthcare experiences would have added weight to the Biased Care Model and provided additional evidence of the disparity gap in treatment. However, the combination of neuroscience, social science, and legal research provides cogent evidence to advance the main arguments.

Matthew examines how implicit bias frames and disrupts the clinical encounter from pre- to post-clinical contact. For instance, implicit biases shape the clinical encounter in many ways, including how close to sit, eye contact, listening to the patient, answering questions, or offering relevant detailed information. Physicians’ implicit biases affect pain management, referrals or recommendations for treatments, tests or procedures, pediatric decisions and diagnoses, and treatment of manageable conditions. Although this book is about unconscious racism, it is not the author’s intent to label all physicians as racists. In fact, she asserts that most doctors are not bigots, nor are they aware of their personal contribution to health disparities among patients of color; further, neither are they aware that they are personally influenced by implicit racial biases. Although none accept the assertion that they might be guilty of implicit bias, research using the Implicit Association Test (IAT), demonstrates that most physicians possess some level of implicit bias toward people of color.

In Chapter 2, “Implicit Bias and Health Disparities,” Matthew reviews neuroscience research on implicit bias. She discusses the distinction between implicit bias and racism and defines implicit bias as the “attitudes, preferences, and beliefs about social groups that operate outside of human awareness or control” (p. 42). She relies on neuroscience research to explain how implicit bias is automatic, unconscious thought without intention and identifies the stages — Store, Identify, Retrieve, Activate, Form and Influence — of implicit bias in the subconscious mind (p. 40). Matthew also offers physiological evidence of how the brain processes implicit biases, and the cognitive processes that lead to bias. Her discussion of the measurement of implicit bias utilizes the IAT, a computer-based test that measures the time a person takes to sort photos of African American and European American faces and combinations of those facial images with selected pairs of positive and negative words. Scores closer to zero demonstrate a neutral preference toward African-Americans or Whites. Harvard Project Implicit researchers reported that they found “a strong implicit preference for white Americans [*5] over black Americans among all test takers including physicians who were white, Asian and Hispanic,” but not African-American (p. 45). Additionally, there is a discussion of heuristics and racial schema, and the useful but possibly destructive role of “sorting patterns” used for solving medical problems and making diagnoses.

A REALISTIC THEORY OF LAW

Vol. 29 No. 1 (January 2019) pp. 1-3

A REALISTIC THEORY OF LAW, by Brian Z. Tamanaha. Cambridge: Cambridge University Press, 2017. 208pp. Hardback $110.000. ISBN: 9781107188426. Cloth $34.99. ISBN: 9781316638514.

Reviewed by Joshua Turner, Department of Philosophy, Utica College; MAIR candidate, American University School of International Service. Email: jaturner1@utica.edu.

In one of the later chapters of his book, A REALISTIC THEORY OF LAW, Brian Tamanaha remarks that “Once a label and corresponding conceptual implications take hold... they are hard to dislodge” (p. 154). While speaking specifically of international law in this instance, it could be fairly applied to the entirety of what his book is attempting to achieve. Despite the use of “realistic” in the title, Tamanaha argues for what international relations theorists might call a constructivist view of law; that is to say one which is heavily influenced by both social and historical considerations. For Tamanaha, the “nature” of law is reflected in the meaningful actions of societies and people and, perhaps most importantly, could have been constituted differently (p. 80). Law, as it is currently viewed, is not a linear progression towards a destination that was necessary. To put it in Platonic terms, there is no ‘form’ of law which all things that wish to be law necessarily bend towards.

Tamanaha clearly expresses his objectives for the book early on, with a stated goal of “articulat(ing) a realistic theory of law, and more generally to demonstrate the significance to jurisprudence of theories that center on law in society” (p. 2). What people say and think about the law is of greater importance than what is actually written down on paper; this pragmatic and empirical approach to understanding law is the bedrock of what is to follow. Tamanaha calls this a “social legal theory,” which has its roots in the historical school of jurisprudence (pp. 12-24). He is also clear in pointing out that his is only one interpretation of social legal theory among many and that it is quite possible for two social legal theorists to have very different views on what constitutes it; this is a diversity found less often in the positivist or natural law interpretations (p. 29).

Thematically, the book has a good flow and progresses smoothly from foundations to more specific concerns. At no point does Tamanaha get “over his skis” and tackle issues that have not at least been touched upon in earlier sections. This approach of building from the ground up (much like his conception of law itself) again lends to the ease in reading what could otherwise be very convoluted and nebulous. While making his points, Tamanaha pulls no punches but is charitable to countering views. Arguments are always made in good faith and it does not seem as though he is taking the worst interpretation possible of those with which he disagrees.

Tamanaha describes a jurisprudential landscape dominated by two main branches of jurisprudence: an analytical or positivist perspective and the Law of Nature or natural law (pp. 12-13). The third prominent view, a historical one which was positioned directly against the universalism of natural law, would eventually become what we now call the social branch of jurisprudence. The empiricism of the Enlightenment, through the works of Montesquieu, Savigny, and Maine, among others (pp. 15-19), would greatly influence this branch of jurisprudence, with an emphasis on law as a “living organism” that must change with social norms and accepted practices. For Tamanaha, a potentially difficult aspect of engaging with social legal theory is that for many its tenants are often accepted as a kind of truism and thus it is not given the thought and academic rigor it deserves. From this beginning, what follows is a thorough examination of social legal theory and how it fits into the grander scheme of jurisprudence and how we think about law. Perhaps most interesting in this chapter is the juxtaposition of empirically based social science with philosophy in regards to their ability to identify universal truths, so far as they [*2] exist, about law. While Tamanaha effectively rebuts this notion in a later chapter, it remains a constant theme throughout the book. As is noted in a footnote (p. 36), while legal philosophers are quick to disregard the ability of social science to tell us what we ought to think about law, because it is limited to telling us what the predominant social thought regarding law of the time is, scientists have long been hostile to philosophy encroaching on what they increasingly see as their domain. Tamanaha makes clear that neither the social approach he posits nor those in the contemporary analytical school, can provide all the answers alone (p. 37).