LIVES IN THE BALANCE: ASYLUM ADJUDICATION BY THE DEPARTMENT OF HOMELAND SECURITY

Vol. 24 No. 12 (December 2014) 558-562

LIVES IN THE BALANCE: ASYLUM ADJUDICATION BY THE DEPARTMENT OF HOMELAND SECURITY, by Andrew I. Schoenholtz, Phillip G. Schrag, and Jaya Ramji-Nogales. New York: New York University Press. 2014. 286 pp. ISBN: 9780814708767.

Reviewed by Banks P. Miller, School of Economic, Political and Policy Sciences, University of Texas at Dallas. Email: millerbp@utdallas.edu

LIVES IN THE BALANCE is an analysis of U.S. Asylum Officers (AOs) and their adjudication of asylum claims. Schoenholtz et al., previously authors of a study of decision making in the asylum bureaucracy, compile a database of 380,000 asylum cases decided between October 1996 and June 2009. This study is important because it both sheds light on a relatively unexamined aspect of asylum adjudication and, more importantly, because the authors have made their data available, thus likely sparking further investigation. The work examines two major questions. First, what has the effect of Congress’ imposition of a one-year deadline on filing for asylum been with respect to AO adjudication? Second, what factors explain variation in the rate at which asylum is granted over-time and between and within asylum offices?

To answer these questions the authors present largely descriptive statistical information. (Their findings are buttressed by regression analysis that is available on a replication website.) Frequently they derive their expectations from previous surveys of AOs by the Department of Homeland Security (DHS) and the Federal Law Enforcement Training Center. The blending of quantitative and qualitative evidence is a strength of the book and allows the authors to offer insights that are novel and sometimes counterintuitive. This is an important first step. Future scholars will be able to build on this work.

In 1996 Congress imposed a one-year filing deadline on asylum applicants. Essentially, an applicant needed to file for asylum within one year of arriving in the United States or face having the application automatically denied. The reasoning for at least some members of Congress who supported the change was that failure to file sooner indicated a lack of credibility for the claim. The law provided a number of exceptions that AOs (and others) might grant to the absolute bar of the deadline, including, for instance, changed circumstances in the applicant’s home country. The authors examine the effect of the deadline and the adjudication of claims for exceptions to the bar on claims after one year in chapters 3 through 5. This is a significant analysis because previously we knew very little about how the deadline mattered in asylum adjudication for AOs.

LAW IN A COMPLEX STATE: COMPLEXITY IN THE LAW & STRUCTURE OF WELFARE

Vol. 24 No. 12 (December 2014) 554-557

LAW IN A COMPLEX STATE: COMPLEXITY IN THE LAW & STRUCTURE OF WELFARE, by Neville Harris. United Kingdom: Hart Publishing. 2013. 310 pp. Paperback $50.00, ISBN: 978-1-84946-445-1.

Reviewed by Victoria A. Redd, University of Florida Levin College of Law Journal Offices. Email: reddva@law.ufl.edu.

As retirement approaches people start to think about Social Security (a federal program created to provide benefits to retiring citizens), and begin to ponder the question: “Is there going to be enough money?” In fact, the Annual Gallup Economy Poll listed it as Americans’ top financial concern (Dugan 2014). Social Security began in 1935 to provide social insurance and benefits to those who needed assistance due to inadequate or no income. Similar social welfare programs exist in other countries (Wise 2012).

Those interested in questions around the law and structure of welfare can feed their desire to know more about this topic by reading Neville Harris’s LAW IN A COMPLEX STATE: COMPLEXITY IN THE LAW & STRUCTURE OF WELFARE, which imparts a great deal of knowledge regarding the social welfare system. LAW IN A COMPLEX STATE focuses on the United Kingdom and also examines other social welfare systems. Harris, a professor of law at the University of Manchester since 2000 and the Editor of the JOURNAL OF SOCIAL SECURITY LAW, has written an analysis of the complexities involved in the social welfare system and government entities. His book takes the complex legal framework that makes up a social welfare program and tries to explain this “rule-based area” of government with “examples of simplification measures and strategies that have been adopted” (p. 30). Harris takes special care to show how social rights give an entitlement to citizens who have fundamental needs (p. vi).

Harris separates his analysis into three parts. He starts with a definition of the welfare system in Chapter 1 entitled “Complexity and Welfare” exploring the problems of welfare, especially in regard to the context of the law (Harris uses the word complexity in reference to how “a state is organized to conduct its functions” and how policy is managed) (p.1). The following two Chapters (2-3) begin with “The Design, Structure and Management of the Welfare System,” (p. 34) discussing the reasons why the system is so complex and ends with “Rules and the Measurement of Complexity” (p. 76) discussing the “measurement of complexity [and] an effective basis for it” or simply the rules of the system. The final section includes Chapters 4-6 assessing the complexity of the welfare system and how it affects the lives of those it seeks to help. This complexity that Harris is examining are the claimants’ trials that have to be faced—the “customer journey,” or the “revision, review, or appeal process” (pp. 117, 142, 189).

IS ADMINISTRATIVE LAW UNLAWFUL?

Vol. 24 No. 12 (December 2014) 549-553

IS ADMINISTRATIVE LAW UNLAWFUL?, by Philip Hamburger. Chicago: University of Chicago Press. 2014. 635pp. Cloth $55.00. ISBN 978022611659.

Reviewed by Johnathan O’Neill, Department of History, Georgia Southern University. Email: joneill@georgiasouthern.edu.

This book is a wholesale indictment of administrative law in the United States. Philip Hamburger argues, at length and in great detail, that administrative law usurps both legislative and judicial authority. It is nothing less than the recrudescence of the royal prerogative – a form of absolute power. Much of contemporary governance has thus returned to what the English and American constitutional traditions had evolved to constrain. The relentlessly fundamental criticism in this bracing work is rooted in Hamburger’s usual prodigious research and deep understanding of constitutional principles.

Given that the question of the book’s title is answered so affirmatively, Hamburger’s careful treatment of the rule of law is pertinent. He discards the common locution “rule of law” as too “vague” and “minimal” to be “relied upon to illuminate what is at stake” (p. 7 note d). He prefers “rule through and under law” because it better captures how liberty is secured when law is understood not only as a limit on state action, but also as the specialized structures, methods, and procedures which the state must abide by when it acts. It was the experience of prerogative power outside this richer understanding of law which led England, and more particularly the U. S. Constitution, to clothe with legal authority only the actions of legislatures and courts. Hamburger rightly emphasizes that “lurking not far below was the Lockean reasoning about consent” (p. 23). Power otherwise exercised might be an edict or a command or a proclamation, but it cannot be law. The core of Hamburger’s position – and the depth of his criticism – is evident when he writes: “If government must rule through the law and through the judgments of the courts, it cannot rule through acts that are not law or court judgments. The difference between the constitutional and the administrative regimes thus ultimately rests on the distinction between law and mere state power – between the regular law by which Americans govern themselves and the irregular administrative commands by which the government imposes its will on them” (p. 24).

The book is divided into five parts. Part I on “extra-legal legislation” recounts resistance to the royal prerogative in seventeenth-century English constitutional history. Included are the confrontation between James I and Sir Edward Coke; Star Chamber and its abolition; the suspending and dispensing powers; and such famous cases as those dealing with “ship money” and the “forced loan.” In each instance Hamburger explicates how the nub of the conflict pitted the established principles and procedures for legislating against the monarchy’s attempt to have its way. Part II on “extra-legal adjudication” similarly traces how prerogative courts violated common law due process rights through their inquisitorial and ex officio proceedings. For example, they permitted self-incrimination, official accusation based on secret information, and the use of general warrants. Parts I and II of the book each contain a chapter establishing the close resemblance of the modern administrative state to these bygone methods of the “preconstitutional past” (p. 10). [*549] From this perspective, modern administrative agencies are not courts and their officeholders are not judges as understood in the Anglo-American legal tradition. Hamburger agrees that “in the words that Frederick Maitland applied to the Star Chamber, an agency tribunal is ‘a court of politicians enforcing a policy, not a court of judges administering the law’” (p. 237). Accordingly, Hamburger would appear to be profoundly unconvinced by the argument of Daniel R. Ernst that the rule of law was truly preserved in the relaxed conception of it necessary to accommodate the administrative state (Ernst 2014). Hamburger does not cite this recent book, but engages several of Ernst’s articles which preceded it. Also in Part II is an extended and devastating treatment of the weak simulacrum of due process, and often its outright violation, under the Administrative Procedure Act (1946). This part also critically examines the various forms of informal agency rulemaking and interpretation that have the force of law, and condemns agencies’ biased use of “waivers.”

WHAT DO LAWYERS DO? AN ETHNOGRAPHY OF A CORPORATE LAW FIRM

Vol. 24 No. 12 (December 2014) 547-548

WHAT DO LAWYERS DO? AN ETHNOGRAPHY OF A CORPORATE LAW FIRM, by John Flood. 2nd edition. New Orleans: Quid Pro Books. 2013. 195pp. Hardback $51.88. ISBN: 978-1610272100. Paper $34.99. ISBN: 978-1-610-271-615.

Reviewed by Mark C. Miller, Department of Political Science, Clark University. Email: MMiller@clarku.edu.

Socio-legal scholars remain very interested in what lawyers actually do in their daily work. Some examples include the article by Sarat and Felstiner (1986) on the work of divorce lawyers, followed by the book also on divorce lawyers by Mather, McEwen, and Maiman (2001). One of the most interesting volumes in this area is the recent book edited by Levin and Mather (2012) that explored the work of lawyers in a wide variety of practice areas. Levin and Mather argue that the work of lawyers differs greatly from practice area to practice area. As we learn more and more about the daily work of lawyers, John Flood’s latest book is a welcome addition to the literature, although Flood’s approach has been available to scholars for quite a long time. Flood’s 2013 book appears to be an updated summary of his Ph.D. dissertation from Northwestern University (1987) entitled “Anatomy of Lawyering: An Ethnology of a Corporate Law Firm.”

Flood’s latest book states that it is the second edition, but apparently the first edition is the over 900 pages of his Ph.D. dissertation. This new, second edition is a much shorter and much more concise summary of his research findings from his dissertation. In the 1980s, Flood embedded himself into a large Chicago corporate law firm to see what the lawyers actually did in their daily lives. The firm hired him as an attorney so that he could overcome any attorney\client privilege problems with his research. Thus, he was able to observe how the lawyers conducted meetings with their clients, how the lawyers interacted with other lawyers in the firm, how they interacted with paralegals other support staff, and he was able to see how the lawyers spent their time each day. This research was groundbreaking, and it is quite useful that his findings are now available in a condensed version.

Socio-legal scholars are by now quite familiar with the concept of the two hemispheres of the legal profession as described by Heinz and Laumann (1982) and updated in Heinz et al. (2005). What Flood does is explore in great detail the workings of lawyers in one hemisphere, or in other words in a large corporate firm. He finds that the work of litigators is very different from the vast majority of lawyers in these large firms because most lawyers spend their time keeping their clients out of court. The litigators are different, as implied by Pierce (1995) in her work on large corporate firms. Powell (2013) also comes to similar conclusions in her book on working in a large law firm. Thus, Flood explores the differences among different types of lawyers all employed by one of the nation’s mega law firms in the 1980s.

THE NEW TERRAIN OF INTERNATIONAL LAW: COURTS, POLITICS, RIGHTS

Vol. 24 No. 12 (December 2014) 542-546

THE NEW TERRAIN OF INTERNATIONAL LAW: COURTS, POLITICS, RIGHTS, by Karen J. Alter. Princeton, NJ: Princeton University Press. 2014. 450 pp. Paperback $35.00, ISBN: 9780691154756. Hardcover $95.00, ISBN: 9780691154749.

Reviewed by Edward Gordon, Honorary Vice President, American Branch, International Law Association. Email: egordon23@gmail.com.

The premise of Karen Alter’s new book is that the creation of some two-dozen international courts (ICs) since the end of the Cold War has given ICs an influence in international and domestic politics not enjoyed by their predecessors. She seeks to explain how and why this change has come about, why ICs today are better able to imbed international law in domestic legal orders, and how international law itself has become a different kind of resource, one that is able to mobilize a transnational constituency to tap into the potential strength of previously unempowered actors, acting outside the scope of electoral politics and diplomacy, whose interests are advanced by constraining states and promoting the rule of law, irrespective of the intent of states, individually or collectively.

The book is organized into three parts. The first presents an historical overview of the evolution of ICs, separating its phases into three “critical junctures”: the Hague Peace Conferences of 1899 and 1907 (where the idea of a permanent international court was discussed for the first time at a diplomatic level); the end of World War II; and the end of the Cold War.

The second part is designed to facilitate development of a structure of analysis, by showing that the roles ICs play provide a key to their most effective use. Each of the four chapters in this section of the book is devoted to one of the four categories into which Alter divides these roles: i.e., dispute settlement, administrative review, enforcement, and constitutional review.

RIGHTS AND COURTS IN PURSUIT OF SOCIAL CHANGE: LEGAL MOBILIZATION IN THE MULTI-LEVEL EUROPEAN SYSTEM

Vol. 24 No. 11 (November 2014) 539-541

RIGHTS AND COURTS IN PURSUIT OF SOCIAL CHANGE: LEGAL MOBILIZATION IN THE MULTI-LEVEL EUROPEAN SYSTEM, by Dia Anagnostou (ed.). Portland, OR: Hart Publishing. 2014. 240 pp. Cloth: $84.70. ISBN: 9781849463904.

Reviewed by David Schultz, Department of Political Science, Hamline University. Email: dschultz@hamline.edu.

Legal mobilization and caused-based lawyering is a frequent topic of analysis among American public law scholars, asking questions about the capacity or the legitimacy of the courts to achieve social change. Scholars as diverse as Muir (1973), Scheingold (1978), Sorauf (1976), Horowitz (1977), Cooper (1988), Rabkin (1989), Feeley and Rubin (1998) and Rosenberg (1991) have examined the impact that Supreme Court decisions have had on social change. Additionally, McCain (1994) and Schultz (1998) have addressed the role of interest groups and lawyers in affecting litigation and using the courts for policy change. Largely the conclusion is that the courts, lawyers, and social groups can achieve some change under the right conditions. However, little research has been done by either American or non-American scholars on legal mobilization and caused-based lawyering in Europe, especially that involving the European Union. Dia Anagnostou’s book is a good first step in addressing this gap.

Anagnostou’s edited volume takes as its intellectual starting point Stuart Scheingold’s THE POLITICS OF RIGHTS and to a lesser extent Gerald Rosenberg’s THE HOLLOW HOPE. Both of these works raised questions about the efficacy of rights-based claims to achieve social change and, especially with Rosenberg, the ability of groups to mobilize and use the courts, especially, the Supreme Court, to achieve social change. Both books provided guarded suggestions regarding the conditions and circumstances under which going to the court made sense to make policy or create or vindicate rights. Both Scheingold and Rosenberg write within the context of an American culture fixated on pursuing a rights-based strategy. Cultural and governance changes in Europe have created new opportunities for legal mobilization or a rights-based strategy.

Anagnostou notes how Europe, especially those within the jurisdiction of the European Union (EU) or the Council of Europe, have witnessed a rights revolution. This revolution has occurred for several reasons. First, the expansion of the EU, especially to many formerly communist countries, has brought with it expanded new rights. This is also the case with their membership within the Council of Europe. But even for Western European and the historically non-communist countries, both the EU and the Council of Europe have fostered a new rights culture. The Council of Europe, the European Convention on Human Rights (ECHR), and with that, the jurisdiction of the European Court of Human Rights (ECtHR), has meant that diverse parties can now challenge sovereign laws as violations of the ECHR. Moreover, recent adoption of human rights provisions in the EU similarly means that parties can either challenge in domestic courts or in European Court of Justice (ECJ) alleged human rights violations. While not trying to force the metaphor, membership in the EU and the ECHR is almost like the Bill of Rights [*539] incorporation movement in the United States. It opened up the federal courts to rights adjudication, while at the same time forcing state courts to hear federal claims. Incorporation and the federalization of rights claims in the U.S. eventually lead to changes in State constitutions, thereby creating multiple venues and forums to pursue rights strategies.

After the introductory chapter, the book unfolds into three sections. Chapters two to four examines language rights of minorities across Europe (chapter two) with chapter three looking at legal mobilization to protect those rights in Navarre, Spain. Chapter four looks to how the left and lawyers mobilized to protect rights in France since 1968. Part two of the book focuses on the use of European courts as opportunities for legal mobilization, with attention given to domestic sovereign courts as well as the ECtHR and ECJ. Chapter six is a case study of Greece and how its courts and lawyers had to respond to changes in rights adjudication for migrants and asylum seekers. One of the major conclusions of this chapter is the impact that EU and Council of Europe membership had on issues such as jurisdiction and the ability of individuals in Greece to use that nation’s judiciary to litigate claims. Finally, part three explicates the role of NGOs in legal mobilization and rights strategies, with chapter seven looking at rights during armed conflict, chapter eight examining gay rights and chapter nine drawing general conclusions for the entire book.

Europe offers multiple contexts and opportunities for legal mobilization for rights. These occur at different levels of government. There is almost a E.E. Schattschneider aspect to rights litigation in Europe, with different groups socializing, shrinking or expanding the location of adjudication depending on a host of factors, including whether domestic courts have broad enough concepts of standing to allow for a case to be heard, what the issue is, how receptive local courts are to it, or whether there is sufficient publicity locally or across Europe for a case to receive a sympathetic hearing. It might not quite be accurate to say that litigants forum shop but that appears to be the case. While one conclusion of the book is that trans-European rights is driving a convergence of legal norms and creating new opportunities for rights claims, national differences still fragment many claims. Some countries still are less hospitable to some litigation and despite pressures from the ECtHR and the ECJ, who the litigant is, what is being litigated, and where, make a difference.

One also learns from this volume that we must look for the efficacy and impact of legal-mobilization and rights-strategy in different ways. The general tendency of research in the United States has been to focus on the U.S. Supreme Court and ignore lower federal and state courts. Another failure has been to assume litigants always seem intent on using the law and courts for singular and similar purposes and not understanding the different ways groups and individuals mobilize for a variety of objectives. The strength of this book is an appreciation of the multiplicity of approaches and strategies among parties. It also points to change as occurring in how local law is altered, jurisdiction affected, or otherwise how policy change occurs in an often dialogical approach across multiple levels and institutions, even beyond the courts.

What one takes away from this volume are several important lessons. First, the [*540] changing legal structure in Europe is creating new opportunities to mobilize for rights. Second, legal strategies work but only up to a point. Third, as the editor indicates, legal mobilization and rights litigation is relatively new to much of Europe and it is going through a learning curve. This learning curve affects strategy and goals. Finally, the book offers powerful comparisons and perhaps even lessons for the literature and researchers who have focused almost exclusively on the U.S. One weakness of the book is that it does not as substantively as it could draw on the U.S. scholarship on this topic,,at times almost making it look like no one has examined the topic of rights mobilization in a federal context. But the parallels and contrasts between the U.S. and Europe offer enticing possibilities for future research in terms of what both can learn from one another and what differences are significant in terms of making a difference in describing the efficacy of using the courts for social change.

REFERENCES

Cooper, Phillip, J. 1988. HARD JUDICIAL CHOICES: FEDERAL DISTRICT COURT JUDGES AND STATE AND LOCAL OFFICIALS. New York: Oxford University Press.

Feeley, Malcolm M. and Edward L. Rubin. 1998. JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURT’S REFORMED AMERICA’S PRISONS. Cambridge: Cambridge University Press.

Horowitz, Donald 1977. THE COURTS AND SOCIAL POLICY. Washington, D.C. The Brookings Institution.

McCann, Michael. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

Muir, William. 1973. LAW AND ATTITUDE CHANGE. Chicago: University of Chicago Press.

Rabkin, Jeremy. 1989. JUDICIAL COMPULSIONS: HOW PUBLIC LAW DISTORTS PUBLIC POLICY. New York: Basic Books.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Scheingold, Stuart A. 1978. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. New Haven: Yale University Press.

Schultz, David, 1998. LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang Publishing.

Sorauf, Frank J. 1976. WALL OF SEPARATION: THE CONSTITUTIONAL POLITICS OF CHURCH AND STATE. Princeton: Princeton University Press.

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© Copyright 2014 by the author, David Schultz.