PLUTOCRATS UNITED: CAMPAIGN MONEY, THE SUPREME COURT, AND THE DISTORTION OF AMERICAN ELECTIONS

Vol. 27 No. 2 (February 2017) pp. 39-41

PLUTOCRATS UNITED: CAMPAIGN MONEY, THE SUPREME COURT, AND THE DISTORTION OF AMERICAN ELECTIONS, by Richard L. Hasen. New Haven and London: Yale University Press, 2016. 256pp. Cloth $32.50. ISBN: 9780300212457. Paper $22.00. ISBN: 9780300223545.

Reviewed by Alex Keena, Department of Political Science, University of Richmond. Email: akeena@richmond.edu.

What are the dangers of money in American elections? How has the Supreme Court balanced the threat of political corruption with free speech? Can campaign finance law adequately promote the values of political equality and anti-corruption without infringing upon political speech? Richard L. Hasen explores these topics and others in his timely analysis of campaign financing in a post-CITIZENS UNITED world.

Hasen’s analysis is at once nuanced and accessible, and he provides a coherent and forceful argument for dramatic reform of federal campaign finance law based on a joint system of publicly-funded campaign vouchers along with maximum contribution limits. The result is a system that promotes, rather than represses, political speech by expanding access to campaign giving, and prevents the appearance of political corruption by imposing reasonable limits on individual contributions.

While Hasen’s argument is provocative and compelling, the strength of PLUTOCRATS UNITED is undoubtedly his analysis and assessment of the legal debate that has evolved on the topic of campaign finance law both within the courts and among reformers since the 1970s. As Hasen asserts, this debate has centered on the conflict between political corruption and free speech and has largely ignored the effects of campaign spending on political equality and fairness. Hasen traces this debate to the Supreme Court’s hostility toward political equality as a legitimate end for restricting political speech through campaign expenditure limits. Because the Court has appeared more sympathetic to campaign finance restrictions that serve the interest of promoting “anti-corruption” (at least until recently), the debate among reformers has centered on mitigating the supposed corrupting influence of money in elections.

But as Hasen persuasively argues, in avoiding the defense of political equality as a legitimate rationale for campaign restrictions and by doubling down on the goal of preventing corruption (or the appearance thereof), supporters of campaign finance reform have overlooked the most troubling consequences of unrestricted political spending: its unequal effects on political access and influence. To this end, Hasen challenges the core assumption, which is often repeated by reformers and politicians on the left, that money corrupts politicians and “buys” elections. In Chapter 2, he presents a systematic and comprehensive review of the scholarship on the actual effects of campaign money and finds that there is little evidence to support such claims. For one, lots of money is poured into elections in support of both Democrats and Republicans. As a tactic for winning elections, spending big does not appear very effective. Second, there is little evidence that politicians switch their votes in exchange for contributions. After all, the limits on contributions to candidates from individuals and committees are such that few politicians would risk their career or their electoral security in exchange for a single donation of a few thousand dollars.

But what money does buy is political access, and this is precisely why the “anti-corruption” defense is both misguided and insufficient as a justification for campaign finance regulation. As congressional campaigns have become increasingly expensive to run, members of Congress must devote more of their time soliciting donations and asking for money, and as a consequence, more of their attention toward [*40] donors. In this regard, the campaign finance status quo exasperates the unequal access and attention that donors receive above everyone else. Although this set of arrangements does not fit the classic mold of “corruption,” it suggests equally troubling consequences for democracy. In essence, the ability to donate money to a campaign determines one’s ability to access political representation, and because money is critical to running a campaign, it biases the candidate selection process toward the candidates who serve the interests of the wealthy and affluent.

AT THE CROSS: RACE, RELIGION, AND CITIZENSHIP IN THE POLITICS OF THE DEATH PENALTY

Vol. 27 No. 2 (February 2017) pp. 36-38

AT THE CROSS: RACE, RELIGION, AND CITIZENSHIP IN THE POLITICS OF THE DEATH PENALTY, by Melynda J. Price. New York: Oxford University Press, 2015. 220 pp. Hardcover $99.00 ISBN 978-0190205539. Paper $27.95 ISBN 978-0-19-020554-6.

Reviewed by Jolly A. Emrey, Department of Political Science, University of Wisconsin-Whitewater. Email: emreyj@uww.edu.

In AT THE CROSS: RACE, RELIGION, AND CITIZENSHIP IN THE POLITICS OF THE DEATH PENALTY, Melynda J. Price examines the intersectionality of race, gender, and religion with respect to attitudes about, and narratives surrounding, the death penalty. She examines how the politics of the death penalty both shapes African Americans’ understanding of citizenship and constrains their political participation. The author begins using two “concrete” death penalty cases from Texas to frame her analyses: Gary Graham and Karla Faye Tucker. The politics surrounding the Graham and Tucker executions, particularly attempts to stay their executions or commute their sentences, illustrate how race, gender, and religion factor into framing perceptions of death row inmates. In particular, Price provides a rich, descriptive narrative about stereotypes that envelop and influence public perceptions of black males in the criminal justice system compared with white females. While this may not appear novel on its face, the introduction of religion and “jail house” religious conversion of the convicted, coupled with race, does take this argument and analysis to a more nuanced level. More broadly, Price seeks to provide systematic evidence that the death penalty is an important factor that shapes how African Americans view their political citizenship in the United States, especially for those living in the metropolitan area of Houston, Texas where death penalty cases are frequently adjudicated. Price uses a mixed-methods approach including focus group interviews, quantitative methods, and analytic narrative to understand better the differences in attitudes about the death penalty among and across subgroups. This well-written book provides multiple theoretical lenses through which to understand these complex relationships surrounding the politics of the death penalty.

Chapter 1 introduces the author’s examination of race, religion, and the death penalty through a discussion of the Gary Graham and Karla Faye Tucker cases. The author identifies these as “concrete” cases given their media profiles, common factors that they share, and more importantly, factors where they diverge. The interpretations surrounding these divergent factors are influenced by historical treatment of race and gender in the United States. The author also includes a thoughtful discussion of innocence in different contexts, including legal and social, that frames attitudes blacks and whites have about the death penalty generally, and the Graham and Tucker cases specifically. With respect to religion, she finds that race and gender mediate perceptions about redemption, and these perceptions vary within racial communities and in media coverage of the two cases.

Chapter 2 contributes to our understanding of racial discrimination and the death penalty by focusing on race, death qualified juries, and BATSON challenges. Price begins this chapter discussing the democratizing features of juries in the United States. She notes the common theoretical arguments about lay jurors bringing to the courtroom their community and contemporary values when determining guilt and punishment for the accused. At the same time, she examines aspects of historical and contemporary treatment of African Americans with respect to jury selection and jury participation. This chapter includes two threads that are worth [*37] highlighting. First, the author’s discussion of the impact of BATSON on mitigating racial basis in jury selection adds to existing scholarship that has determined BATSON to be a fairly ineffective tool, especially with regard to reducing racial bias and creating greater inclusion of African Americans as death qualified jurors. The author’s discussion of “Batson” hearings and the challenges to overcoming explicit and implicit bias with preemptory challenges is exceptional and adds to our understanding of BATSON specifically and to our understanding of impact studies of Supreme Court rulings in general. Secondly, Price notes that it is not simply a problem with the test and its application. She includes a discussion in this chapter that illustrates well its flaws in this regard, but extends her analysis to additional obstacles African Americans face during the jury selection process. For example, in a community like Houston, Texas, African Americans are more likely than not to have previous negative interactions with law enforcement and to have close friends or family members who have been through the criminal courts and incarcerated. These experiences and relationships may be revealed during the selection process that results in weeding out many African Americans and limits opportunities for jury service. Price adds that African Americans share an “ambivalent” attitude toward the death penalty that includes a distrust of the state and the criminal justice system given historical and contemporary treatment. With this connection, the author begins to lay the foundation for the linkages she explores in subsequent chapters.

CONSTITUTIONAL COURTS AS MEDIATORS. ARMED CONFLICT, CIVIL-MILITARY RELATIONS, AND THE RULE OF LAW IN LATIN AMERICA

Vol. 27 No. 2 (February 2017) pp. 32-35

CONSTITUTIONAL COURTS AS MEDIATORS. ARMED CONFLICT, CIVIL-MILITARY RELATIONS, AND THE RULE OF LAW IN LATIN AMERICA, by Julio Rios-Figueroa. Cambridge: Cambridge University Press (Comparative Constitutional Law and Policy Series) 2016. Hardcover: US$ 110.00; Kindle Edition: US$ 61.46. Print ISBN: 978-1107079786.

Reviewed by Raul A. Sanchez-Urribarri, Department of Social Inquiry, La Trobe University, Melbourne, Australia. Email: R.Sanchezu@latrobe.edu.au

Scholarship on comparative judicial politics continues to mature. Works like Rios Figueroa’s insightful CONSTITUTIONAL COURTS AS MEDIATORS offer theoretical and methodological contributions that go well beyond the field, speaking to a broader audience with an interest in how institutions foster (or disincentive) different kinds of approaches to judicial decision-making, and political behavior more generally. The book transcends recent accounts of judicial power in comparative perspective, by offering an alternative approach to how constitutional courts exercise their prerogatives and contribute to governance in democratic societies and beyond.

CONSTITUTIONAL COURTS AS MEDIATORS provides a new approach to the nature of the judicial intervention of constitutional courts in cases involving the recurring participation of competing parties (which is frequently the case in cases of constitutional disputes), that is, “cases that transcend the present conflict (…) and instead looks ahead to forging a creative solution (…) that integrate the views of the actual actors in the dispute with the more permanent roles of the institutions, groups, or principles that they represent” (p. 8). Rios-Figueroa highlights that at least part of the judicial conflict-solving role takes place through mediation, conceiving courts as institutions that “facilitate agreements by helping each party to understand the other party’s views about the nature of the problem and how they think it might be best solved” (p. 21). Finding “the right solution” to this type of conflicts, then, might not refer to reaching the most optimum outcome for the case in hand as a function of ideological, strategic or legal considerations, but would require thinking about how best to provide actors with information to solve their conflicts and with actual tools to carry out their mission in a seamless and effective manner. This approach downplays the adversarial nature of constitutional conflicts, whilst bringing to scholars’ attention the deliberative character of decision-making inherent to at least some types of constitutional cases. Moreover, it invites us to consider the substance of the conflicts in question, and pause to consider the purpose of the intervention of courts in some political matters. Courts might not be there to adjudicate and create policy, but to assist in creative ways conflicting policy actors in achieving their legal policy goals.

With this framework in mind, CONSTITUTIONAL COURTS AS MEDIATORS focuses on ongoing, protracted conflicts between civilian governments and the armed forces. This is an issue that was particularly pressing for democratizing societies after the 1990s, and has become even more important with new challenges emerging in the post 9/11 context – as the brief comparative analysis offered in Chapter Seven with respect to Israel, Pakistan and Turkey clearly illustrates. As Rios-Figueroa points out, the stakes are higher “in contemporary democracies with a history of military intervention in politics and where the armed forces’ role is not confined to external defense but rather involves internal security” (p. 4). According to the book, constitutional courts are particularly effective tools to strike a balance between the competing imperatives of enabling and limiting military forces in their security mission, among other reasons, because they are able to reduce the uncertainty surrounding different aspects of government-military relations and are able to provide information to the actors in conflict, in a way “that reduces the uncertainty that surrounds [*33] their relations, helping them to cooperate and resolve their conflicts” (p. 3). Hence, the military is not left on its own devices to make critical security decisions, nor is it limited to exercise its security role effectively.

GLASS HALF FULL: THE DECLINE AND REBIRTH OF THE LEGAL PROFESSION

Vol. 27 No. 2 (February 2017) pp. 28-31

GLASS HALF FULL: THE DECLINE AND REBIRTH OF THE LEGAL PROFESSION, by Benjamin H Barton. New York: Oxford University Press, 2015. 305pp. Cloth $29.95. ISBN: 978-0-19-020556-0.

Reviewed by William D. Henderson, Indiana University Maurer School of Law. Email: wihender@indiana.edu.

The laws of supply and demand have finally caught up with the modern U.S. legal profession, yet the lawyers that preside over the decaying hierarchy – law professors, BigLaw partners, bar associations, and state and federal judges – are substantially in denial. Why? Because the old order has been too good for too long, blinding its beneficiaries to the core ideals that make a life in the law worth living. But there is good news—those now entering the legal industry will have an opportunity to return to those ideals, albeit this renaissance is borne more out of necessity rather virtue.

This is the core storyline of Ben Barton’s thoughtful and comprehensive new book, GLASS HALF FULL. The turmoil engulfing law schools and the legal profession are widely known, thanks to numerous stories in the New York Times and Wall Street Journal. Other contemporary authors have offered commentary on its the causes (e.g., Trotter 2012; Tamanaha 2012; Harper 2013), though not with a wide-angle view that could plausibly tell the story as part of a broader historical cycle. A handful of capable legal professions scholars have attempted such treatments in the past (e.g., Friedman 1973; Auerbach 1976; Stevens 1983; Abel 1989; Galanter & Palay 1991; Morgan 2010). Barton synthesizes this vast amount of information into digestible narrative that encompasses the post-2008 crisis. To this credit, it also has a substantial ring of truth.
This was not a conventional scholarly project for Barton, who is a chaired professor at the University of Tennessee College of Law. As a fellow tenured professor who earns a good living teaching law at a flagship public law school, I can attest that this is a topic where a little bit of honest reflection can prick your conscience and cause you to lose sleep (primarily due to the debt loads taken on by our students; more on that below).

Many of us who feel this way (and not everyone does) write articles about it or organize conferences or develop new courses that fit the times and are designed to create employment opportunities for our students. One of Barton’s solutions was a write a book that combines a deep factual analysis with a humane, measured tone. As a work of pure scholarship, the book may be judged differently by social scientists. This is because the unstated purpose of GLASS HALF FULL to generate acceptance and hope within a community of professionals prone to skepticism, pessimism, contentiousness and overconfidence. Yes, that’s right: lawyers.
Barton’s analysis is organized in three parts: The Market for Lawyers (Part I), Law Schools (Part II), and Big Picture and the Glass Half Full (Part III). Part I is the most substantive, original, and scholarly and develops the core theme of the book: that American lawyers are, as an historical matter, a profoundly resourceful and resilient profession that can ride out waves of crisis. The reason is that lawyers, at least in America, are too valuable for building and maintaining our institutions.
The ultimate purpose of GLASS HALF FULL is not to develop this thesis, but instead to apply it to the crisis at hand. Thus, the threshold task is to swiftly yet credibly summarize nearly 200 years of history on the U.S. legal profession. And on this very difficult task, Barton largely succeeds.

NATIONAL SECURITY AND DOUBLE GOVERNMENT

Vol. 27 No. 2 (February 2017) pp. 24-27

NATIONAL SECURITY AND DOUBLE GOVERNMENT by Michael J. Glennon. New York: Oxford University Press. 2015. 257pp. Cloth $31.95. ISBN: 978-0-19-020644-4. Paper $14.95. ISBN: 978-0-19-066399-5.

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

Law professor Michael Glennon offers a fascinating and timely essay on the workings of our actual, as opposed to our official, form of government. His thesis is that, at least within the domain of national security affairs, the classic, Madisonian model of three independent, mutually checking branches has ceased to operate. Instead, we have developed and empowered a “Trumanite” network: the top managers of military, intelligence, diplomatic and law-enforcement agencies—unelected bureaucrats who are substantially impervious to congressional, judicial and even presidential control, and free to continue the same policies without regard to the results of elections or public opinion.

Chapter 1, “Introduction,” remarks that, after campaigning vigorously against many of his predecessor’s national security policies, Barack Obama wound up keeping in place or even expanding most of them. Glennon considers and rejects as inadequate two possible explanations: that the policies were continued because they were the only rational possibilities, or that Obama happened to be personally or situationally incapable of following through with his previous views. Instead, the author draws on Walter Bagehot’s (1966) 1867 view of the British Constitution: that the real work of governing was done by modern, “efficient” institutions, not by the “dignified” ones that, in theory, had the most legitimate authority. Over time, a massive and poorly-understood shift in power from monarch and Lords to Prime Minister and Commons had occurred, creating a system of “double government,” which, if widely understood, would create a crisis of public confidence. In America the institutions differ, but dramatic changes have likewise been driven by the demands of efficiency and enabled by public naiveté.

Chapter 2, “The Trumanite Network,” traces the network to the National Security Act of 1947, which set up the CIA, the National Security Council, and the Joint Chiefs of Staff. These reforms enjoyed enthusiastic liberal support in Congress and were criticized by some conservatives. The new agencies are run by several hundred officials, some politically appointed and some career civil servants. Their culture emphasizes tough-minded realism, team loyalty, and a preference for exaggerating threats rather than underestimating them. “The fundamental driver of Trumanite power has been emergency, the appearance of threats that must be addressed immediately, without bringing in the Madisonian institutions” (p. 21). In this perspective, lessened accountability is a benefit, not a cost. The network is compulsively secretive, deflecting efforts to learn who is responsible for a given policy. Though it is not a monolithic hierarchy, the range of internal disagreement is narrow, and major policy shifts are hard to come by. Crucially, the network is autonomous. The Madisonian institutions appear, as legitimacy requires, to be in charge, but cannot actually be so if the system is to function efficiently.

ROUTLEDGE HANDBOOK OF GRAFFITI AND STREET ART

Vol. 27 No. 2 (February 2017) pp. 22-23

ROUTLEDGE HANDBOOK OF GRAFFITI AND STREET ART, by Jeffrey Ian Ross (ed). New York: Routledge, 2016. 491pp. Hardcover $225.00. ISBN: 1138792937.

Reviewed by G. James Daichendt, College of Arts and Humanities, Point Loma Nazarene University. Email: jimdaichendt@pointloma.edu.

THE ROUTLEDGE HANDBOOK ON GRAFFITI AND STREET ART, edited by Jeffrey Ian Ross, aims to review current scholarship in the fields of graffiti and street art through original contributions by experts positioned around the world. The thirty-five entries are divided into four sections that are based upon the following themes: history, theoretical inquiries, regional views, and the effects of graffiti and street art. GRAFFITI AND STREET ART does not utilize an art historical lens typically used to study graffiti and street art, a choice that is at first surprising but ultimately refreshing. Instead, it proves to be a valuable resource for those digging into this growing field of study and hoping to expand upon discipline specific studies.

Ross situates the complexity of issues related to graffiti and street art based upon two urban trajectories: the growth of urban surveillance/policing regimes and a consumption-driven urban development. The former is about public safety and preventative policing in order to reduce reactive policing (social control). By installing cameras and surveillance measures into environmental design, the hope is to reduce crime and allow the urban area to flourish. The latter trajectory repurposes urban area such as abandoned factories and warehouses as privatized spaces with high end zones for consumerism and residences in the form of restaurants and trending shops (social class). The improvement in the quality of life of the residents is then the marker for success. These two urban developments are then used by Ross to see graffiti and street art as either an urban threat or an artistic contribution/opportunity to communities. This complexity explains the varied responses that graffiti and street artists receive that range from prison sentences to museum retrospectives (a contradiction experienced by many artists who have reached the highest levels).

Any text on graffiti and street art requires some foundational definitions. Ross takes on this burden at the outset through a short introduction that assumes the form of a truncated literature review. He lumps graffiti and street art together to reinforce their similarities in terms of these acts being performative, illegal, and ephemeral. Yet there are also cultural and conceptual differences between graffiti and street art that could have been helpful to explore. Graffiti continues to be understood as something more dangerous and mysterious compared to its cousin street art. Graffiti is a letter based art form utilizing spray paint and is often difficult to read by those outside the culture of graffiti. Street art in comparison is image-based and encourages a wide range of media like wheat-paste and stencils that often have a more friendly entry point for the general public. Ross is not seeking to claim any ground and instead emphasizes the importance of legality, aesthetics, and content for distinguishing differences yet also concludes by acknowledging the futility of objectively differentiating between graffiti and street art since there is debate within the communities and subcultures.

THE MYTH OF MOB RULE: VIOLENT CRIME AND DEMOCRATIC POLITICS

Vol. 27 No. 1 (January 2017) pp. 18-21

THE MYTH OF MOB RULE: VIOLENT CRIME AND DEMOCRATIC POLITICS, by Lisa L. Miller. New York: Oxford University Press, 2016. 272pp. Cloth $35. ISBN: 978-0190228705.

Reviewed by Charles R. Epp, School of Public Affairs and Administration, University of Kansas. Email: chuckepp@ku.edu.

I vividly recall walking home from my Washington, D.C. internship in 1986 and seeing blood on a sidewalk where a young man had just been shot in a drug dispute. That year 197 people were murdered in the city, up more than thirty percent from 1985. From there the numbers climbed dramatically, eventually reaching a peak of 482 in 1991. The city’s newspapers were filled with stories of shootings. This was a drug war, they reported. The newspapers were also filled with stories about the Reagan Administration’s so-called war on drugs. Even as my young colleagues and I scoffed at the administration’s propaganda, as we thought of it, we walked the streets with an eye over our shoulders.

So I have never been fully satisfied with the argument favored by some scholars (see, e.g., Reinarman and Levine 1989) that the media frenzy over drugs and drug-related deaths in the 1980s was just hype. The Reagan Administration’s punitive rhetoric and response was hyped, but there was also a bedrock reality to the misery—the poverty, the street-corner drug sales, the killings—in many of America’s urban areas. But until now I have not been able to fully square how we might see a basic truth in public fear of crime without also acceding to the democratic legitimacy of what has so often come with it: a hyper-punitive response. Seeing how many scholars refer in passing to exaggerated fear of crime, I suspect that many of my scholarly colleagues are in the same boat.

Lisa L. Miller’s profoundly important THE MYTH OF MOB RULE offers a truly original solution to this dilemma. Drawing on extensive empirical research, Miller shows that media attention to violent crime and public fear of it are closely connected to actual trends in crime. Rarely is there a public frenzy over crime when there is no underlying problem. Miller also shows that this is true not only of the United States but also of many other advanced industrialized countries. Deploying a nicely designed comparative case study of the U.S., Britain and the Netherlands supplemented by data from twelve other countries, Miller argues that public safety is a democratic concern “of the first order” and that governments that are the most responsive to public concerns about crime are also the most likely to adopt policies to address it. The United States, she says, is unique not in the American public’s concern about crime (or media coverage of it) but in its truncated policy response to this concern, manifested mainly in policing and punishment. When European publics are vexed about crime, their governments adopt some punitive policies (e.g., more police, lengthier prison sentences) but generally as part of a wider array of social-welfare policies aimed at addressing poverty as a root cause of crime. In comparison, Miller argues, the United States, with its extraordinary levels of violent crime and incapacity to do much about it looks a lot like a “failed state.” Its problem is not too much popular control over government but too little.

CHOOSING STATE SUPREME COURT JUSTICES: MERIT SELECTION AND THE CONSEQUENCES OF INSTITUITONAL REFORM

Vol. 27 No. 1 (January 2017) pp. 14-17

CHOOSING STATE SUPREME COURT JUSTICES: MERIT SELECTION AND THE CONSEQUENCES OF INSTITUITONAL REFORM, by Greg Goelzhauser. Philadelphia: Temple University Press, 2016. 192pp. Cloth $84.50. ISBN: 978-1-4399-1339-0.

Reviewed by Melinda Gann Hall, Department of Political Science, Michigan State University. Email: hallme@msu.edu.

In this excellent new book, Greg Goelzhauser addresses a broad fundamental question related to political representation, judicial selection, court reform, and the politics of institutions: Does “merit selection” produce more qualified state supreme court justices or better diversify the bench relative to other methods of initial selection. In answering this intriguing perennial question, Goelzhauser examines over 1,500 state supreme court justices seated from 1960 through 2014 across all fifty states. The focus is on three primary indicators of judicial quality and diversity: professional experience, professional quality; and gender, race, and ethnicity.

The selection systems themselves are categorized as elite appointment plans (i.e., appointment plans lacking the commission review structure), partisan and nonpartisan elections (designated as “elections”), and merit selection. In his study, Goelzhauser departs from the traditional definition of merit selection as the Missouri Plan, or a commission-based gubernatorial appointment process with subsequent retention elections. Instead, Goelzhauser defines merit selection as any use of a commission-based nomination process, including the Missouri Plan and gubernatorial appointment without subsequent retention elections. Thus, in using these three categories of selection systems, Goelzhauser does not differentiate between types of contestable elections (partisan versus nonpartisan elections), consider variations in commission systems (including formal rules for the selection of commissioners, the partisan composition of the commissions, and gubernatorial discretion to reject lists of the nomination commissions), or examine differences in elite appointment systems (e.g., selection by the governor versus legislature). In the same vein, Goelzhauser does not consider retention constituencies (e.g., appointments for fixed terms versus appointments with lifetime tenure). Of course, this is both a limit and an asset, providing parsimony in modeling and the interpretation of substantive results.

One of the many strengths of this terrific project is Goelzhauser’s use of precise definitions for each key concept, multiple indicators, and a consistent format for modeling and reporting the statistical analyses, which make interpreting the primary results straightforward. Essentially Goelzhauser utilizes a fixed set of independent variables (including selection systems) and logistical regression to predict a variety of the justices’ traits, each separately. The full models are reported in the appendices while the principal results about the impact of selection systems on experience, quality, and diversity are shown in the chapters. Specifically, in the chapters Goelzhauser reports changes in predicted probabilities (and significance tests) associated with seating a justice with a particular trait between merit selection and appointment, merit selection and elections, and appointment and elections.

THE COURTS, THE BALLOT BOX, AND GAY RIGHTS: HOW OUR GOVERNING INSTITUTIONS SHAPE THE SAME-SEX MARRIAGE DEBATE

Vol. 27 No. 1 (January 2017) pp. 11-13

THE COURTS, THE BALLOT BOX, AND GAY RIGHTS: HOW OUR GOVERNING INSTITUTIONS SHAPE THE SAME-SEX MARRIAGE DEBATE, by Joseph Mello. Kansas: University Press of Kansas, 2016. Cloth: $34.95 ISBN: 978-0700622917.

Reviewed by Natalie P. Johnson, Department of Political Science and Geography, Francis Marion University. Email: njohnson@fmarion.edu

Joseph Mello presents a compelling account of the successes and failures of the movement for same-sex marriage in two different venues: the courts and through the people via ballot initiatives. The ultimate question that has plagued law and society scholars for years is whether it should be the courts or the people who ultimately decide what are fundamental rights and who should be given these fundamental rights. Conservatives often argue the courts usurp the powers of the people and democratic process by making these decisions, with there being a backlash to this usurpation of power (Rosenberg, 2006).

Mello explores the campaigns of both opponents and proponents in the fight for same-sex marriage and their relative victories and losses. What is important to remember, according to Mello, is that various institutional structures limit arguments that can be made. The crux of Mello’s argument is that conservative groups opposing same-sex marriage were often successful in ballot initiatives because they could frame the message in a certain way. However, these arguments did not translate into success in the courtroom. The opposite was true for proponents of same-sex marriage. The key difference between ballot initiatives and the courtroom is that the courtroom welcomes, and expects, long drawn out arguments whereas measures put to the public must have a short and eye-catching message. The rights based claims are not as easily defended in the courtroom but make excellent tag lines for ballot measures.

Chapter One provides an introduction to the work and the overall argument. The main argument is that institutional venues shape the arguments that are made. Thus, by looking at the insider (court) and outsider (ballot initiative) strategies, Mello is able to discern which arguments resonated in which venues. Additionally, by looking at “conservative opposition to same-sex marriage” (p. 3) the author is able parse out the successes and failures of the same-sex marriage movement. Two fundamental questions drive the study, which are: Why did conservative opponents of same-sex marriage enjoy such an advantage when debating this issue in the popular arena of a ballot measure campaign? And why were they less successful at mobilizing the language of rights when arguing against it in more elite-centered environments?” (p. 3). What is particularly interesting and captivating about Mello’s account is the understanding that the same arguments conservative groups used in the public arena were the very arguments that resulted in their downfall in the courts and therefore expands sociolegal scholarship beyond the doors of the courtrooms. This phenomenon is explored in the substantive chapters on Maine and California.

THE FUTURE OF VIOLENCE—ROBOTS AND GERMS, HACKERS AND DRONES: CONFRONTING THE NEW AGE OF THREAT

Vol. 27 No. 1 (January 2017) pp. 7-10

THE FUTURE OF VIOLENCE—ROBOTS AND GERMS, HACKERS AND DRONES: CONFRONTING THE NEW AGE OF THREAT, by Benjamin Wittes and Gabriella Blum. 2016. Gloucestershire, UK: Amberley Press. Paper. ISBN: 978-1-4456-5593-2.

Reviewed by Mark Rush, Center for International Education. Washington and Lee University. Email: rushm@wlu.edu.

Wittes and Blum have written an important work that forces scholars to reconsider the scope and definition of privacy, individual rights and governmental powers in an era in which the expansion of technology and the scope of internet have radically altered these notions. Despite seemingly ancient visions of the internet as a place in which individuals would be free, potentially anonymous actors, the web has instead, become a much different place.

The book’s subtitle speaks to the breadth of its coverage. Essentially, technological and scientific advancements have now “democratized” access to weapons of mass hysteria if not mass destruction. While the immediate impact of a cyberattack may not seem to compare to that of a nuclear bomb, its real impact (in terms of the number of people it affects and the possible cost of responding to or defending against such an attack) does compare.

But, technology has had a truly democratizing impact as well. Echoing Thomas Friedman’s (2005) description of how the growth of technology, specifically democratized access to the global economy, Wittes and Blum describe what might be version 4.0 of Friedman’s analysis. Democratization of access to technology has a dark side. On the one hand, it brought the developing world (particularly India and China) onto the global economic stage. On the other, [*8] in the same way that the expansion and democratization of the world economy created a scenario for almost unstoppable, hysteria-driven runs on currencies in global markets, it also empowers individuals to threaten others (individually or collectively) with virtual anonymity if not impunity.

RIGHTS AFTER WRONGS: LOCAL KNOWLEDGE AND HUMAN RIGHTS IN ZIMBABWE

Vol. 27 No. 1 (January 2017) pp. 4-6

RIGHTS AFTER WRONGS: LOCAL KNOWLEDGE AND HUMAN RIGHTS IN ZIMBABWE by Shannon Morreira. Stanford: Stanford University Press, 2016. 216 pp. Paper $27.95. ISBN 97808044799089.

Reviewed by Donald W. Jackson, Emeritus Professor, Department of Political Science, Texas Christian University. Email: d.w.jackson@tcu.edu.

This book attempts to contrast local knowledge and law in Zimbabwe and South Africa with the supposed universal principles of international law. Traditional community understandings of law represent a reality that we should respect and attempt to understand. Yet, there are important issues in our own time concerning the rights of people to escape from the too often repressive conditions in their home countries. Still, it is necessary to consider as well the plight of those who are trying to find better life prospects in another place – as contrasted with those who are seeking to avoid political or social persecution in their home countries. These distinctions between political or social refugees, and those who simply are seeking a better life, are integral in this important book. We live in a world in which capital resources and commodities usually can move freely around the world through globalization, while people often cannot. Why should this be so? Are we destined to deal with different realities?

Are human rights indeed universal or are they merely the products of particular cultures? The allegedly universal principles of human rights, perhaps as best represented in the Universal Declaration of Human Rights of 1948, are often in conflict these days with contrarian points of view from different cultural and religious perspectives. Contrarians may well ask for solid conceptual foundations of universality – these possible cultural conflicts require that we must re-examine carefully the support for universalism. Are there indeed universal human rights that ought to be enforceable throughout the world, regardless of local religious, social or political preferences? The answers to such questions are not easy.

NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE


Vol. 27 No. 1 (January 2017) pp. 1-3

NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE, by R.H. Helmholz. Cambridge, Massachusetts: Harvard University Press, 2015. 260 pp. Cloth $45.00. ISBN 978-0-674-50458-5.

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

NATURAL LAW IN COURT presents a novel and surprisingly neglected approach to examining the natural law or the law of nature, the idea that there are fundamental, eternal principles of justice that are binding on us and that guide (or should guide) positive law. Typically, discussions of natural law tend to be highly theoretical and abstract, and it is a frequent criticism of the natural law theory that it provides us with nothing but a set of high-sounding ideals of little relevance to practice. Often the focus is on Aquinas’ famous principle that an “unjust law is no law at all,” with its implication that any positive law that fails to accord with natural law is null and void. Critics point out that this scenario is so rare and unlikely that therefore the very idea of natural law is discredited.

Helmholz instead gives us a careful, systematic historical and empirical approach to assessing natural law. Rather than engaging in the philosophical debate about what it could mean for there to be eternal, universal principles of justice, Helmholz asks a much more tractable question: what does history tell us about the influence and importance of natural law in the Western tradition. This analysis provides a means of testing a thesis: that the natural law has had an important influence on the history of Western legal thought. It thus addresses a specific and important aspect of the debate, the skeptics’ claim that, even if such a thing as natural law really existed, it has never been all that important in practice.