tag:blogger.com,1999:blog-26673146105830250662024-03-17T22:59:06.383-04:00Law and Politics Book ReviewSponsored by the Law and Courts Section of the American Political Science Association.
Unknownnoreply@blogger.comBlogger1589125tag:blogger.com,1999:blog-2667314610583025066.post-14756326232571163942024-01-31T14:02:00.001-05:002024-01-31T14:02:00.132-05:00ACTUAL MALICE: CIVIL RIGHTS AND FREEDOM OF THE PRESS IN NEW YORK TIMES V. SULLIVAN<img src= https://images.ucpress.edu/covers/300/9780520385825.jpg align=left style="margin:0 8px 8px" height=96> Vol. 34 No. 01 (January 2024) pp. 9-11<br />
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ACTUAL MALICE: CIVIL RIGHTS AND FREEDOM OF THE PRESS IN NEW YORK TIMES V. SULLIVAN,
Samantha Barbas. Berkeley: University of California Press, 2023. 290 pp. Cloth $ 29.95. ISBN: 9780520385825.<br />
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Reviewed by Cary Federman., Department of Justice Studies. Montclair State University. Email: federmanc@montclair.edu.<br />
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In 1960, the <i>New York Times</i> published an advertisement, “Heed Their Rising Voices,” written by an ad hoc committee called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Through the advertisement, the Committee sought to expose police misconduct that occurred during a sit-in at a lunch counter in Montgomery, Alabama. The advertisement, however, contained a number of falsehoods, and, by inference but not by name, it implied that the Commissioner of Public Safety in Montgomery, Lester Bruce (L.B.) Sullivan, was responsible. Sullivan sued for libel in state court and won a $500,000 award, “the largest libel verdict in the state’s history,” according to Samantha Barbas (p. 2). Both the press and civil rights organizations regarded Sullivan’s victory as a threat to the First Amendment. Civil rights organizations feared reprisals for any criticisms they may make against governmental officials. The press was concerned that other large-sum awards might follow, which would have a “chilling effect” on the freedom of the press. The scope of such awards would prevent journalists from investigating racial conflict in the South or public officials anywhere. Should the Alabama court’s ruling stand, Justice William Brennan wrote for a unanimous Court in <i>New York Times v. Sullivan</i>, the nation’s commitment to “uninhibited, robust, and wide-open” debate would collapse.
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Samantha Barbas, a law professor at the University of Buffalo, and a well-regarded scholar of press and speech freedoms, has written a general history of <i>New York Times v. Sullivan</i>. The case lends itself to an interdisciplinary approach. The legal issues are complex, but the case began over an attempt to desegregate lunch counters; Sullivan’s trial was racially segregated; and to say that the trial judge had Confederate sympathies is to put it mildly. As Barbas demonstrates, it is impossible to separate the legal issues from the civil rights movement’s focus on desegregation, integration, and political equality.
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Libel is the written defamation of character. There are four kinds: blasphemous, pertaining to religious institutions or persons; obscenity, relating to moral concerns; private, involving individuals; and seditious, concerning libel against the state or state officials. <i>Sullivan</i> is a private libel case involving the defamation of Sullivan’s character. But the Court treated the case as part seditious libel and part private libel. In other words, the decision holds that <a name='more'></a>the First Amendment prohibits the punishment of criticism of state officials absent a showing of “actual malice.” The decision was not based on precedent or historical experience in the states, but on what Justice Brennan called the “court of history.” What was “once left to the states was now nationalized” (p. 220), Barbas writes. <i>Sullivan</i> represents a new development in law, part of the Warren Court’s revolution in federalism. “Before 1964,” Barbas writes, “a person who sued for libel didn’t have to prove the statement in question to be false” (p. 15). Injurious words were, by themselves, evidence of defamation of character. Thus, there was no expectation, either by Sullivan or his lawyer, M. Roland Nachman, that Sullivan would lose on appeal. But the fact that the advertisement did not mention Sullivan by name and that Sullivan could show no harm to his reputation – coupled with racial segregation in the South, the Southern states’ defiance of federal law, and the impending passage of the Civil Rights Act of 1964 – provided the Court with a <i>Marbury v. Madison</i> moment: they could emphatically say what the law of libel is, eliminate or reduce Southern pressure on Northern newspapers, and the states would have to follow.
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Barbas handles these issues well. She provides instances of courtroom drama, describes biographical details of important figures from law, journalism, and the civil rights movement, highlights the role of Southern anger at the Northern and liberal <i>New York Times</i>, explains the civil rights movement’s role in the case through archival material, and provides a good summary of the Supreme Court’s deliberations that led to the <i>New York Times’</i> victory.
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This is neither the first nor the only book on <i>New York Times v. Sullivan</i>, and Barbas’s book is not fundamentally different from them. In cases in which there are numerous books on the same topic, it is usual for scholars to provide readers with a bibliographic essay, either in a preface, introduction, or at the end of the book, to mark differences in emphasis or approach. However, Barbas does none of these things. She mentions the three most prominent books on <i>New York Times v. Sullivan</i> in footnote 12 of chapter 1. Anthony Lewis’s <i>Make No Law</i> (1991) is an homage to Justice Brennan but also a thorough account of the legal aspects of the case (Lewis covered the case as a reporter for the <i>Times</i>). For those interested in the legal aspects of libel, Lewis’s book provides more information on its history than Barbas’s book does. (Leonard Levy’s <i>The Emergence Of A Free Press</i> (1985) provides even better coverage of the origins of libel in the United States; Barbas, unfortunately, doesn’t mention it.) Kermit Hall and Melvin Urofsky’s <i>New York Times v. Sullivan: Civil Rights, Libel Law, And The Free Press</i> (2011), goes over the same ground as Lewis’s and Barbas’s books, but provides more insight into Southern politics and the civil rights movement than Lewis’s account, and offers a more nuanced account of the Southern position on <i>Sullivan</i> than Barbas does. Aimee Edmondson’s <i>In Sullivan’s Shadow: The Use And Abuse Of Libel Law During The Long Civil Rights Struggle</i> (2019) situates the case within the intersection of race, law, and journalism. Barbas also mentions a couple of books on the civil rights movement that are pertinent to understanding <i>ISullivan</i>, but fails to note Communications scholar W. Wat Hopkins’ <i>Actual Malice: Twenty-Five Years After Times V. Sullivan</i> (1989), which provides an interesting and revisionist account of the actual malice rule Brennan relied on to upend the states’ libel laws.
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Barbas argues that her book, unlike the others, relies upon archival material relating to legal strategies and the civil rights movement, and that is what sets it apart. It is difficult to say what the added value of that research is. All four books arrive at the same conclusion, that the Court was right to nationalize libel law, and that Sullivan’s strategy was not to regain his reputation but to prevent Northern newspapers from investigating Southern civil rights violations. All four authors are unsympathetic to Sullivan’s defamation claim, even as they each note that, under existing law, Sullivan was defamed. All four authors also discuss the future of libel law, though Barbas doesn’t spend as much time on this as Lewis and Hall and Urofsky do; nor does Barbas address in depth the problem of reputations and sensationalism that <i>Sullivan</i> created, as Lewis and Hall and Urofsky do. And all four authors share Justice Brennan’s selective and Whiggish history of the Sedition Act of 1798, i.e., that it was unconstitutional under the Warren Court’s understanding of the First Amendment and that is all that matters for constitutional law. But none of the authors seem aware that Levy’s <i>The Emergence Of A Free Press</i> clearly demonstrates that Brennan’s “court of history” interpretation was wrong, that the Jeffersonian attack against the Sedition Act of 1798 was as partisan and sectional as it was philosophic, and that Thomas Jefferson, the great critic of the federal Sedition Act, used his state’s sedition laws to stifle criticism against him and his allies.
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As readers can see, there are many good books on this important topic and a number of ways to approach it. What the books on <i>New York Times v. Sullivan</i> lack in intellectual diversity, they make up by focusing on important (and previously ignored) topics central to <i>Sullivan’s</i> meaning. I leave it to readers to choose the best among them. Barbas has written a good legal and historical overview of these issues. Most important, the book should be used in interdisciplinary law and history courses related to the civil rights movement and the freedom of the press.
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REFERENCES:
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Edmondson, Aimee. 2019. <i>In Sullivan’s Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle</i>. Amherst, MA: University of Massachusetts Press.
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Hall, Kermit, and Melvin Urofsky. 2011. <i>New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press</i>. Lawrence, KS: University Press of Kansas.
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Hopkins, W. Wat. 1989. <i>Actual Malice: Twenty-five Years after Times v. Sullivan</i>. New York: Praeger.
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Levy, Leonard. 1985. <i>The Emergence of a Free Press</i>. New York: Oxford University Press.
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Lewis, Anthony. 1991. <i>Make No Law: The Sullivan Case and the First Amendment</i>. New York: Random House.
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© Copyright 2024 by author, Cary Federman .<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-34042345777591152252024-01-31T14:01:00.001-05:002024-01-31T14:01:00.137-05:00DIVERSIFYING THE COURTS: RACE, GENDER, AND JUDICIAL LEGITIMACY<img src= https://ingram-nyu.imgix.net/covers/9781479818723.jpg?auto=format&w=298&dpr=2&q=20 align=left style="margin:0 8px 8px" height=96> Vol. 34 No. 01 (January 2024) pp. 6-8<br />
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DIVERSIFYING THE COURTS: RACE, GENDER, AND JUDICIAL LEGITIMACY,
Nancy Scherer. New York: New York University Press, 2023. 223 pp. Paperback $30. ISBN: 9781479818723.<br />
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Reviewed by Nancy Arrington.
Department of Political Science, Cal Poly San Luis Obispo. naarring@calpoly.edu. <br />
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In <i>Diversifying the Courts: Race, Gender, and Judicial Legitimacy</i>, author Nancy Scherer addresses why American Presidents have sought (or not sought) to diversify the federal judiciary and then tests whether diversifying the courts has (or has not) shaped perceptions of legitimacy among the public. A key theme is what Scherer terms the “Diversity Dilemma:” if descriptive representation increases the legitimacy of those who are descriptively represented, then increases in legitimacy among women or people of color as the court diversifies are offset by decreases in legitimacy among men and white members of the public. The diversity dilemma suggests that using diversification of the court as a tool to build overall levels of judicial legitimacy among the public may be misguided.
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Chapter 1 summarizes the process of diversification of the federal judiciary and addresses how the salient characteristics worthy of diversifying have changed over time. In addition, Scherer tracks the selection of women and judges of color to the US Supreme Court, US Courts of Appeals, and US District Courts from the Roosevelt through Trump presidencies.
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Chapters 2 and 3 address Democratic and Republican Presidents’ stances on diversification of the judiciary. For both parties, a key focus is on building the legitimacy of the courts, but the parties diverge in the tactics for doing so. For Democratic presidents, the justification or goal of diversification has changed over time. Scherer explains that President Carter sought diversification as “a means to remedy past discrimination” (p. 27) whereas subsequent Democratic presidents have emphasized descriptive representation, the idea that political offices should generally reflect salient characteristics of the public. President Obama, by emphasizing shared experiences and judicial empathy, “is the first to rely on “descriptive/substantive representation to justify his diversity policy for federal courts” (p. 37).
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In describing recent Republican Presidents’ approaches to diversity in the judiciary,<a name='more'></a>Scherer notes that Republican presidents “publicly oppose affirmative action policies” and “dismantle the diversity plans of their Democratic predecessors” (p. 41), but then still make “special efforts to appoint minority and female judges” (p. 42). This three-part strategy used by Republican presidents since Regan attempts to maintain support from the anti-affirmative action base while still seeking support from additional constituencies. This chapter on Republican opposition to diversification efforts also addresses the potential risk of stigmatization and backlash and addresses the idea that diversification efforts may undermine the legitimacy of the judiciary if the public believes that unqualified judges are appointed only for their race or gender.
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Chapter 4 outlines interview data from 19 federal court judges (4 men of color; 2 women of color; 9 white women; 5 white men) in 2009. The interview data offer interesting insight into how sitting judges view concepts addressed in the earlier chapters. For example, white male judges “uniformly dismissed” the idea that diversity appointments should be made to remedy past discrimination while Hispanic and African American judges were less dismissive of the idea (p. 60). Only two judges (a white woman and a white man) rejected the idea that judges are shaped by their race, gender, or ethnicity, and, generally, judges were receptive to the goal of descriptive representation. The non-white judges interviewed did not think that diversity strategies diminish the quality of the court, although some of the white women interviewed emphasized the importance of qualifications and/or expressed concerns about backlash or de-legitimatization.
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Chapters 5 through 9 address the effects of diversification on perceptions of legitimacy and report evidence from a series of survey experiments. One set of survey experiments tests for perceptions of judicial legitimacy based on aggregate levels of women or Black judges in the judiciary relative to the population. The experiment on gender (Chapter 6) shows that people under-estimate the number of women in the judiciary (see table 6.1), that men have higher baseline levels of judicial legitimacy, and that women see the judiciary as more legitimate when there is gender parity (51% women). Assessing the potential for heterogenous treatment effects by party identification of this study (Chapter 9) suggests that while party ID has a direct effect on perceptions of legitimacy, treatment effects do not vary by party.
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Chapter 7 assesses how the over or under-representation of Black judges on the bench relative to the population shapes perceptions of legitimacy. Descriptions of the experimental procedure suggest that Chapter 7 is a re-telling or re-analysis of the Scherer and Curry (2010) data. Chapter 7 shows that Black respondents see the judiciary as more legitimate when the percentage of Black judges is greater than the percentage of Black people in the population. As expected by the discussion of the diversity dilemma, white respondents see the judiciary as less legitimate when the percentage of Black judges is greater than the percentage of Black people in the population.
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Chapter 8 outlines a survey experiment designed to test for the effects of the combination of descriptive and substantive representation by providing information about a racially salient case in which a judge excludes evidence in a drug trial for illegal search and seizure. The race of the judge is varied in the treatment conditions. Absent information about the judge’s race (i.e., the control condition), there is substantial variation in respondent attitudes towards the judge’s decision based on respondent race. Black respondents are much more supportive of the decision to exclude evidence than white respondents. The race of the judge does not affect Black respondents’ support for the decision, but the race of the judge does matter for white respondents: white respondents are more critical of the decision to exclude evidence in a drug case when the judge is Black.
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Finally, the conclusion situates the empirical findings of the previous chapters within President Trump’s hostility towards the judiciary, emphasizes the importance of judicial legitimacy, and returns to the concept of the diversity dilemma. Overall, this project brings together an assessment of presidential approaches to judicial diversification, interview data of sitting judges about their attitudes towards judicial diversity, and survey experimental data about the effect of judicial diversity on respondents’ perceptions of judicial legitimacy. Nancy Scherer has produced a substantial body of work on diversification in the judiciary over the last many years. This book brings together some of those ideas and empirics from earlier projects in a holistic and useful way. However, I had hoped it would include some replication of those earlier projects with more recent data. The chapters on presidential approaches to diversification efforts are particularly interesting and provide a wealth of historical information about descriptive representation in the judiciary that is sometimes missing from empirical work on diversification.
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Of course, diversity is not the only factor that shapes legitimacy. While a direct assessment of other sources of judicial legitimacy is beyond the scope of this book, situating the role of diversity in the broader web of legitimizing factors would add useful nuance. For example, if a goal is to build aggregate legitimacy of the judiciary, are there non-diversity related tactics that might increase legitimacy among white people and white men and, thus, offset the drop in legitimacy from increased diversification? Might exposure to legitimizing symbols (borrowing from Gibson’s work) of female and minority judges and justices erode the negative association between diversity and legitimacy among white and white male members of the public while further building legitimacy among women and minority members of the public? Altogether, this book is a useful contribution to the literature on descriptive representation in the judiciary and shows the importance of diversifying the judiciary as a means of building legitimacy among historically excluded populations.
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© Copyright 2024 by author, Nancy Arrington.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-36458739104692109472024-01-31T14:00:00.002-05:002024-01-31T14:00:00.138-05:00HIGH COURTS IN GLOBAL PERSPECTIVE: EVIDENCE, METHODOLOGIES, AND FINDINGS<img src= https://ik.imagekit.io/uvapress/tr:h-450,w-300,c-at_max/5638.jpg align=left style="margin:0 8px 8px" height=96> Vol. 34 No. 01 (January 2024) pp. 1-5<br />
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HIGH COURTS IN GLOBAL PERSPECTIVE: EVIDENCE, METHODOLOGIES, AND FINDINGS,
Nuno Garoupa, Rebecca Gill, and Lydia Tiede. University of Virginia Press, 2021. 362 pp. Cloth $55.00. ISBN: 9780813946153.
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Reviewed by Jeffrey K. Staton., Department of Political Science. Emory University. Email: jkstato@emory.edu
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Garoupa, Gill, and Tiede’s <i>High Courts in Global Perspective: Evidence, Methodologies, and Findings</i> features a collection of essays that take stock of where the field of comparative law and courts is and where it might go. As the title suggests, these assessments are centered on scholarship concerning high courts. The authors explain their choice persuasively, though it nevertheless limits the scope of the volume as so much scholarship in comparative law and courts focuses on other courts and actors in a state’s judicial system. The editors further focus their volume on statistical analyses of high court outcomes, a choice that shifts our attention away from most of the field of comparative law. Still, the global scale of the project and the fact that many of the most important questions in the field can be fruitfully developed in the context of quantitative studies of high courts ensures that the volume still retains the flavor of a general field introduction. Fortunately, the editors provide ample citations to other field summaries, which fill in the spaces that they de-emphasize. If you teach courses on law and courts; if you conduct research on the subject; and, certainly if you advise graduate students, you should own this volume.
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As strongly as I recommend the volume, I do fear that you will not find in it simple answers to the field’s most critical challenges. Just as the editors provide a compelling rationale for a robust program of comparative scholarship on law and courts, the volume’s authors together illustrate how the combination of the needed tasks ahead, and professional incentives make the production of the very scholarship that we need extremely difficult to execute. The volume points us in the direction of a solution, but the particulars of how to make this solution viable are left to future thinking. We have a good sense for where we are. We have a general vision of where we ought to go. Sorting out how to get from one point to the other is a task left to the community, which is probably as it must be.
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The editors’ primary goals are to ask how courts should be studied comparatively. They search for key barriers to a vibrant comparative literature on law and courts, and they ask how the field might overcome these barriers. The editors argue that a comparative approach to law and courts is essential because several important questions <a name='more'></a>about the field more generally, simply cannot (or should not) be answered with single-country studies. For example, scholars wish to identify the institutional features that permit constitutional judges to carry out their role in holding powerful officials to legal limits on their authority. The editors remind us that compelling theoretical propositions regarding potential institutional features (e.g., that the fragmentation of parties in a state’s legislature ought to free courts to more aggressively police constitutional limits) have received mixed empirical support. The study of additional contexts and time periods, they argue, offers the possibility of theoretical refinement. The editors also note that constitutional reforms carried out in some countries have been grounded in the historical experience of others. Insofar as a state’s background characteristics and history likely condition the effect of institutional reforms, our recommendations ought to be grounded in the particular histories of the states in which the reforms will, in fact, be conducted. To do this well, we simply need more and better scholarship on a global scale. Effectively, the editors’ call for comparative research on law and courts is a call for comparative research into any topic: important contextual factors differ across countries and regions, and so studying the same question in multiple locations offers opportunities to better imagine critical counterfactual conditions. These counterfactual conditions are themselves important to both the development of useful theoretical models and to the evaluation of the causal claims that these models produce.
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Garoupa, Gill, and Tiede divide their volume into thirds. Lewis Kornhauser leads-off and offers a helpful conceptual structure with which any scholar of law and courts ought to be familiar. Consistent with Shapiro’s (1981) classic formulation, courts are best understood as institutional mechanisms for resolving disputes between two parties. They turn facts about particular disputes (Party A claims that Party B has harmed Party A through some action or inaction) into enforceable dispositions (Party A has legally harmed Party B) via the application of legal rules that provide a link between facts and dispositions. Yet, courts do more. They announce their resolutions, and the nature of their announcements influences in several ways future behavior, including new disputes. How courts do this work turns on (1) what judges fundamentally want, (2) how courts aggregate the positions of potentially many judges in order to reach a disposition (when courts are collegial), (3) whether the court is also responsible for developing the rules that it applies/announces, (4) the form of the court’s announcement (e.g., does it give reasons), and (5) the ways in which the external political context influences the preceding factors. With these five features in mind, we can describe most (perhaps all) leading theoretical models of law and courts. There is no question that the essays that follow easily fit into Kornhauser’s conceptual framework, even if it is the rare essay that attempts to make the connections explicit. The authors’ use of this essay notwithstanding, Kornhauser’s piece serves as a powerful framing device and could effectively be used to introduce courses on law and courts at the graduate level.
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The second third of the volume contains a collection of country- or region-specific essays in which the authors were asked to address the same set of questions. Each essay summarizes the literature on high courts in their region/country, identifies gaps or theoretical puzzles in these literatures, reviews methodological challenges and potential solutions, and offers proposals for future scholarship. The chapters focus on single countries when the editors or contributors believed that the scholarship on a particular country was sufficiently dense to justify a single chapter. This results in chapters on the United States, Canada, the United Kingdom, and India. There are additional chapters on pairs of countries or courts, including Australia and New Zealand and the Court of the European Union and the European Court of Human Rights. The remaining chapters are regionally-focused and include summaries of scholarship on Latin America, Europe, East Asia, and Africa. The final third of the volume contains two essays, one by Amanda Driscoll and a second by Rebecca Gill and Christopher Zorn. Both essays offer perspectives on the state of the field in light of the essays in the second third of the volume.
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Given the scope of the volume, I summarize only a few key lessons. In the introduction to his section on gaps in the literature on the United States, Joshua Fischman writes “There is widespread understanding that judicial decisions are influenced by judges’ internal preferences, strategic considerations, and legal sources. Beyond this basic understanding, there is much disagreement” (p. 48). My reading of the essays is that Fischman’s statement fairly characterizes the global scholarship reviewed in the volume. There is a kind of consensus around the general forces that influence judicial behavior, but conflicts remain over the relative size of these forces as well as the conditions under which one force is likely to be more important than another. Differences about these core elements of judicial behavior influence scholarship on other topics including the judicialization of politics, the effects of race, ethnicity, and gender on many aspects of the law, and more recently, on the place of courts in the context of democratic backsliding.
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Three other lessons are closely linked. First and foremost, although there are many cross-national studies of both institutions of constitutional review and of judicial behavior, these studies rely on country-year level measurement of concepts like de jure and de facto judicial independence (Hayo and Voigt, 2007; Melton and Ginsburg, 2014; Epperly, 2019). There are relatively few comparative studies that draw on measures derived from case-level or judge-level information (e.g., Herron and Randazzo, 2003; Haynie et al., 2007). We lack truly comparative analyses of actual judicial decision-making, opinion-writing, coalition formation, etc. I am not sure if a truly cross-national analysis at the level of the judge-case (or judge-issue-case) is absolutely necessary for the development of the field, but I certainly agree that the absence of comparable cross-national data is a vexing omission.
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Second, nearly all scholars outside of those writing on the United States, Canada, and the United Kingdom lament the lack of high quality data on decision-making, whether constrained to apex courts or the judiciary as a whole. Some of these concerns derive from the record-keeping practices of some judicial systems, which make data collection extremely costly, but scholars also identify the lack of data availability as a key problem even in states whose judicial systems are fully digitized and publicly accessible. Finally, the volume’s authors identify the relative lack of consensus on the measurement of critical concepts (e.g. judicial ideology, judicial backgrounds, etc.) such that even if decision-making data were available, it would be difficult to evaluate well-existing theoretical claims.
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These lessons leave the reader with a sense of a literature that has made tremendous progress over the last fifty years, but which has yet to reach consensus on several important matters. I do not view the lack of consensus as a problem. Indeed, the field would likely profit from more heated debates about key theoretical propositions. A more significant concern is that, outside of a relatively small number of cases, we lack comparable information on many of the aspects of Kornhauser’s framework, including details of appointments, case assignment, aggregation rules, norms of debate, and approaches to the constitutional review across the many legal instruments that high courts manage globally.
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In their essay, Gill and Zorn highlight the need for collaboration in the production of the basic data the field lacks. This is an important essay, especially when read in tandem with Driscoll’s, which focuses in part on the many career incentives that make it hard to produce the data we need and harder still to benefit from its production sufficiently to warrant the effort. Technological advances over the last twenty years have made it possible to automate some basic data retrieval and measurement tasks but humans will need to participate, and there is no one scholar who is knowledgeable enough to do this work alone, no matter the technology. Given the high barriers to entry in this field (scholars not only need country-specific political knowledge, and strong methods skills, but also legal knowledge of potentially many different systems), it seems transparent that a viable solution will involve a large community. This will need to include not only social scientists but also legal scholars. It also seems transparent that this cannot be done with participation from the global north only. It will require scholars in a truly global network. Many needed partners are not represented among the volume’s authors. This is absolutely understandable given the scope conditions the editors placed on the project; however, it is an omission worth reflecting upon given the collaborative task ahead.
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Pointing to the need for global collaboration is extremely helpful. Yet a key missing element is a description of how exactly the field will solve the clear public goods provision and coordination dilemmas that must be addressed in order to promote the collaboration we need. I would suggest that thinking clearly about potential solutions to public goods and coordination problems will be a good starting point. What are the potential focal solutions for bringing people together around shared goals? What kinds of benefits can be offered only to contributors in this effort? Can we draw on existing international organizations or on existing international collaborations? It would seem that this cannot be done from within the context of a single disciplinary boundary. There just are not a sufficient number of political scientists or sociologists, or comparative legal scholars to get the work done alone. Surely the need for a truly interdisciplinary approach will make the public goods and coordination problems harder to solve. I suspect that this is the key reason that we find ourselves at the level of progress described in the volume.
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<i>High Courts in Global Perspective</i> is a must read for scholars of law and politics, whether they focus on a particular country or have interests in the way that law and courts function more generally. The volume succeeds in offering summaries of scholarship on high courts in particular countries and regions, but its real value lies in clarifying the big challenges the field confronts. The most important is the simple lack of descriptive information for much of the world’s judicial systems. Although I see this challenge as no doubt quite difficult to overcome, the solution, global collaboration, is precisely the kind of thing that attracted so many of us to the field in the first place. For that reason, I remain optimistic that we are going to sort this out.
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REFERENCES:
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Epperly, Brad. 2019. <i>The Political Foundations of Judicial Independence in Dictatorship and Democracy</i>. Oxford University Press.
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Haynie, Stacia L, Reginald S Sheehan, Donald R Songer and C Neal Tate. 2007. “High Courts Judicial Database.” <i>Judicial Research Initiative, University of South Carolina</i>. http://www. cas. sc. edu/poli/juri .
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Hayo, Bernd and Stefan Voigt. 2007. “Explaining de facto Judicial Independence.” <i>International Review of Law and Economics</i> 27(3):269–290.
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Herron, Eric S. and Kirk A. Randazzo. 2003. “The Relationship between Independence and Judicial Review in Post-Communist Courts.” <i>The Journal of Politics</i> 65(2):422–438.
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Melton, James and Tom Ginsburg. 2014. “Does de Jure Judicial Independence Really Matter?: A Reevaluation of Explanations for Judicial Independence.” <i>Journal of Law and Courts</i> 2(2):187–217.
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Shapiro, Martin M. 1981. <i>Courts: A Comparative and Political Analysis</i>. Chicago: University of Chicago Press.
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© Copyright 2024 by author, Jeffrey K. Staton.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-7961005383843472292023-12-01T11:07:00.000-05:002023-12-01T11:15:23.527-05:00THE SHADOW DOCKET: HOW THE SUPREME COURT USES STEALTH RULINGS TO AMASS POWER AND UNDERMINE THE REPUBLIC<img src=https://www.hachettebookgroup.com/wp-content/uploads/2023/09/9781541602632-2.jpg?resize=991,1536 align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 07 (November 2023) pp. 89-93<br />
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THE SHADOW DOCKET: HOW THE SUPREME COURT USES STEALTH RULINGS TO AMASS POWER AND UNDERMINE THE REPUBLIC,
Stephen Vladeck. New York, Basic Books, 2023. 352 pp. Hardcover $30. ISBN: 9781541602632.<br />
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Reviewed by Tobias T. Gibson.
Department of Political Science. Westminster College (MO). Email: tobias.gibson@westminster-mo.edu.
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Stephen Vladeck, the Charles Alan Wright Chair In Federal Courts at the University of Texas Law School, offers in <i>The Shadow Docket</i> what is among the best books about the Supreme Court I have read. This is a timely, well-written, important book. Vladeck’s goal for the book is a simple one: “… to demonstrate that the rise of the shadow docket risks doing serious long-term institutional harm to the Court—and, as such, the country” (p. 25). No small feat, but the goal is met and exceeded.
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By the end of the preface and introduction, the reader will learn what type of actions the Supreme Court takes that constitute the “shadow docket;” that the make-up of the Court impacts the frequency of the shadow docket decisions; the breadth of the impact of this type of decision; and, interestingly, an example of how the use of the shadow docket changed the institution of the Supreme Court.
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The term “shadow docket” was first used by William Baude (2015) to distinguish between the merits docket and the other, less public decisions made by the Court. Since then, the term has entered the mainstream, to the point that in 2021, Justice Samuel Alito spoke about the damage that the term had on the Court, arguing that the description suggests the justices have become a “dangerous cabal” (xii). Vladeck does not waver, though, and notes that since Baude’s article, the Supreme Court ramped up its use of these decisions, and often were in favor of then-President Trump’s controversial policy initiatives. This is an imperative moment in the book, as there is an institutional impact stemming from these decisions. Because the shadow docket decisions, unlike the merit docket cases, do not come with opinions in which the legal reasoning is explained, “the justices are not only failing to provide guidance to lower courts and government actors but also exacerbating charges of political partisanship” (xiii).
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As most readers will know, one of the components of justiciability is whether or not the case is “ripe” for a Supreme Court decision. Importantly, this is a consideration for the justices when they are considering <i>cert.</i> Vladeck notes that this is not true—and indeed, is inverted—in shadow docket cases. Instead of a case that works its way through the judicial system, one type of shadow docket decision called “injunctions pending appeals,” instead “answer complicated (<i>and in some cases, hypothetical</i>) questions of statutory or constitutional law at the outset of litigation” (p. 18, my emphasis). Here, Vladeck is primarily focused on the sharp increase of these actions, especially after Justice Amy Coney Barrett took a seat on the Bench. I think it is important to note that this also undermines the constitutional provision that the Supreme Court decides cases and controversies.
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At the heart of the book, Vladeck offers several important history lessons. Chapter one, “The Rise of Certiorari” recounts the Taft (both president and Chief Justice)-era efforts that led to the reforms allowing the justices to decide which cases they hear. This is important for two reasons. First, because the reasoning of these <i>cert.</i> decisions rarely make their way into the public eye, Vladeck’s position is that they constitute a portion of the shadow docket. Second, and more importantly, this chapter offers a history of the modern institution of the Supreme Court—and argues that Chief Justice Taft was at best disingenuous in his reasoning behind the reform effort.
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In the second and third chapters, Vladeck offers a stronger look at how the Supreme Court’s use of the shadow docket impacted same-sex marriage and death penalty cases. For example, due to the 2014 <i>cert.</i> denials, “the Supreme Court’s summary, unsigned, and unexplained decisions to stay out of the marriage issue … directly legalized same-sex marriage in eleven states (p. 75). <br />
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Regarding death penalty cases, Vladeck notes the obvious impact that the Court’s national ban of the death penalty in <i>Furman V. Georgia</i> and the subsequent lift of that ban in <i>Gregg v. Georgia</i> had on national politics and policy. Less obvious, however, is the impact on the Court itself. Because the <i>Gregg</i> decision required extensive judicial oversight, the Court itself became the place for remedy of death row inmates seeking emergency relief. However, in 1980, the justices ended the formal summer recess, allowing the entire membership of the Supreme Court to be available to make those emergency decisions. Prior to 1980, the emergency relief was subject to hearings by an individual justice. Between 1980 and 2022, there were no hearings—and in something of an irony, “…by moving from in-chambers resolution of emergency applications to resolution by the full Court, the justices as a whole came to provide less process—and less reasoning—than individual justices had previously” (p. 107).
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Chapters 4 through 7 focus on the rise of the shadow docket during the Trump administration, and the impact in the few years after Trump left office. While much of this explosion comes directly from the former president, Vladeck explains well the institutional changes to the Office of the Solicitor General and the Supreme Court itself. Chapter four begins with a discussion of the “travel ban,” eventually enacted through a series of executive orders. The travel ban, as (eventually) accepted by the majority of the justices, “set the tone” for the state of the shadow docket while Trump was in office (p. 137). Some of this was a rethinking by the justices about the role of judicial restraint—an idea that began during the Franklin Roosevelt administration related to statutory law, not executive orders. Importantly, this restraint historically was not used in questions related to individual rights—and the Court undermined both of these norms (p. 134). But, some of the retooling of the Court’s impact was the purposeful efforts of the Trump-era Solicitors General. In a nutshell, “… in just four years Trump’s solicitors general sought emergency relief from the Supreme Court a total of forty-one times—a more than twentyfold increase over Bush’s and Obama’s SGs combined” (p. 144).
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As noted above, Vladeck establishes earlier in the book the role that Justice Barrett played in the increased reliance of the shadow docket. Seemingly, so did the coronavirus pandemic. As the reader likely remembers, at the height of the pandemic concerns, communal spaces, including churches, were shuttered in many states. The Court’s conservative majority, in a series of shadow docket cases, overturned the actions of many states seeking to limit the spread of the concerning virus—but also altered the norms of precedent. In <i>South Bay II</i>, the Supreme Court explicitly required that “unsigned emergency orders… were to be given precedential effect by lower courts, despite a long-standing tradition to give them no such weight” (p. 186).
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In chapter 6, Vladeck convincingly illustrates that the shadow docket decisions often favored partisan Republican interests—including elections. In chapter 7, Vladeck shows the impact of the shadow docket into the post-Trump era, including the importance of these decisions on policy areas including abortion. Most tellingly, he discusses some justices’ pushback against the phrase and subsequent perception of the Court and its use of this type of decision. Most importantly, perhaps, using a speech by Justice Barrett in which she asks the public to “read the opinion” before casting aspersions, Vladeck reinforces the overall point of his book: “…what if there’s no opinion to read? (p. 245).
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The conclusion offers what may be the most important positions in the book. Here, Vladeck notes that the justices, and the Supreme Court as a whole, are increasingly removed from the public. In addition to the shadow docket, justices are increasingly giving speeches that are not recorded, nor are transcripts released. Further explaining the issue, Vladeck culminates with a discussion about the rule of law and the Court’s legitimacy. “If that legitimacy,” Vladeck notes, “turns upon the Court’s ability to explain itself, then the rise of the shadow docket is anathema to that understanding. The people can hardly be expected to acquiesce in decisions that they can’t possibly be expected to understand” (p. 277).
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Going further, if the rule of law requires “generality, clarity, publicity, stability, and prospectivity of the norms that govern a society” (Waldron) Vladeck masterfully illustrates that the Supreme Court has undermined the rule of law via its use of the shadow docket in, arguably, every way. Certainly, the combination of no opinions to guide lower courts’ and the public’s behavior, coupled with the undermining of long-held practices subverts the requirements of clarity, publicity, and stability. The partisan nature of the recent decisions also undermined the generality tenet.
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I have two small quibbles with this book, and both relate to Vladeck’s sources. In two areas that he substantively covers well, the strategic decision making of the justices (chapter 2) and the role of the Solicitor General (SG) at the Supreme Court (chapter 4), I wish he had more purposeful use of political science literature related to the strategic model of decision making; and the role of the SG and other “repeat players” at the Court. To be sure, Vladeck understands this. For example, he notes the wisdom of “savvy advocates and parties” who strategically time <i>cert.</i> petitions (p. 85). He has an entire chapter, “The Tenth Justice,” that discusses the role of the Office of the Solicitor General, its historical origins, and the impact of breaking from historical norms and expectations of the office under the Trump administration. But, I would have liked to see at least classic works by political scientists like Lee Epstein and Jack Knight, Kevin McGuire, Rebecca Solokar, and Richard Pacelle—and more recent works, as well.
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Professor Vladeck pulls no punches, and this is a good thing. It would be difficult to overstate the importance of this book. This is true because in the wake of <i>Dobbs</i>, the public’s perception of the Supreme Court was already shaken. Coupled with the partisan use of the shadow docket, and the more recent ongoing ethically questionable travel support and other funds received by Justice Clarence Thomas (Murphy and Mierjeski) and Justice Samuel Alito (Elliott, Kaplan and Mierieski), the Supreme Court’s public legitimacy is waning badly. <i>The Shadow Docket</i> offers a course of action to begin to heal the institution of the Supreme Court. Which, in this institutionalist’s mind is a necessary corrective.
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In <i>The Shadow Docket</i>, Professor Vladeck offers a rich history of the Supreme Court, discusses the internal strategic decision making of the justices, and provides a compelling argument about the impact of the shadow docket—on the legitimacy of the Court; the breadth of influence on many of the decisions; and on the dynamic on the justices themselves. This book should be of interest to many scholars who read <i>LPBR</i>, and to the students in the classes they teach. <br />
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CASES:<br />
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<i>Dobbs v. Jackson Women’s Health Organization</i>, 597 U.S. ___ (2022)
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<i>Furman V. Georgia</i>, 408 U.S. 238 (1972)
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<i>Gregg V. Georgia</i>, 428 U.S. 153 (1976)
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<i>South Bay United Pentacostal Church V. Newsom</i>, 141 S.Ct. 777 (2021)
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REFERENCES:<br />
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Baude, William, “Foreword: The Supreme Court's Shadow Docket (January 6, 2015). 9 <i>NYU Journal of Law & Liberty</i> 1 (2015): 1-63.<br />
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Elliott, Justin, Joshua Kaplan, and Alex Mierjeski. June 20, 2023. “Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court,” https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court <br />
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Epstein, Lee and Jack Knight. 1997. The Choices Justices Make. Washington, DC: CQ Press. <br />
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McGuire, Kevin T. “Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success.” <i>The Journal of Politics</i>, vol. 57, no. 1, 1995, pp. 187–96.<br />
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Murphy, Brett and Alex Mierjeski. August 11, 2023. “Clarence Thomas’ 38 vacations: The billionaires who treated the justice to luxury travel.” <i>USA Today</i>, https://www.usatoday.com/story/news/2023/08/11/clarence-thomas-38-vacations-the-other-billionaires-who-have-treated-the-supreme-court-justice-to-lu/70565593007/ <br />
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Pacelle, Richard. 2003. Between Law and Politics: <i>The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation</i>. College Station: Texas A&M University Press. <br />
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Salokar, Rebecca. 1994. <i>The Solicitor General: The Politics of Law.</i> Philadelphia: Temple University Press. <br />
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Waldron, Jeremy, "The Rule of Law", <i>The Stanford Encyclopedia of Philosophy</i> (Fall 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), forthcoming URL = https://plato.stanford.edu/archives/fall2023/entries/rule-of-law/. <br />
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© Copyright 2023 by author, Tobias T. Gibson.<br />
<br />Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-61138558491834316822023-12-01T11:02:00.003-05:002023-12-01T11:35:40.764-05:00THE STATE<img src=https://pup-assets.imgix.net/onix/images/9780691182209.jpg?w=600&auto=format align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 07 (November 2023) pp. 94-97<br />
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THE STATE,
Philip Pettit. Princeton: Princeton University Press, 2023. pp. 376. Hardcover $39.95. ISBN: 9780691182209. Ebook $39.95. ISBN: 9780691244396.<br />
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Reviewed by Edward W. Gimbel.
Department of Politics, Government, and Law. University of Wisconsin – Whitewater. Email: gimbele@uww.edu.<br />
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Pettit’s <i>The State</i> is a genealogy and examination of the state or polity (he uses the terms interchangeably) in two parts. The first constructs a realist, functionalist genealogy of the state based on a thought experiment, which seeks to establish that if we assume certain plausible preconditions – namely, “where the protagonists are human beings like us and the circumstances allow an approximate balance of power among many members, if not among all” (p. 6) – then a state would be likely to appear. The argument proceeds to outline the functional role of this state, and key elements of its organization directed to ensuring that it serves its functions well. The second part then goes on to answer a series of questions about the state raised by what Petit describes as statist, libertarian, and laissez-faire theories in political philosophy.
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The argument Pettit constructs in the first part of his book is realist in two distinct senses. First, Pettit is realistic about the apparent inescapability of the state-system as it currently exists. Barring catastrophe of world historic proportions, we are likely stuck with the state as the dominant form of political organization. As critical as we may legitimately be about the state as a means of organizing political power, it is unclear how any alternate arrangement could plausibly emerge. Second, Pettit rejects an idealist argument that would construct a genealogy of the state as an exemplar of justice. This second form of realism sets Pettit’s argument apart from that of similarly thought experiment-inclined contractarians like John Locke or contemporary political and moral philosophers like John Rawls. In Pettit’s view, the emergence and perseverance of the state must be due to its serving key functions. While these functions may be consistent with the pursuit of justice and indeed may provide the basis for such a pursuit, justice itself is not the function of the state.
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Beyond rejecting the “just-so” stories of incorporation told by contractarian thinkers, Pettit also eschews a narrative where agreement on key principles emerges or is imposed in situ as a more or less finished product. Instead, Pettit’s genealogy is “emergentist” insofar as it seeks to justify the emergence of the state regardless of a range of possible contingencies. His approach here is appropriately painstaking as the goal is to justify the emergence of the state as not merely <i>possible</i>, but rather, <i>likely</i> or even, in Pettit’s terms, <i>robustly likely</i> (p. 22). The emergence of the state proceeds in stages, beginning with prudential forms of agreement between members of a community. Pettit begins with the emergence of convention, drawing on and in dialogue with David K. Lewis’s 1969 treatment, and progresses to norms. In each case, he outlines how conventions, then norms, are likely to emerge first as a set of social strictures that it is in the participant’s self-interest to acknowledge, then as constraints that require conformity in the manner of a command with the backing of the community. Additionally, within each case, the individual comes to submit to such strictures even if these limitations on individual behavior may seem to work against the narrow self-interest of the individual.
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From conventions, through norms, Pettit’s genealogy reaches a central theme with the emergence of law. Where Lewis was the key figure in Pettit’s discussion of convention, H.L.A. Hart is his primary interlocutor in the treatment of the emergence of law. The norms outlined in Pettit’s genealogy that require individuals to act in a particular way whether they would like to or not align with Hart’s notion of “primary rules.” Beyond this, “secondary rules” “provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations” (Hart, 81). Hart notes – and Pettit sets out to demonstrate – that the emergence of these secondary rules marks the transition from a pre-legal into a legal world. Importantly for Pettit, though, this emergence neither requires nor implies the prior establishment of state authority. “There is no reason to think that a law-bound society could come into existence only because of the initiatives of an independently established polity or state” (p. 53).
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This idea is central to Pettit’s argument in part because once the difficult genealogical work of tracing the emergence of law is done, the argument for the emergence of the state in something like its present form follows as a matter of course. In Pettit’s genealogy, it is more accurate to describe “the polity as the precipitate of law.” In short, in Pettit’s telling, the skeletal state implied by the existence of a legal system evolves to become a full-fledged state in a form that we would recognize today because it fulfills key functions or, put differently, it solves otherwise insoluble problems. These problems and their solution will be familiar to readers of Hart: the problems include compliance with the law, competition among those who might exercise coercive power, and a range of issues associated with the polity’s existence in a world of other actors, i.e. the problems of international relations. The solution to these problems is identical to the function of the state. As Pettit succinctly puts it, “The function, in the classic phrase, is the promotion of <i>salus populi</i>: the safety of the people, domestic and international” (p. 113).
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With this bare bones, functional account of the state in place, Pettit proceeds to fill out his account by addressing two opposing issues: the extent to which the polity ought to be <i>incorporated</i> – acting as a unified, corporate agent in the name of its residents – and the extent to which it ought to be <i>decentralized</i> – operating “via relatively independent agencies that check and balance one another’s power” (p. 114). Pettit’s argument here is that incorporation is both a practical necessity and offers distinct advantages. Some degree of incorporation enables the state to act in the collective interest of its residents in a unified manner, to offer univocal interpretations of the law, and to “stabilize the regime of law against internal and external dangers”. Nonetheless, <i>full incorporation</i> poses obvious risks, which Pettit recalls with reference to Hobbes’s Leviathan as a prime example. Pettit’s solution, then, is the <i>polycentric</i> regime, characterized by a degree of decentralization and modularity. As with incorporation, decentralization allows for degrees, and here too Pettit warns against extremes. Just as the maximally incorporated regime poses the risk of tyranny, a maximally decentralized regime risks deadlock at best or anarchy at worst. A moderately decentralized, but still incorporated, polity can provide security for its citizens – <i>salus populi</i> – in relation both to one another and to the officials of the state itself.
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With his genealogical work complete, Pettit proceeds to address what he describes as statist, libertarian, and laissez-faire theories in political philosophy which argue counter to key elements of the idea of the state that he has developed. The first, statist approach raises the question of the countervailing powers that citizens do (or do not) enjoy against the sovereign. In response to the statist line that would imbue the state with uncontestable power, Pettit argues that citizens of the functional state would have both “a constitutional power of contesting the regime, [and] a power as an encompassing group of forcing it extra-constitutionally to change” (p. 225). Similarly related to the extent and limits of the state’s power, laissez-faire theories question the extent to which the state must restrain its exercise of power to allow markets to function and evolve autonomously. Through an analysis of the property regime, the monetary system, and corporate arrangements, Pettit illustrates that any state that is functional in his sense would inevitably be interventionist. In short, the modern economy effectively forces the modern state to be interventionist.
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Pettit offers a beautiful illustration of a key argument of the book as a whole in his response to the second counter-perspective identified above, which Pettit identifies with right-wing libertarians. Advocates of this position argue that “no state, regardless of how functional it is, can acknowledge significant rights on the part of individual citizens against it or against one another” (p. 225). This stance – defended prominently by Robert Nozick – rests on a commitment to natural rights that would restrict the scope and power of the function state. Pettit’s response to this line recalls his argument that on the one hand “functionality or statehood requires much less of the state than justice might do” (p. 63), but that, on the other hand, the state is “an entity that can increase in justice, by any of a variety of benchmarks” (p. 26). Here, as in the discussions of incorporation and decentralization, the response is appropriately equivocal. Pettit argues that “while the function of the state must countenance significant rights on the part of its citizens, specifically rights of civic security, it may recognize those rights on a narrower or wider front…. The functional state need not be just, but it need not be unjust either” (p. 263). Contra right-wing libertarians the state is not inherently hostile to the rights of individuals, but neither must it be ideally protective of them.
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This is a central and repeated theme in Pettit’s book, and constitutes his novel, “realist” contribution to contemporary theories of the state. He sets out not to construct a plausible narrative of how the state as it ought to be could emerge, but rather to trace a genealogy of how the functional state as it must be is robustly likely to emerge. In his realism and his reasoning – if not in his ultimate conclusions about the function of the state – Pettit’s approach is most reminiscent of Hobbes’s. Like Hobbes’s, his argument proceeds in a precise, almost mathematical fashion, with each step in the proof logically required by those preceding. This makes for a very persuasive argument, and one that puts a lot of pressure on its own premises. As one example, a great deal depends on the precondition of “an approximate balance of power among many members, if not among all” (p. 6). Pettit briefly defends this assumption, interestingly, along Hobbesian lines, but more might be said here.
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While Pettit owes a clear (and acknowledged) debt to earlier theorists of the state from Hobbes up through H.L.A. Hart, he eschews the tendency – particularly pronounced in the early theories of Hobbes, Locke, and Rousseau, to build “just-so” arguments intended to justify a particular vision of the ideal state. Clear-eyed and clearly-argued, <i>The State</i> sets out to tell it like it is.
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REFERENCES:<br />
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Hart, H.L.A. 1961. THE CONCEPT OF LAW. Oxford: Oxford University Press.<br />
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© Copyright 2023 by author, Edward W. Gimbel.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-49119033820087195012023-12-01T10:58:00.003-05:002023-12-01T11:14:19.000-05:00REGIME CHANGE: TOWARDS A POST-LIBERAL FUTURE<img src=https://images3.penguinrandomhouse.com/cover/9780593086902?auto=format&w=298&dpr=2&q=30 align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 07 (November 2023) pp. 98-103<br />
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REGIME CHANGE: TOWARDS A POST-LIBERAL FUTURE,
Patrick Deneen. New York: Sentinel. 2023. pp. 269. $30.00, ISBN 978-0-593-08690-2.<br />
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Reviewed by Mark Rush.
Department of Politics, Washington and Lee University. Email: rushm@wlu.edu.<br />
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In <i>Regime Change</i>, Patrick Deneen offers a vision of a postliberal future that would, essentially, turn back the clocks of the last few hundred years of liberal democracy. And, he does all this in a scant 260 pages. Needless to say, this is an ambitious work and project. As well, <i>Regime Change</i> really can’t be discussed without touching upon Deneen’s prior work, <i>Why Liberalism Failed</i> which provides the foundation for his discussion of a postliberal future. In this regard, much of <i>Regime Change</i> has already been discussed in reviews of and reactions to the diagnosis of liberalism that Deneen offers in the former work. It departs from—or, at least, gets out of the glare of--the prior commentary when Deneen essentially picks up the gauntlet he threw at himself and looks to describe a postliberal future and prescribe how to get there.
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The importance of this work is manifested in the nature of its critics. President Obama tipped his hat to <i>Why Liberalism Failed</i> by saying:
<blockquote>In a time of growing inequality, accelerating change, and increasing disillusionment with the liberal democratic order we’ve known for the past few centuries, I found this book thought-provoking. I don’t agree with most of the author’s conclusions, but the book offers cogent insights into the loss of meaning and community that many in the West feel, issues that liberal democracies ignore at their own peril. (https://iasculture.org/news/obama-recommends-why-liberalism-failed).</blockquote>
Other reactions to <i>Regime Change</i> have been equally powerful, eloquent, and voluminous because, in many cases, they emanate from denizens of the privileged classes that he criticizes (e.g., Szalai, 2023). Those with the educational opportunities, wealth, or simply the capacity to absorb the opportunity cost to challenge Deneen have done so. Those on whose behalf he advocates—the working classes, the “deplorables” described by Hillary Clinton, or, simply those but for the grace of gods or fate would have had access to the opportunities that elites have had—simply don’t have the time, skill set, or access to platforms that would enable them to celebrate with the same volume, eloquence, and tenor. These are the folks that Salena Zito covers in her journalism (Zito and Todd, 2018).
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Whether liberal democracies are, as Obama suggests, “ignoring” Deneen’s analysis or simply blind to it is less important than the fact that his description of politics in the USA and, perhaps, the global north is accurate. In the name of “progress”, liberalism “has generated a particularly virulent form of that ancient divide that pits ‘the few’ against ‘the many’” (x). In response, the masses have arisen in electoral revolts described by elites as “populist”. This is not news.
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Scholars across the disciplines note that the seeds of contemporary revolts were sewn not by demagogues, but by the same elites Deneen criticizes. Scholars such as Thomas Piketty (2017) and Branco Milanovic (2016) demonstrate that private capital accumulation and globalization have had disproportionately positive impacts on the global well-to-do and equally negative impacts on global have-nots. While the world may have become more equal, inequality within nations has become worse and resulted in those populist revolts.
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Deneen suggests that this is the inevitable result of liberalism’s failure because, long ago, its advocates sold the masses a bill of goods: “Liberalism proposed to overthrow [the] <i>ancient regime</i> and put in its place an order in which people, through their striving, ability, and hard work could create an identity and future based upon the sum of their own choices” (p. 3). Instead, liberalism created a <i>faux</i> free marketplace of merit that inevitably favored the privileged who had the time, resources, or wealth to engage in it effectively and efficiently. In this regard, liberalism replaced the restraints imposed by birthright with ones imposed by the benefits that accrue from winning in the meritocratic marketplace. As a result, the “guardrails” of the old regime—schools, universities, associations, churches, family—have either been destroyed or coopted to undermine the opportunity for advancement that liberal meritocracy promised (p. 5).
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In this respect, Deneen is particularly harsh on American higher ed. As noted in numerous responses to the <i>Students for Fair Admissions</i> decision, American higher ed is no longer an elevator for all classes (Rauch 2023). Instead, especially in elite schools, it has become a mechanism for reinforcing class differences. To a certain point, Deneen is observing simply the latest manifestation of Marx’s class tensions or, perhaps, the forces that explain “Why the Haves Come Out Ahead” (Galanter 1974). But, what Deneen observes seems worse than the systematic bias Galanter described. While commoners might not have the resources to beat a Rockefeller or Soros in court, once upon a time, their greater numbers gave them power at the ballot box. In <i>The Last Hurrah</i>, Mayor Skeffington had no problems bringing bankers and financiers to their knees with the threat of utilities work in front of the bank entrance (O’Connor). In the 21st century, however, the fantastic growth in private power enables elites to compete with and even insulate themselves from the power of government (Wittes and Blum, pp. 93-122). Whereas Teddy Roosevelt could go after trusts and monopolies, Elon Musk now holds the power to direct the outcome of the war in Ukraine (Ip 2023). Thus, Deneen observes:
<blockquote>Liberalism justifies the emergence of an elite whose primary self-assigned role was to prevent the masses from forestalling progress, either as revolutionaries who would be tempted to interfere in a capitalist economy, or as progressives who sought the overturning of traditional culture (p. 133).
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To remedy this elite insulation, Deneen proposes the reorganization of society along the lines of a “mixed constitution” such as that described by Aristotle, Polybius, and Machiavelli (p. 126). Instead of pretending to promote an Aristotelian “artful mixture of oligarchy and democracy,” (p. 127) to form a “middling” society, Deneen draws upon a more modern vision of a mixed constitution that would essentially balance the interests of social classes. While he suggests that such thinking is akin to the ancients, I think it is important to point out that it is echoed in modern calls for consociational democracy (Lijphart), or more recent assertions of identity politics that call for the promotion and maintenance of distinct group interests.
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<br />
In this regard, Deneen echoes, for example, Derrick Bell’s suggestion that a separate and truly equal system of public education might have better served minority students than the desegregation process that ensued in the wake of <i>Brown v. Board</i> (Balkin and Ackerman, p. 186). Desegregation allowed the well-to-do to flee to suburban or private schools; this consigned minority and poor urban students to public school systems that were under-funded and under-resourced. Once again, the elites escaped the costs of the mechanisms they imposed on the masses.
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<br />
Deneen’s vision would make sense if population and demographics were static, no one is born or dies, and people willingly remain in the caste or class they were assigned at birth. Under such circumstances—which would include, I think, a finite or unchanging supply of wealth and resources-- a mixed regime might promote the inter-class negotiation and bargaining that Deneen envisions. In reality, however, wealth can be created and lost. People do aspire to improve their lot even if they wish to retain or conserve their traditions. Traditional groups—think of a 20th-century “Chinatown” or “Little Italy”—rise and fall. A changing population is inherently dynamic.
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To remedy this, Deneen argues that “[t]oday’s elites must be forced to abandon their self-serving efforts in the face of overwhelming evidence that the social, economic, and political discourse they have pursued for the past fifty years has deeply harmed the prospects for flourishing among the working classes” (xv). Needless to say, the most important, operative word in that last quote is “forced”. Who is going to do this forcing? With what justification and rationale? Will the elites abide? To remedy this situation, Deneen dedicates the book to explaining how this could occur.
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Deneen looks to “re-integrate” divided societies under the moniker of “common good conservatism” (“CGC”), he aspires to reforge the bonds that once connected elites and the masses. His definition of CGC is a bit nebulous. But, he argues that it “combines the left’s commitments to a more egalitarian and communal economic order with the right’s support for social values that undergird strong and stable familial, communal, associational, and religious order” (p. 96). Needless to say, his vision of the common good is as contested a concept as similar visions offered by any other social critic. While the details may be contestable, the notion that societies ought to work to bridge and shrink social divides is not. The question remains: how to achieve this?
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One, simple answer is to call for some sort of Leviathan. This would not be Thomas Hobbes’ creature, however. This Leviathan would need to be able to control and reallocate private wealth and, while doing so, police the farthest reaches of pesky cyberspace. Finding a way to ensure that such a power could control itself as well as the governed would be no small chore. Failing that, Deneen makes several suggestions for reforms to political institutions and procedures that would entail, essentially, baby steps in the direction of controlling that private, elite power. These include:
<blockquote>● Force all groups to serve in the military—no exceptions for the well-to-do.<br />
● Promote vocational higher education<br />
● Increase the size of the House of Representatives <br />
● Break up cities and urban areas<br />
● Punish those who employ illegal immigrants. <br />
● Favor caucuses over primaries to enable the masses to counter the impact of the elite.<br />
● Promote government as a counterweight to private power (p. 181). <br />
● Pass laws to shore up marriage and the traditional family<br />
● Acknowledge and promote the Christian roots of American civilization (p. 182).</blockquote>
One could quibble with any of these suggestions. I focus on just a couple to note that they would not necessarily aid Deneen’s program. For example, critics, who complain about Republican minority rule and overrepresentation in Congress and the Electoral College (Klein 2018), contend that enlarging the House and maybe getting rid of the Senate would ensure appropriate levels of liberal/Democratic control. One has to figure that breaking up cities and urban areas would have the same salutary impact on the power of the littoral elites that Deneen looks to constrain. It’s hard to say whether promoting caucuses over primaries would help or hurt the interests of the commoners. But, if one gives any credence to the UCLA model of political parties (Bawn, et al. 2012), altering the nomination process won’t make much of a difference if parties are the playthings of private interests and private spending in elections continue to outstrip public (Bipartisan Policy Center, 2019).
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Make no mistake: Deneen’s suggestions are thoughtful and important. Again, the question looms: What force can be marshalled (and by whom) to bring such changes about? Somewhere, something akin to a proletarian vanguard, Hobbesian Super-Leviathan, or a simple centralization of governmental power must arise or occur. What crisis would precipitate the aggregation of such power as well as the public support necessary to legitimize it? 9/11 did not do it. COVID did—but only for a short time (Malm).
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Climate change could generate the outcry and shared sense of urgency necessary to support the centralization of government power Deneen’s vision requires. As Ross Mittiga (2021) demonstrates, the instruments of liberal democracy are failing to generate the actions necessary to preserve the common good with regard to maintaining the environment. He suggests that a centralization of executive power, a rearticulation and corresponding shrinking of the scope of liberties, and a means of getting around the inefficiencies of deliberative democracy might be necessary to take adequate actions to control climate change in the name of a truly global common interest of planetary survival. But, the same question looms: does climate change present enough of a crisis to entice elites to shed their privilege in the name of common survival? Will all people acknowledge the need for and legitimacy of the centralized, leviathan-like power necessary to achieve the common good?
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In closing, I offer one quibble: based on Deneen’s analysis, it seems that the premise of <i>Regime Change</i> is misstated. Liberalism did not fail; it has succeeded. Private power has grown exponentially to such a point that the public power of government may seem inadequate for preserving the common good. While the notion of a common good may be off-putting to Deneen’s critics, it must be noted that Congress is charged with providing for the “general welfare” in Article I, section 8 of the U.S. Constitution.
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One can debate Deneen’s diagnoses and analyses of the sources of contemporary political dysfunction and elite hypocrisy and his remedies. But, there is no debate on the existence of class tension, political polarization, and worsening inequality across the world and in liberal democracies in particular. To promote—and attain—any change of the revolutionary scope described by Deneen will require a crisis or the existence of an actor powerful enough to control elites and constrain liberties. In the end, then, while <i>Regime Change</i> remains an important, visionary, courageous work that will continue to generate important debate about the state of politics, it leaves the reader hanging. After all the debating is done, the question remains, how to achieve the revolutionary changes necessary to repair or improve liberalism so that a postliberal society will be better?
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REFERENCES:<br />
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Balkin, J. and Bruce Ackerman. 2001. <i>What Brown v. Board Should Have Said.</i> New York: New York University Press.<br />
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Bawn, K. et al. 2012. “A Theory of Political Parties: Groups, Policy Demands and Nominations in American Politics.” <i>Perspectives on Politics.</i> 16 August. https://www.cambridge.org/core/journals/perspectives-on-politics/article/theory-of-political-parties-groups-policy-demands-and-nominations-in-american-politics/2F7996D5365C105C3B91CD56E6A1FAA3 Last accessed 29 September 2023.<br />
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Bipartisan Policy Center. 2019. <i>Campaign Finance in the United States.</i> https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Democracy-Campaign-Finance-in-the-United-States.pdf Last accessed 29 September 2023. <br />
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Galanter, Marc. 1974. “Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change.” <i>Law and Society Review</i> 9: 95-160. <br />
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Ip, Greg. 2023. “How Elon Musk Came to Influence the Fate of Nations.” <i>Wall Street Journal</i> 27 September. https://www.wsj.com/economy/how-elon-musk-came-to-influence-the-fates-of-nations-414bbb67?mod=Searchresults_pos1&page=1 Last accessed 29 September 2023.<br />
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Klein, Ezra. 2018. “The Rigging of American Politics.” Vox.com 16 October. https://www.vox.com/policy-and-politics/2018/10/16/17951596/kavanaugh-trump-senate-impeachment-avenatti-democrats-2020-supreme-court Last accessed 29 September 2023. <br />
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Lijphart, A. 1969. “Consociational Democracy.” <i>World Politics</i> 21: 207-25.<br />
<br />
Malm, A. 2020. <i>Corona, Climate, Chronic Emergency: War Communism in the 21st Century.</i> London: Verso Press. <br />
<br />
Milanovic, B. 2016. “Why the Global 1% and the Asian Middle Class Have Gained the Most from Globalization.” <i>Harvard Business Review.</i> 13 May. https://hbr.org/2016/05/why-the-global-1-and-the-asian-middle-class-have-gained-the-most-from-globalization. <br />
<br />
Mittiga, R. 2021. “Political Legitimacy, Authoritarianism, and Climate Change.” <i>American Political Science Review:</i> 1-14. <br />
<br />
O’Connor, Edwin. 1956. <i>The Last Hurrah.</i> Boston: Little, Brown. <br />
<br />
Piketty, T. 2017. <i>Capital in the Twenty-First Century.</i> Cambridge: Harvard Belknap Press. <br />
<br />
Rauch, J. 2023. “Let’s Smash the College Admissions Process.” <i>New York Times</i> 1 June. https://www.nytimes.com/2023/06/01/opinion/college-admissions-affirmative-action.html Last accessed 29 September 2023. <br />
<br />
Szalai, Jennifer. 2023. “When ‘Regime Change’ Means Returning America to an Idealized Past.” <i>New York Times.</i> 7 June. https://www.nytimes.com/2023/06/07/books/review/regime-change-patrick-deneen.html Last accessed 27 September 2023. <br />
<br />
Wittes, B. and Gabriella Blum. 2016. <i>The Future of Violence.</i> United Kingdom: Amberly.
Zito, Salena and Brad Todd. 2018. <i>The Great Revolt: Inside the Populist Coalition Reshaping American Politics.</i> Forum Books. <br />
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© Copyright 2023 by author, Mark Rush.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-21526378324791252502023-08-30T14:54:00.000-04:002023-08-30T14:54:00.138-04:00THE INTRICACIES OF DICTA AND DISSENT<img src=https://assets.cambridge.org/97811087/94886/cover/9781108794886.jpg align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 06 (August 2023) pp. 83-88<br />
<br />
THE INTRICACIES OF DICTA AND DISSENT,
by Neil Duxbury. Cambridge: Cambridge University Press, 2021. pp. 260. Cloth $115.00. ISBN 9781108841498. Paper: $39.99. ISBN 9781108794886.
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Reviewed by Chris Monaghan., School of Law, University of Worcester, UK. Email: c.monaghan@worc.ac.uk.
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Neil Duxbury in <i>The Intricacies of Dicta and Dissent</i> offers a thought-provoking account of the subject matter through the form of two extensive essays. In his first essay on <i>Dicta</i>, Duxbury observes that “[l]awyers and judges do not always agree – indeed are not always sure – what is and what is not <i>obiter</i> in a judgment” (p. 5). He is clear that within the common law, the distinction between <i>ratio decidendi</i> (the binding reasons for the decision) and <i>obiter dicta</i> (which is not binding) is that it “serves as a brake against judges formulating common-law rules<i> ultra vires</i>” (p. 8). In the second part of his essay on <i>Dicta</i>, Duxbury considers the importance of <i>stare decisis</i> in the emergence of <i>obiter dicta</i>, but is clear that these concepts did not emerge in “tandem” (p. 15). He views the emergence of <i>obiter dicta</i> as “[emerging] not with the acceptance that decisions by courts should bind as precedents. It emerges, rather, once making decisions becomes a recognizable function of the judiciary” (p. 18). In part three, “‘<i>Obiter</i>’ As Legal Entity”, Duxbury points to sixteenth-century lawyers being instructed that when relying on an earlier case as a precedent, that they had to distinguish between “points of law” and “bye-matters” (p. 19). It was becoming clear in the sixteenth and seventeenth centuries that <i>obiter dicta</i> was not considered to be part of the law, although it could have some use in the absence of <i>ratio</i> (pp. 19-21). Nonetheless, Duxbury is clear that some judges still believed <i>obiter</i> had some value, and whilst from the eighteenth century onwards, “[a] simple message is repeated from one legal generation to the next: <i>obiter</i> opinions are not binding on a court. But this is hardly the whole picture” (p. 24). Indeed <i>obiter</i> is both “slippery” and “misleading as a concept” and by the end of the twentieth century, English judges “are now and again to be found according to particular <i>dicta</i> a more elevated status” than earlier judges (pp. 25-26).
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Duxbury’s consideration of “<i>Dicta</i> depicted” is interesting and he makes sound observations, such as how a judge might, depending on the context, refer to <i>obiter</i> as a secondary source, and then subsequently disregard it as being unimportant (pp. 27-28). So is <i>obiter</i> just a by the way comment? Duxbury notes that “ [a]lthough the standard description of <i>obiter dicta</i> is that they are comments made in passing, English judges and lawyers, while accepting this description, depict them in other ways besides” (p. 28). Duxbury’s description of how, depending on the circumstances, <i>dicta</i> is depicted by lawyers and judges is useful to the reader, as it does much to demonstrate the ambiguity around <i>dicta</i>. This discussion is continued in part five of the essay. It is interesting to read Duxbury’s assessment that judges, whilst being the ones to produce and interpret dicta, have often been prompted to do so by the lawyers involved in the proceedings. Duxbury notes the modern reluctance of judges to be drawn into making <i>obiter dicta</i> (pp. 33-34). The contextual value of <i>dicta</i> is emphasized by Duxbury, as this can be relevant in “the scene setting” and explaining the decision, or to pass comment on the conduct of the parties (pp. 35-36). Duxbury is skeptical that <i>dicta</i> can be praised as showing how the law might develop in the future, as <i>dicta</i> [covering particular circumstances or conduct] “even where they do exist, will not necessarily hold sway in future courts (p. 42). Duxbury’s analysis of the benefits and disbenefits of <i>dicta</i> is balanced. The next part of the essay on “Engines of Confusion” continues the discussion and looks at whilst <i>dicta</i> might be relied upon by a later court, it can never be as an authority. Duxbury notes the judicial frustration in the twentieth century of counsel relying on <i>obiter</i> in preference to the available ratio (p. 51). More worryingly for sitting judges, was the concern that they might regret earlier <i>dicta</i> and feel constrained by their previous comments.
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Duxbury observes that regarding <i>obiter</i>, “[j]udicial self-censorship is a decidedly limited strategy”, given that the common law judges would have difficulty in refraining from engaging in <i>obiter</i> (p. 60). He also observed that if one was to engage in treating anything unnecessary to the outcome as <i>obiter</i>, then <a name='more'></a>this gives rise to a “judicial lament” of not doing justice to “certain observations”, or having to treat an entire dissent as <i>obiter</i> (p. 63). Duxbury proceeds to consider the weight put on <i>dicta</i> and whether particular types of <i>dicta</i> can be distinguished. He notes that modern judges are inclined “to posit that when <i>dicta</i> are on point and not contradicted by precedent, and when they represent convergent judicial opinion, they should be presumed weighty, and possibly treated as dispositive” (p. 85). The esteem that a judge is held to by their peers and successors, is also important as to how their <i>dicta</i> will be treated in the future and the relative weight attached to it. As Duxbury makes reference to a remark by Lord Hoffmann in <i>R (on the application of Godmanchester Town Council) v Secretary of State for the Environment</i>, where His Lordship stated that “there are <i>obiter dicta</i> and <i>obiter dicta</i>” and that Lord Denning’s <i>obiter dicta</i> was to be held in high regard (p. 346).
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The remainder of this review will focus on Duxbury’s second essay, which explores Dissent. Judicial dissent is a particular area of interest to many common law lawyers and academics, and is sometimes featured in extra-judicial and post-retirement writing (as drawn upon by Duxbury in his essay). Duxbury observes that a dissent “is technically speaking, an <i>obiter dictum</i> [thus]… it can be removed from the narrative of a case without the decision in the case being affected” (p. 127). As Lord Nicholls of Birkenhead, a retired Lord of Appeal in Ordinary, observed “[t]hey have no legal effect in the cases in which they are given (p. 127). Duxbury is of the view that although it is <i>obiter dicta</i>, a dissent should be treated differently, as the literature is far more concerned with judicial dissent than judicial <i>dicta</i> more broadly. Indeed, it is true that the appeal of judicial dissent fascinates many academics.
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Duxbury dismisses the argument that it is impossible to unintentionally dissent and indeed notes that English appellate judges will “quite often set forth opinions underpinned by dissentient sentiments without going so far as to dissent” (p. 131). He is clear that when judges dissent, it does not necessarily mean that they do so for the same reasons as a fellow judge, who also happens to dissent. Therefore, this explains the use of individual dissents rather than the use of joint dissenting opinions (p. 131). There is an interesting discussion on how dissents are viewed, with Duxbury noting that even dissenters (more generally in society, and including judges) will often acknowledge “that agreement on an outcome is the ideal, and that their having felt moved to dissent, being indicative of a suboptimal outcome, is a matter for regret” (p. 134). Duxbury cites Lord Reid’s dissent in <i>Shaw v DPP</i> as one such example of where a judge has regretted that they had to dissent from the majority. Duxbury then provides an interesting discussion on the nature of judicial dissent and how it has operated within a comparative and historical perspective.
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In part three of his essay on Dissent, Duxbury is clear that a court can give a reasoned judgment without there being overt evidence of judicial dissent during the deliberations stage (pp. 152-154). But is there a benefit in having judicial dissents, as their existence might help to develop the law? Duxbury provides an example of where a dissent did lead to a statutory change in the law, such as Lord Denning’s dissent in <i>Scruttons Ltd v Midland Silicones Ltd.</i> Duxbury also considered that sometimes a dissenting opinion is adopted by a future appellate court: “Thus it is that dissenting judges sometimes lose the battle but win the war” (p. 157). Interestingly, Duxbury notes that even if a dissent is endorsed by a future court, it does not mean that the law will remain unaltered in the future (p. 158). Duxbury considers the arguments against dissents being said to have changed the law, giving a key example of where it might not be possible to prove a causal link between a dissent and subsequent reform. Returning to Denning’s dissent in <i>Scruttons Ltd v Midland Silicones Ltd</i>, Duxbury notes that “it would be rash to presume that the legislation was attributable, certainly that it was attributable solely, to… [the dissent]” (p. 161).
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Part four of the essay is unsurprisingly informative and thoughtful, with consideration as to whether legal change is always a positive, whether dissents can be accused of creating uncertainty and demonstrates a lack of judicial discipline, and whether “serial contrarians [Duxbury’s dissenting judges] are often considered broken records”, who are incapable of winning over their colleagues (pp. 165-166). Duxbury challenges the arguments that judicial dissents are linked to democracy, or that dissenters are prophets, who are predicting the future consequences of a decision (pp. 169-172). The discussion is nuanced and balanced, willing to consider the differing positions, and capable of supporting his arguments with sound evidence. Duxbury observes that there could be a case for saying that dissents can act “as a foundation for future law”, but it is one that can “be easily overplayed” (p. 174). There is an interesting consideration as to why judges dissent, whether out of conscience, or the sense that the majority is wrong. Duxbury disagrees with Roscoe Pound’s assertion that a dissent needs to offer a “useful critique of the opinion of the court”, rather than just being made on a point of conscience, as dissents can be “cathartic” and serve as a way to convince others that the law is wrong (i.e., the death penalty in the United States of America) (p. 177).
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In “Dissents, Decisions, and Courts”, the fifth part of his essay, Duxbury addresses the background context. For example, Duxbury observes that factors such as larger benches, or less workload might increase the chances of dissent (pp. 178-179). It is not hard to agree with Duxbury’s assertion that the reputation of a judge can impact how a dissent is received. Likewise another factor such as opinion writing style, which on its own would not have an impact “on how judicial dissents are received”, can be relevant (p. 180). He gives the example of how brevity, or longevity, in a dissenting opinion can both be praised and it is easy to think of cases before the House of Lords and Supreme Court in the United Kingdom where there were multiple dissents, one lengthy and the other brief, yet still both well-received (for example Lord Mance and Lord Bingham’s dissenting opinions in <i>R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (Bancoult (No.2))</i>.
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Part six considers the English courts and the impact of the historical practice of judges giving individual judgments orally after hearing the appeal and not taking time to reserve judgment. Therefore, did this style of working lead to more dissents, as judges would be working individually and not have time to consult with their fellow judges? To answer this, Duxbury considered the history of the English courts and the practice of judges giving judgment against their own opinion in order to ensue unanimity (see for example Bryan CJ in <i>Sutton v Forster</i>), and the perceived need to hide judicial disagreement (pp. 190-191). This part of the essay provides a fascinating account of judges who felt that they needed to try and reach an agreed decision, the impact of when a court could not agree and the subsequent need to find a majority view out of a number of different positions. But as Duxbury notes, unanimity was preferred and gives the example of the impact of Lord Mansfield (Chief Justice of the King’s Bench), where because of his opposition to dissents, this meant that there was unanimity in the Court of King’s Bench (p. 196). Duxbury credits Mansfield’s approach to him being a mercantile lawyer (the need for certainty being very important) and his strong work ethic. This was not a view shared by all judges, including Mansfield’s successor Kenyon CJ, who could see the benefit of individual judges being able to dissent. As Duxbury observes, Mansfield’s approach to unanimity was not the norm, as whilst it was the ideal, it was departed from in practice (p. 197).
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In part seven, Duxbury makes the case for how judicial unanimity declined in the English appeal courts and how there could be a possibility that two Law Lords, when jointly hearing an appeal in the House of Lords, might both reach a different decision (p. 202). It is interesting to read Duxbury’s account on the impact and development of the Judicial Committee of the Privy Council, and also the contemporary view within the English appellate courts that unanimity is to be preferred.
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In part eight of his essay, Duxbury notes the reluctance of the Law Lords (from the nineteenth century onwards) to dissent and the idea of judicial self-restraint. Interestingly, Duxbury notes, that it is sometimes the case that, where there is no dissent in a decision, this begs questions as to why not (one example being <i>R (on the application of Miller) v The Prime Minister (Miller No.2)</i>, where the UK Supreme Court was unanimous in its decision that the Prime Minister’s advice to the late Queen Elizabeth to prorogue Parliament was unlawful, albeit it was unsurprisingly a very controversial decision) (pp. 214-215). Duxbury considers how judges dissented, such as Lord Reid whose dissent was “opinions first and dissents second” (p. 218). He notes that many non-lawyers would only be familiar with exceptional cases of dissent, namely Lord Atkin’s dissent in <i>Liversidge v Anderson</i>, which concerned the Home Secretary’s powers to intern non-British nationals during the Second World War. One must nod in agreement with Duxbury’s comment “[t]hat English law offers up few memorable dissents does not mean that it yields only a meager crop of powerful dissents. Dissenting opinions in English case law are rather like restaurants in metropolitan neighborhoods. Anyone who makes the appropriate effort will discover a range of impressive ones, and will probably judge some of them to be a notch above the range…” Nonetheless, Duxbury notes the small number of important dissents and correctly notes that unlike in other common law jurisdictions, within England and Wales, there is a lack of consideration as to what makes for a great dissent. The discussion on quasi-dissents and when judges clearly stop short of dissenting in their opinions is equally fascinating.
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In the remaining two parts of the essay, Duxbury takes the reader through a discussion of minorities as authorities (nothing that ‘[v]indicated dissents… are not particularly unusual… [as a] court capable of overruling a precedent quote often does so by aligning with dissent accompanying the earlier judgment instead of following the judgment itself’) and finally how judges reach an agreement (p. 235).
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Duxbury’s essays will appeal to both academic and practicing lawyers, students of law, and members of the judiciary. The appeal of this book will undoubtedly be strongest amongst those individuals either based in a common law jurisdiction, or who have an academic or professional interest in the common law. The subject-matter within the book and analysis offered, might have justified (subject to more elaboration) publishing both essays as standalone books. The inner legal historian within many lawyers will especially enjoy Duxbury’s extensive footnotes, and these will no doubt lead many readers down the rabbit hole of their own further research. The book is thoroughly researched and is an enjoyable read. I will certainly be returning to this book as a tool for my own research and trust that many other academics will do so also.
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CASES:
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<i>Bancoult v Secretary of State for Foreign and Commonwealth Affairs</i>,
[2008] UKHL 61.
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<i>Godmanchester Town Council v Secretary of State for the Environment</i>,
[2007] UKHL 28, [21]-[22].
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<i>Liversidge v Anderson</i>, [1942] AC 206.
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<i>Miller v The Prime Minister</i>, [2019] UKSC 41.
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<i>Shaw v DPP</i>, [1962] AC 220, 272.
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<i>Scruttons Ltd v Midland Silicones Ltd</i>, [1962] AC 446, 481.
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<i>Sutton v Forster</i>, YB Mich 1 Rich III 1 (1483).
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© Copyright 2023 by author, Chris Monaghan.
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<br />
<a target="_blank" href="https://www.amazon.com/Intricacies-Dicta-Dissent-Neil-Duxbury-ebook/dp/B09B3XJMFK/ref=sr_1_2?crid=3G5KRKM5WSC00&keywords=neil+duxbury&qid=1692718272&sprefix=neil+duxbury+%252Caps%252C172&sr=8-2&_encoding=UTF8&tag=lawpolitbookr-20&linkCode=ur2&linkId=1bddfc05d78928e51ac233825214d1d9&camp=1789&creative=9325">Intricacies of Dicta and Dissent</a>
Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-64063069601848090772023-08-30T14:53:00.001-04:002023-08-30T14:53:00.131-04:00PERSUADING THE SUPREME COURT: THE SIGNIFICANCE OF BRIEFS IN JUDICIAL DECISION-MAKING<img src=https://kansas-unipress-us.imgix.net/covers/9780700633630.jpg?auto=format&w=298&dpr=2&q=30 align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 06 (August 2023) pp. 79-82
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<br />
PERSUADING THE SUPREME COURT: THE SIGNIFICANCE OF BRIEFS IN JUDICIAL DECISION-MAKING, by Morgan L.W. Hazelton and Rachael K. Hinkle. University Press of Kansas, 2022. pp. 296. Paperback $32.95. ISBN: 9780700633630. Ebook $24.99. ISBN: 9780700633647.
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Reviewed by Jessica A. Schoenherr. University of South Carolina. Email: js122@mailbox.sc.edu.
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Given their genuine love for the language of the law and their own high standards for writing in that language, Supreme Court justices are understandably frustrated by legal documents that lack readability and flair. In interviews with news outlets, law school deans, and legal scribes, the justices consistently offer attorneys the same advice: well-reasoned, well-written, and short briefs win cases and poorly written briefs do not (see, e.g., Garner and Roberts, 2010). The justices pay attention to the arguments that attorneys make (Johnson, Wahlbeck, and Spriggs, 2006), and they hate wasting their time parsing poorly written arguments (Scalia and Garner, 2008). Consequently, good arguers become repeat players who dominate the Court’s docket (Biskupic, Roberts, and Shiffman, 2014; McGuire, 1993), and the attorneys who fail to present effective arguments lose credibility and never show up again.
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But what are repeat players putting in their briefs? What makes their arguments better? And do those better arguments increase the probability of winning in a world where ideology explains so much of judicial behavior? These are the questions Morgan Hazelton and Rachael Hinkle answer in their fantastic new book, <i>Persuading the Supreme Court: The Significance of Briefs in Judicial Decision-Making</i>. Over the course of six chapters, the authors show that experienced attorneys use briefs to present information the justices need in a manner that limits cognitive burden and thus makes it easier for the justices to decide the case. Building on past work (see Hazelton, Hinkle, and Spriggs, 2019), Hazelton and Hinkle say that good arguments emphasize points that appear across several briefs to ensure those points land. Experienced and well-resourced attorneys write longer briefs but those briefs tend to be easier to read. They talk about policy implications and skillfully coordinate their arguments across merits and amicus briefs. And, importantly, this attention to detail matters, as the justices are more likely to side with these longer, easy-to-read, and policy-focused arguments and incorporate them into their opinions.
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The centerpiece of this book is the extensive and varied data collection, which the authors unveil in Chapter 1. Hazelton and Hinkle have data on every merits and amicus brief submitted to the Court in orally-argued cases from 1984 to 2015, which means they examine more than 26,000 briefs. They analyze the text of these briefs using several different measures, including different word and citation counts, the amount of policy-centered content in each brief, and the overlap of arguments across briefs, which the authors measure using cosine similarity (see also Hinkle 2015). Given their long period of analysis, Hazelton and Hinkle show over-time shifts, like the fact that briefs universally got more difficult to read when the Roberts Court began in 2005 (p. 33), as well as overall trends. The authors also collected data on every attorney whose name appeared on a brief during this period, including each filer’s past briefing experience and their service as clerks or members of the Office of the Solicitor General. As though this wealth of empirical data were not enough, Hazelton and Hinkle conducted interviews with attorneys and former clerks, and this trove of content bolsters their hypotheses and findings.
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In Chapter 2, Hazelton and Hinkle examine briefs produced<a name='more'></a> by repeat players and well-resourced litigants. Acknowledging that experienced and well-financed attorneys are more likely to win before the justices (Galanter, 1974; Sheehan, Mishler, and Songer, 1992), the authors look to see if attorneys backed by credentials and money approach briefs differently than other attorneys. It turns out they do. Experienced and well-resourced attorneys write longer briefs, but they are easier to read. Experienced attorneys are also more likely to target the median justice and they include more of the policy-centered language the justices want to see in their briefs. In short, the results presented in Chapter 2 suggest experienced attorneys know what the justices want to see in a brief and how to provide it.
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The results provided in Chapter 3 suggest that experienced attorneys are better at coordinating their arguments and ensuring key points get emphasized in briefs. This chapter is, arguably, the most important in the book, because it gets at the heart of Hazelton and Hinkle’s argument: good briefs provide the justices with the information they actually want by using repetition, policy-focused language, and readable arguments. Here, the authors show that experienced attorneys are better at coordinating arguments; their briefs are more likely to contain arguments that are similar to those put forward by the other parties that filed in the case. The findings in this chapter reveal that experienced attorneys are better at making sure the most important pieces of an argument get repeated, so the justices understand these arguments are both relevant and the consensus answer to the problem at hand.
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Having established that experienced and well-resourced attorneys approach briefs differently than their less-experienced and less-funded counterparts, Hazelton and Hinkle next turn to the big question: does it matter? In Chapter 4, the authors look at the information provided by anyone supporting the petitioner (both the party and the amici) and compare that to the information provided by anyone supporting the respondent. To do this, the authors turn their analytical angle to the collective, looking at <i>all</i> the information provided to the justices in favor of one side of an argument or the other. The results suggest the justices, both individually and as a Court, respond more positively to the side whose total presentation is more thorough. Experienced attorneys are, again, more likely to secure a vote than inexperienced attorneys, at least in part because they can make the better (read: longer and more complete) argument. This chapter suggests the justices care about the content of the many briefs submitted to the Court, not just which side has more support via amicus briefs.
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Chapter 5 moves beyond the win/loss column and looks at the influence that briefs have on the final opinion. While work by Corley (2008) established the justices regularly borrow from briefs when writing their opinions, particularly when an experienced attorney or the Solicitor General wrote that brief, Hazelton and Hinkle offer a nuanced view. They suggest that the justices’ borrowing is more selective and centers on the specific information that gets repeated across briefs. They find that the more similar a brief is to the arguments presented by other interested parties, the more likely the justices are to use that information in their opinion. Or, put differently, the more a point gets hammered home across multiple briefs, the more likely the justices are to incorporate that information into their opinion. This, the authors point out, is the true lasting influence of a brief: it can shape the law for decades to come by influencing the justices’ opinions.
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The authors end their empirical analysis with a wide view. They look at how similar opinions are to all the information the justices receive. In Chapter 6, Hazelton and Hinkle show the justices’ opinions are more similar to sides that provide more information and policy focused language. Importantly, their opinions are also more likely to reflect parties that share language than they are to reflect parties whose collective arguments contain numerous and novel arguments. Hazelton and Hinkle contend this means the justices genuinely do prefer arguments that mirror each other, or at least address similar points, which again lends credit to their overarching theory that good briefs provide useful information, but not too much of it.
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<i>Persuading the Supreme Court</i> is a book that is well worth a read for anyone trying to understand how attorneys win over the justices with the use of their words. It is a worthy heir to both Collins’s (2008) book on amicus briefs and Johnson, Wahlbeck, and Spriggs’s (2006) study of argument quality because it too advances scholars’ understanding of how attorneys and other interested parties can influence outcomes at the Supreme Court. Hazelton and Hinkle wrote a book that is easy to read, comprehend, and tie together, as they use the same case (<i>Florida v. Harris</i> [2013]) to structure each chapter, which gives readers more information about the case at each turn (who knew reading about police dogs could be so much fun?). Finally, this is a book that provides a beautifully detailed pivot for further research on briefs (and arguments broadly). I promise you will have several new research ideas of your own by the time you finish reading this book, and you will be grateful to Hazelton and Hinkle for giving them to you.
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REFERENCES:
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Biskupic, Joan, Janet Roberts, and John Shiffman. 2014. “The Echo Chamber: A Small Group of Lawyers and its Outsized Influence at the U.S. Supreme Court.” <i>Reuters</i>. URL: https://www.reuters.com/investigates/special-report/scotus/
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Collins, Paul M. 2008. <i>Friends of the Court: Interest Groups and Judicial Decision Making</i>. New York: Oxford University Press.
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Corley, Pamela C. 2008. “The Supreme Court and Opinion Content: The Influence of Parties’ Briefs.” <i>Political Research Quarterly</i> 61(3):468–478.
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Galanter, Marc. 1974. “Why the Haves Come out Ahead: Speculations on the Limits of Legal Change.” <i>Law and Society Review</i> 9:95–160.
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Garner, Bryan A. and John G. Roberts. 2010. “Interviews with United States Supreme Court Justices: John G. Roberts Jr.” <i>The Scribes Journal of Legal Writing</i> 13:5–40.
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Hazelton, Morgan L.W., Rachel K. Hinkle and James F. Spriggs. 2019. “The Influence of Unique Information in Briefs on Supreme Court Decision-Making.” <i>Justice System Journal</i> 40(2):126–157.
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Hinkle, Rachael K. 2015. “Legal Constraint in the U.S. Courts of Appeals.” <i>Journal of Politics</i> 77(3):721–735.
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Johnson, Timothy R., Paul J. Wahlbeck and James F. Spriggs. 2006. “The Influence of Oral Argument Before the U.S. Supreme Court.” <i>American Political Science Review</i> 100(1):99– 113.
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McGuire, Kevin T. 1993. “Lawyers and the U.S. Supreme Court: The Washington Community and Legal Elites.” <i>American Journal of Political Science</i> 37(2):365–390.
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Scalia, Anontin and Brian A. Garner. 2008. <i>Making Your Case: The Art of Persuading Judges</i>. Saint Paul, Minnesota: Thomas/West.
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Sheehan, Reginald S., William Mishler and Donald R. Songer. 1992. “Ideology, Status, and the Differential Success of Direct Parties Before the Supreme Court.” <i>American Political Science Review</i> 86(2):464–471.
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CASES:
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<i>Florida v. Harris</i>, 568 U.S. 237 (2013).
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© Copyright 2023 by author, Jessica Schoenherr.
Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-23551120512581936802023-08-30T14:52:00.001-04:002023-08-30T14:52:00.396-04:00CITY, STATE: CONSTITUTIONALISM AND THE MEGACITY<img src=https://global.oup.com/academic/covers/pdp/9780190922771 cc=us&lang=en&# align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 06 (August 2023) pp. 75-78
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CITY, STATE: CONSTITUTIONALISM AND THE MEGACITY,
by Ran Hirschl. New York: Oxford University Press, 2020. pp. 272. Cloth $39.95. ISBN: 978-0-190-92277-1.
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Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm@wlu.edu.
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Ran Hirschl has written an important and provocative book that touches upon a core question of constitutional law: what happens when constitutional provisions become so antiquated and ossified that they must be changed but there is no mechanism in place to make such changes? He argues that constitutions across the world must be modernized to address the increasingly central role of cities and megacities in global politics. As the world’s population continues to grow, and as more of that population lives in or moves to increasingly dense urban areas, cities and megacities are becoming more central to the conduct of the world’s politics. Yet, they are not empowered to address the challenges posed by such urbanization and the global challenges that disproportionately affect their populations.
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Contemporary constitutional institutions and imagination are captive of “constitutional structures, doctrines, perceptions, and expectations that were conceived with the modern nation-state and germinated through the age of revolution, a historical process that saw the subjugation of the sovereign city” (p. 9). Hirschl argues that states have, historically, been driven by an “existential fear of large cities” (p. 35). As he notes, “megacities are densely populated and are home to critical masses of people” (p. 35); they facilitate close human interaction, and the rapid spread of ideas. This creates “a potentially explosive combination of people, ideas, and spatial conditions that, from a statist point of view, is better kept in check” (pp. 35-36). Accordingly, cities across the globe tend to be insufficiently empowered to exercise the autonomous authority that would be appropriate to the roles cities now play in setting and/or managing much of the world’s political agenda.
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Drawing from examples across the globe, Hirschl demonstrates the almost universal pattern in which cities have virtually no independent constitutional authority and that they are politically underrepresented within their nations. He sometimes casts this in terms of a global urban-rural rift, such as “localist resentments” (p. 49), or “anti-globalist sentiments” (pp. 42-49). As well, he suggests that this tension is exacerbated because cities tend to be characterized by progressive, destabilizing ideas and energy that threaten the more populist, rural parts of their nations. As a result, nations and states maintain a catalog of mechanisms ranging from malapportionment, at the expense of urban areas, to a refusal that will modernize constitutional architecture to prevent cities from marshaling the fiscal and legal resources appropriate and necessary to address the needs of their populations.
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Exceptional cases, such as Seoul, Gwangju, or Hong Kong, demonstrate how well cities can address challenges posed by housing shortages, immigration, etc. if they are granted the resources to do so. In contrast, many cities across the global north <a name='more'></a>are unable to address such problems without fleeing to the arms of private or corporate financiers that end up controlling tremendous portions of urban real estate in return for loans. Absent the constitutional power to tax and control capital, cities find themselves, on the one hand, to be the source of privilege and power for the well-to-do while, on the other, others are unable to tend to the needs of their less-well-off residents.
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In sum, Hirschl offers six key points on which he grounds his conclusion that cities, or megacities, require more independent power. First, national legislatures tend to be more malapportioned at the expense of cities. Second and related, this underrepresentation renders cities unable to extract from the state the resources necessary to address their unique challenges. Third, the global pattern of increased urbanization demonstrates not only the practical need for cities to have more independent power, but also the crisis that looms if cities do not acquire the power necessary to address their needs. Fourth, insofar as this global pattern of urbanization is rendering the world more densely populated, it is necessary for nations to revisit and modernize antiquated notions of constitutionalism to enable states ,and megacities, the ability to address the needs of their populations. Fifth, and in particular, this would enable cities to address the challenges posed by the increasing inequalities among their more densely packed residents. Finally, states and scholars must reconsider the nature of federalism to treat different constituent units (cities, states, provinces, etc.) differently and enable them to address their political needs (p. 173).
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Hirschl does a tremendous job of diagnosing and describing the plight of cities across the globe. His argument and analysis are unassailable: the antiquated visions of state power on which contemporary constitutional structures are based are irrelevant,if not contradictory and damaging,to contemporary global realities. He is driven in part by a clear concern for matters of social justice and equality. Were cities granted more power or, at least, power proportionate to their role, impact, population, importance, responsibility, these cities could serve their residents more effectively and help to address problems that affect them disproportionately. The positive potential posed by city empowerment is manifest in international city agreements and statements such as the C40 Climate Leadership Group, the World Mayors Council on Climate Change, the <i>World Charter on the Right to the City</i>, the Montreal Charter of Rights and Responsibilities, and so forth (see generally chapter 4, “Attempts at Self-Empowerment”).
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In some ways, Hirschl’s focus on cities actually understates the importance and gravity of his underlying analysis. As the world population continues to grow and people gravitate towards cities, it is logical to assume that the scope and definition of rights, liberties, and governmental power will merit reconsideration. The impact of the exercise of my speech and property rights on my neighbors is radically different if we live miles apart, instead of living on top of one another. The state must play a much more active role of refereeing clashes among rights-bearing individuals in densely populated areas. The same can be said for managing services and addressing the impact of economic inequalities. This is the start of a reconsideration of western liberalism—not simply the role of cities.
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Hirschl suggests that the natural diversity of cities and megacities will render them more likely to govern in a progressive, inclusive manner. While one might hope this is the case, the potential for dystopia looms as shown in accounts of life in company towns. As well, to the extent that they are corporate entities, life under the government of independent megacities could be as illiberal as that in any other brave new world or, perhaps, something akin to that depicted in <i>The Circle</i>. Also, insofar as many cities are afflicted by tremendous inequalities of wealth and power, one wonders how and whether the powerful residents would choose to surrender their power in the name of more equity and social justice. In this respect, it might, paradoxically, be necessary for states and nations to impose new rules on cities that would ensure that they function more equitably as part of any agreement to cede more power to them.
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One wonders why Hirschl does not call for enabling cities simply to secede from their nations or provinces and become, literally, independent city-states. This would certainly resolve the federalism problems he notes. On the other hand, as noted in Timothy Walter’s <i>Boxing Pandora</i>, promoting secession can lead to the atomization of new states. Were New York City to become more independent, would the other four boroughs not want to gain more independence from Manhattan? Were Montreal to become more independent, would it not break up into anglo- and francophone entities?
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I offer these queries not as gratuitous criticisms but as genuine responses to Hirschl’s provocative and important analysis. <i>City, State</i> raises important issues and poses equally important questions about contemporary constitutional architecture and the foundations on which it is based. It is a powerful, enjoyable work that will force readers to consider the impact of exogenous factors such as population growth (as well as things like advancements in science, technology, and so forth) on constitutionalism and the extent to which such factors require constitutional revision. The question remains: how to bring it about?
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REFERENCES:
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Walters, Timothy. 2020. <i>Boxing Pandora: Rethinking Borders, States, And Secession In A Democratic World</i>. New Haven: Yale University Press.
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Eggers, Dave. 2013. <i>The Circle</i>. New York: Alfred A. Knopff.
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© Copyright 2023 by author, Mark Rush.
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<br />Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-82681814743685965282023-08-22T12:00:00.002-04:002023-08-30T15:07:19.245-04:00SOCIAL MEDIA, FREEDOM OF SPEECH, AND THE FUTURE OF OUR DEMOCRACY<img src= https://images.booksense.com/images/097/621/9780197621097.jpg align=left style="margin:0 8px 8px" height=96>Vol. 33, No. 06 (August 2023) pp. 69-74.
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<br />SOCIAL MEDIA, FREEDOM OF SPEECH AND THE FUTURE OF OUR DEMOCRACY, Lee Bollinger and Geoffrey Stone (eds.). Oxford: Oxford University Press, 2022. pp. 404. Cloth $99.99. ISBN-13: 978-0197621080. Paper $24.95. ISBN-13: 978-0197621097.
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Reviewed by Cary Federman, Department of Justice Studies. Email: federmanc@montclair.edu.
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This is the fifth collaboration by Lee Bollinger, the president of Columbia University and a law professor, and Geoffrey Stone, a professor of law at the University of Chicago Law School. Including this volume, they have edited three books on speech, one on the press and national security, and co-authored a book on affirmative action. This one is the timeliest, as it concerns the freedom of speech, the internet, and democracy.
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The purpose of the collection is to explore the main issue confronting the freedom of speech today: “what to do about ‘bad’ speech on the internet?” (p. xv). According to the various contributors, “bad speech” includes: “abusive speech,” “extreme speech,” “genocidal speech,” “harmful speech,” “hate speech,” and “hateful speech.”
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The book is divided into four parts. Prior to Part One, Bollinger and Stone write an “Opening Statement.” Four lawyers from Debevoise and Plimpton follow with an essay on the regulation of harmful speech. Part One provides an overview of the problem of the internet and speech. Part Two addresses Section 230 of the Communications Decency Act, the cornerstone of the problem of the internet, speech, and democracy. Part Three looks at the problem of algorithms and content moderation. Lastly, Part Four addresses possible reforms. Prior to the editors’ conclusion is an essay by “the Commission,” a group convened by the editors and tasked with making “a set of specific recommendations about what we should and should not do” (p. xviii) regarding the internet, speech, and democracy. (The Commission members are: Katherine Adams, of Apple; Jelani Cobb, of the <i>New Yorker</i>, Martin Baron, formerly the Executive Editor of the <i>Washington Post</i>; Russ Feingold, the former Democratic Senator from Wisconsin and the current President of the American Constitution Society; Lee Bollinger; Christina Paxson, the president of Brown University; Hillary Clinton; and Geoffrey Stone.)
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Most of the contributors make the case for internet speech regulation. But what’s missing from this collection is a clear explanation of how and why internet law developed toward libertarianism, and what effect that has had on democracy. It is obvious that there is a new orthodoxy emerging regarding speech and democracy. The old orthodoxy comes from Oliver Wendell Holmes’s dissent in <i>Abrams v. U.S.</i> (1919). Holmes claimed that the marketplace of ideas must allow for all manner of speech, on the idea that the truth will win out eventually. In that spirit, the century that followed legalized pornography, obscenity, and seditious speech. It effectively decriminalized libel of public officials and figures. That century’s jurisprudence was indifferent (if not, at times, hostile) to the claims of local communities that did not want pornography or obscenity in their neighborhoods or schools, or to have a communist for a High School teacher. A half century into the free speech century, the Warren Court told us that a latitudinarian understanding of speech was beneficial for democracy, even if it prevented the deliberate sense of the community from restricting speech to preserve local democracy. Now, however, the contributors to this collection tell us that the “most powerful communications technology magnifies…harms exponentially beyond anything we have encountered before” (p. xv). But no essay in this collection explains how this came about, or why this seemingly new situation requires accommodating a hate speech exception into First Amendment law.
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Larry Kramer provides a basic overview on the need to rethink speech, as do the editors, but Kramer, like several contributors, looks to the European Union (EU) <a name='more'></a>and international human rights law to support greater regulation of speech. The EU, for example, requires that “video-sharing platforms” “prohibit users from uploading hate speech,” anything connected to terrorism, and “child sex abuse, or other content harmful for minors” (p. xxxix). There is, also, a non-binding code of conduct among the European Commission and various social media platforms that polices “hate speech.” The First Amendment, of course, has no hate speech exception.
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But this seems not to deter the contributors. As Jamal Greene writes in a perceptive essay on speech and human rights law, “[a]n unregulated public platform [in the US] might even violate various human rights norms by dint of its <i>lack</i> of regulation” (p. 169). Greene is willing to restrict hate speech, rape jokes, and ethnic slurs on a hypothetical government-run platform because it could come into conflict with international human rights law, even though the Supreme Court frowns upon viewpoint discrimination from government entities. Rejecting “viewpoint discrimination” as an “unhelpful” rule for content moderation, Green writes that “[f]ronting a public platform loaded with ethnic slurs, rape jokes, and swastikas would seem to sit in serious tension” (p. 174) with a responsibility to international human rights law.
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The resort to EU and human rights law to regulate the internet is interesting, but not compelling. Surely the Warren Court, which liberalized speech in the name of furthering democracy, bears some responsibility for the libertarian attitudes the contributors are criticizing. Yet the Warren Court makes no appearance in these pages. Also missing is viewpoint diversity. Four Democratic Senators, two past and two present, contribute to this collection, but there are no Republican Senators. There is also no confirmed libertarian among the contributors. The general tenor is toward regulation, if not censorship, or what Cass Sunstein calls “speech-protective approaches” (p. 61) to regulate misinformation and disinformation.
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Newton Minow, the former chairman of the Federal Communications Commission under President Kennedy, asks: “couldn’t there be a requirement that nobody can be on the internet if they use hate speech?” (p. 290). More troubling is his daughter Nell Minow’s response. She says that, although there is no agreed upon definition of hate speech, “extremist Christians are going to say it’s hate speech for people to make pro-LGBTIA comments” (p. 290). In other words, the problem with hate speech isn’t its undefined parameters. The problem is that non-approved groups will exploit hate speech for their own reasons. Both statements require more explanation than we are given.
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There is, moreover, a general sense among the contributors that capitalism and other vast structures have played an outsized role in creating our current problem, thereby denying agency to Supreme Court Justices, Congress, and perhaps the American people themselves. Throughout this volume, we are told that social media sites operate for profit, as if profit-seeking companies are an anomaly in the United States. Rather than stressing the connection between a free market and free speech, Jack Balkin writes that the free market provides “incentives to act irresponsibly and amplify false and harmful content” (p. 233). Thus, he wants to reform “informational capitalism,” and is concerned about “surveillance capitalism” – the phrase comes from Shoshana Zuboff, who argues that capitalism takes human experiences and reduces them to raw data, an idea as old as capitalism. Although not every essay blames adjectival capitalism and the “great asymmetries of power and knowledge” that exist “between the digital businesses that collect data from end users and the end users themselves” (p. 249), for the current state of democracy, the internet, and speech, a Foucauldian postmodernism, focused on panopticism, surveillance, and power and knowledge, pervades the volume.
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Balkin is the only essayist to address democracy and speech. He laments the fact that “a few large institutions effectively control what people see, hear, or read,” thus undermining the “health and vibrancy of the public sphere” (p. 241). He speaks, however, not of democracy as such, but of “cultural democracy” (p. 238), which he defines as creating “broad opportunities for cultural practices.” Although Balkin doesn’t explain and describe this in detail, he argues that cultural democracy should replace democracy as it has been practiced because there is a “new kind of digital public sphere that lacks the connective tissue of institutions and practices necessary to sustain the underlying values of freedom of speech” (p. 245).
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But this begs the question: where were these underlying values when the Warren Court was striking down state laws against pornography and obscenity, and banning prayer in schools? Balkin, moreover, doesn’t say why cultural democracy is superior to procedural democracy, or why we need adjectives to describe democracy and capitalism. His first solution, however, is not unwise, i.e., greater antitrust enforcement. But his second solution creates more problems than he addresses. He calls for the promotion of “public-regarding institutions governed by professional norms for curating information and producing knowledge” (p. 241).
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The lawyers at Debevoise & Plimpton in fact argue for a strengthened FCC or Federal Trade Commission, or for an entirely new agency that would fulfill this role. Balkin advocates a trade-off: social media companies that want immunity from lawsuits have to agree to be regulated “as information fiduciaries.” That is, these companies have to ensure “confidentiality, care, and loyalty to the people whose data they collect and use” (p. 249). He also wants social media companies to “allow government regulators to inspect their algorithms at regular intervals for purposes of enforcing competition law, privacy, and consumer protection obligations” (p. 253).
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Because social media sites are lightly regulated, they have strong incentives to collect personal data, promote hate speech, and allow for misinformation and disinformation. Consequently, “we’re drowning in lies,” Emily Bazelon states (p. 42). One could, of course, say we have always been drowning in lies. Anyone who has read the Federalist and Jeffersonian press during the Alien and Sedition Acts debate knows this. But now the stakes are higher, for some reason. “‘Misinformation costs lives,’ the World Health Organization and other groups said in September 2020 about what they saw as a crisis,” Bazelon writes. But the real crisis of speech and democracy came one year later. The events of January 6, 2021, clearly exacerbated the collective problem of speech, the internet, and democracy. But it also revealed that internet misinformation and disinformation are problems of scale; they are not, of themselves, novel. Unfortunately, no contributor considers the historical problem of “fake news.”
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Section 230 of the Communications Decency Act is the heart of the problem, and there are three essays that discuss this issue. Section 230 “shields internet companies from liability for speech on their platforms” (p. xvii). Mary Anne Franks takes a hard line against Section 230, for it “curtails the rights of the vulnerable in favor of the privileges of the powerful” (p. 67). She offers a model revision of Section 230, restricting a fair amount of what passes for protected speech and diminishing social media sites’ immunity, to allow for those injured by online speech “to have their day in court” (p. 79). Erwin and Alex Chemerinsky’s essay is the most protective of free speech in the volume. They note that the federal courts have not looked favorably upon modifications of Section 230. Consequently, the Chemerinskys’ call for prudence when considering changes to something as new as internet speech. Finally, Senator Sheldon Whitehouse does not believe that Congress – the deliberative body chosen by the founders to make law – should have anything to do with internet law. He wants to repeal Section 230 and let the “courts sort it out” (p. 104). Later, he reconsiders and comes up with ways that Congress – prohibited by the First Amendment from restricting speech – can encourage social media companies to take down disinformation. In particular, he wants “Congress to require a ‘notice-and-takedown’ system removing Section 230 protections when a company willfully refuses to remove unlawful content” (p. 115). He wants greater transparency regarding algorithms, and to hold social media companies liable for their “profit-making decisions” (p. 117) that Section 230 currently immunizes as free speech.
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Nathaniel Persily says that it is algorithms that “make ‘decisions’ about speakers and content quality” (p. 203). For that reason, Jack Balkin writes that social media sites should be treated differently than “broadband companies and telephone companies” because they are “curators who organize and moderate content” (p. 239). Mary Anne Franks argues that online speech is not uncensored. It is, rather, “filtered, arranged, promoted, altered, and labeled in accordance with corporate interests” (p. 66). To be sure, the algorithms are not spontaneous creatures. They are, Kate Starbird writes, “shaped by our actions” (p. 224), although she admits that “it’s hard to know how [algorithms] work.” For those perplexed by what algorithms do, Renée DiResta’s clearly informed essay on “algorithmic literacy” is recommended.
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The Commission’s proposal to reform internet law is the heart of the volume’s argument. The Commission is concerned about the “real-world consequences” of the “spread of false or misleading information” (p. 315). The Commission mentions that social media sites have not, on their own, restricted hate speech or speech that promotes “violence or self-harm, defamation, harassment, and invasion of privacy” (p. 315). Although the Commission acknowledges First Amendment problems with “hate speech,” it never defines it, and yet it seems to know hate speech when it sees it (a view shared by nearly all the contributors).
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<br />
Recognizing limits on regulation or censorship under First Amendment law, the Commission nevertheless recommends that courts render distinct the “use of algorithms or artificial intelligence to replicate and amplify speech…from the content of speech” (p. 316). They also recommend that Congress create an agency or give an already existing agency the power to “oversee issues relating to regulation of social media” (p. 325). And they want greater involvement by “civil society groups” (p. 317). The Commission does not fully explain this – they use the example of Major League Baseball moving the 2022 All-Star Game out of Atlanta because of Georgia’s voting rights law – but given the potential danger to the freedom of speech this creates, the Commission needed to say more about this. Finally, noting the global reach of the internet, and consistent with the theme of the volume to look to EU and human rights law, they argue that “US policymakers and regulators should work with allies and international bodies to ensure that any reforms have as much global reach as possible” (p. 318).
<br />
<br />
The essays in this volume are all well-written and clearly argued. That there is a bias in favor of regulation, in some cases bordering on censorship, from both foreign and domestic sources, probably has something to do with the slant one finds in elite law schools and other elite institutions these days. The volume, however, makes an important contribution to the literature on free speech, particularly because the next one hundred years will not mirror the previous century’s libertarianism. For this reason, this volume belongs in anyone’s library interested in the freedom of speech.
<br />
<br />
CASES:
<br />
<br />
<i>Abrams v. U.S.</i>, 250 U.S. 616 (1919)
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<br />
<hr />
© Copyright 2023 by author, Cary Federman.
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<br />
Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-28226406499213339482023-07-24T17:24:00.000-04:002023-07-25T11:50:58.614-04:00THEY DON’T WANT HER THERE: FIGHTING SEXUAL AND RACIAL HARASSMENT IN THE AMERICAN UNIVERSITY<img src= https://books.google.com/books/content?id=CdlYEAAAQBAJ&printsec=frontcover&img=1&zoom=1 align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 05 (June 2023) pp. 55-68 <br />
<br />
THEY DON’T WANT HER THERE: FIGHTING SEXUAL AND RACIAL HARASSMENT IN THE AMERICAN UNIVERSITY, by Carolyn Chalmers. Iowa City: University of Iowa Press, 2022. pp.250. Paper $23.00. ISBN-13: 9781609388195.
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<br />
Reviewed by Sally J. Kenney. Department of Political Science. Tulane University. Email: skenney@tulane.edu.<br />
<br />
There was a professor of anatomy <br />
Whose colleagues all thought had a lobotomy <br />
Apartments he had to rent <br />
And his semen was all spent <br />
On a colleague who did his microtomy <br />
<br />
Someone scrawled that limerick over the urinal in the men’s bathroom in the University of Iowa Medical School’s Anatomy Department. After years of keeping her head down, suppressing her outrage and humiliation, and getting on with a successful career in science, Professor Jean Jew had had enough. She had exhausted internal complaint procedures and, knowing full well the costs, the low probability of justice, and the high probability of retaliation, she hired a lawyer and filed two lawsuits. Her lawyer Carolyn Chalmers’s riveting account of events goes far beyond a #MeToo description of wrongdoing, and reads more like a legal thriller. Chalmers’s description of the years of struggle to get the University and State of Iowa to act against Professor Jew’s tormentors and remedy its hostile work environment not only demonstrates that intellectual and professional elites alongside movie producers, mine workers, and fire fighters sexually harass, but also reveals sexual harassment to be a systemic problem of institutionalized sex and race discrimination not just the rogue behaviors of a few individuals. mobilization and law as a tool of social change by demonstrating what works when and how by offering those who seek to eradicate sexual harassment and end sex and race discrimination lessons and cautionary tales about the flukiness and precariousness of seeking justice through litigation.
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<br />
The literature contains many fine examples of plaintiffs’ experiences, notably, Lily Ledbetter’s memoir GRACE AND GRIT (Ledbetter and Isom 2012), and excellent examinations of litigation as a strategy for social change, such as Rachel Devlin’s A GIRL STANDS AT THE DOOR (2018; Kenney 1996). In THEY DON’T WANT HER THERE: FIGHTING SEXUAL AND RACIAL HARASSMENT IN THE AMERICAN UNIVERSITY, Jew’s lawyer narrates how she won both a Title VII case against the University of Iowa, as well as a defamation case against Jew’s lead harasser. Chalmers’s first-person account gives us a rare glimpse into the mind of the lawyer who has to persuade her law firm to invest in a sex discrimination case that would have to expand the doctrine, accept the risk of a contingency fee case, endure the sloppy kiss of an entitled businessman member of the Iowa Board of Regents during settlement negotiations, navigate the legal complexities of keeping multiple complaints going simultaneously in a different state, and boost the spirits and confidence of her client, while juggling marriage and parenthood.
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<br />
This book has significance far beyond its contributions to law and politics; it is an exposé of how large institutions, like universities, perpetuate white male privilege. It reveals how wildly irrational and vindictive they are in exposing themselves to liability, rather than working to solve problems, how indifferent they are to the findings of internal proceedings, and how unwilling they are to protect and seek to retain high performing employees. Chalmers’s account complements law professor Martha Chamallas’s excellent doctrinal analysis (1994) to illustrate, in copious detail, the lengths the university and state would go to annihilate one of their most productive faculty members. As an observer, an assistant professor in political science and women’s studies, the university’s willingness to squander human capital and savage one of its own shocked me to my core. The university was no different from the judiciary (Lithwick 2022) the press (Carmon 2019) or sports like gymnastics (Denhollander 2019) and soccer (Draper 2022, Streeter 2022). We have long known that universities have colluded to protect college football players facing charges of rape (Krakauer 2015, Krouse 2022) but Chalmers books strikes at the university’s core, scientific research and medical education.
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The first women and non-white scholars in science might have expected the workplace of the life of the mind to be different from working-class bastions of toxic masculinity, the oil rig (Ely and Myerson 2006), the firehouse (Chetkovich 1997), the tire plant (Ledbetter and Isom 2012), or the mine (Bingham and Gansler 2002). My parents revered education and during my tenure process, my mother struggled<a name='more'></a> to let go of the deeply held conviction that people who were smarter were necessarily more ethical. It took many years after Congress forbade sex discrimination for courts to recognize sexual harassment under Title VII. Courts labeled early cases as “sex-plus.” Employers were not discriminating against women on the basis of sex, but because they were attractive and men in the workplace wanted to date them. The women of Eveleth mines knew, however, that the men who ejaculated in their lockers were not trying to win their hearts, but rather drive them from the workplace. Chalmers’s title says it all.
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Once courts recognized sexual harassment as a form of sex discrimination in MERITOR V. VINSON judges would engage in what law professor Vicki Schultz labeled disaggregation (Schultz 1998), assessing each incident and concluding that individual episodes could not form a pattern that summed to a hostile environment. They shrugged their shoulders, as Justice Scalia did in ONCALE SUNDOWNER OFFSHORE SERVICES, INC. and President Trump did after the release of the ACCESS HOLLYWOOD tape, calling it just “locker room talk” as if that rendered such “boys will be boys” behavior harmless. Rather than protecting a strong grant getter, an educator medical students routinely voted teacher-of-the-year, a coveted recruit for Iowa, and one of its only Asian-American women faculty, the university would ultimately contemplate defending sexually harassing speech on appeal as protected under the rubric of academic freedom.
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<br />
One need not participate in many faculty decisions, nor have a finely tuned antenna for discrimination to recognize a pattern of rampant double standards. When person A publishes with others, it is a sign of her stature; when person B does, it is evidence that she is coasting on the work of others and cannot do independent work. Candidate A is too inexperienced to handle the job; Candidate B is a star we must nab now before she has dazzled higher-rated and more affluent departments. A book must be out, not just in press or under contract, and have reviews before the voting for tenure or promotion to full of Professor A; Professor B gets tenure based on a likely contract. Professor A who finally publishes a book after many unproductive years is promoted to full professor, despite being under investigation as a serial sexual harasser; Professor B has several books, but are they impactful enough to show evidence of national reputation or compensate for a fallow period (fallow in the sense of academic production, she may have given birth to several children during that time)? In one case, placement is everything; in another, the impact factor is what matters. And so on.
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Often, but not always, these mental gymnastics reflect gender double standards whereby mediocre men advance and women or minority men must be twice as good to do so. So, it will come as no surprise that when M.D. Ph.D. Jean Jew arrived at the University of Iowa, as her mentor took up the position as chair of the Anatomy Department, that colleagues in her male-dominated department, college, and field read her achievements through the lenses of race (she was the daughter of Chinese immigrants) and gender (she was an attractive young single woman). Social scientists such as Susan Fiske have well documented such stereotyping and even courts have recognized it since PRICE WATERHOUSE V. HOPKINS (Chamallas 1990).
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<br />
A second move to render harm invisible, or rather non-actionable, was to find what the doctrine labels “a legitimate non-discriminatory reason” i.e., an explanation for events that does not have race and gender as causes as if doing so can erase these explanations as contributing factors. (For an excellent summary of the law, see Beiner, 2021). Focusing on these joint causal factors is a form of gas lighting: denying the intersectional relevance of race and gender in highly male-dominated settings (Kanter 1977; Manne 2018). Longstanding members of the Anatomy Department resented their new chair, and therefore resented Professor Jew as another outsider. But, as I have argued extensively elsewhere, in examining the decision of California voters not to retain the first woman chief justice of the California Supreme Court, Rose Bird (Kenney 2013), finding multiple contributory factors does not eliminate the significance of discriminatory ones. Hillary Clinton could have made some campaigning errors AND been the object of widespread misogyny; causal explanations do not need to be all or nothing. In my own case of tenure in political science at the University of Iowa, for example, senior administrators would say, “it’s basically a balance of power issue,” thereby erasing the fact that the balance of power contest was being fought over the first woman to win tenure through the ranks and the first joint appointment with women’s studies. The former dean of liberal arts, himself a political scientist, said to me after his successor granted me tenure (a slim majority had voted in favor, but the chair recommended against) “you are proof the system works.” I replied, saying that’s like asking an innocent man strapped to the electric chair winning an eleventh-hour reprieve to conclude that we have a fair criminal justice system.
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<br />
I attended the defamation trial Jean Jew brought against her tormentor, Tomanek, as a young assistant professor of Political Science and Women’s Studies at the University of Iowa (Kenney and Sterett 1999). When I moved to the University of Minnesota’s Hubert H. Humphrey Institute of Public Affairs, I became acquainted with her lawyer, Carolyn Chalmers as part of a community of feminist legal scholars. As the director of the Newcomb Institute at Tulane University, I came to know Professor Jew better, as she was an alumna of Newcomb College and Tulane Medical School.
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<br />
Chalmers is not a political science colleague who will rely on my positive review in this prestigious outlet to get a pay raise or promotion, but a retired lawyer. The proceeds from the book (minimal as they are likely to be) are donated. I commend to you this book as a public law scholar and expert in sex discrimination and social movements because I urgently believe it contributes to our understanding of law and politics, but also because I think it so effectively captures the problem of sexual harassment in the academy that has plagued our discipline. The book is, and I use this word carefully and deliberately, triggering. I had thought I knew nearly everything about the case but, nevertheless, I had to put the book down repeatedly and read it over several days. The ultimate picture it paints is far worse than we had previously let ourselves believe. Another reviewer, former clinical law professor and associate law dean Lois Cox, also a highly knowledgeable and informed reviewer, had the same reaction (2022). I was saddened to realize that despite having attended the defamation trial, lived through it, and read Chamallas’s article, I was overwhelmed by how much worse it was than I had realized. I wish I had been a better ally and colleague to Jew.
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<br />
The ubiquitous nature of sexual harassment in academia has been well documented by the National Academies of Science (2018), Cantalupo and Kidder (2018), Gray-Rosendale (2020), Vettese (2019), recognized by the National Institute of Health (Heidt 2021), and the National Science Foundation who has designated political science as especially problematic (Brown 2019; Brown 2020; Kenney 1995). Each of the four political science departments I worked in over the last 35 years (the University of Illinois, the University of Iowa, the University of Minnesota, and Tulane University) has had a serial sexual harasser who had been adjudicated and found to be one that everyone knew about. The second provost I served under at Tulane and I disagreed vociferously about his decision to promote a serial sexual harasser in the political science department. As in Jew’s case, despite an internal faculty panel finding of responsibility, only after the victims hired a lawyer who put pressure on the university did the process move forward. In addition to the five women who complained, many more victims exist, and he continues to perpetrate harm (Lay 2019). Ultimately, the university issued some sanctions. Possibly a modest pay cut. They moved his office to another building. As is often the case, members of the department do not know what those conditions are, nor can we ensure he honors them because the sanctions are secret—a common institutional policy that desperately needs changing (Jaschik 2022).
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For five years, I chaired a faculty sexual harassment committee that made a few modest incremental policy changes, such as passing a university senate resolution that sexual harassment constitutes gross misconduct for purposes of the faculty handbook, creating a single university review committee for all schools, and enacting a policy that faculty cannot have sexual relationships with undergraduates. The provost promised that in the future, he would put promotions on hold if a university grievance process against a faculty member were underway (with back pay if they are found not responsible). Unfortunately, the committee did not establish that serial sexual misconduct can be grounds for the denial of promotion. (The previous woman dean of liberal arts and others argued forcefully that the two things had nothing to do with each other). In addition, the university is doing some background checks at previous institutions, or at least, getting permission from applicants to do so. Ongoing cases of sexual misconduct may be aborted if the person under investigation chooses to resign, thereby clearing their record. When Tulane’s climate survey showed widespread sexual harassment of undergraduates, and the alarmingly high rates of sexual assault on campus (2018), the provost instituted mandatory education despite strong scientific evidence that, in the absence of confidence in the administration and a history of holding abusers accountable, such education makes things worse (Feldblum and Lepnic 2016; McGregor 2017). Those who do not believe sexual harassment is a serious problem are outraged at having to sit through mandatory education; others recognize the action as a cynical substitute for acting against predators.
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To paraphrase Justice Blackmun, I will no longer tinker with the internal machinery of holding perpetrators accountable institutional betrayal after institutional betrayal (Ahmed 2021, Smith and Freyd 2013, 2014). These internal procedures are worse than useless. Tulane’s own data shows that only about 1% of cases end up with ANY sanctions. Research by legal scholar Debbie Brake shows that sexual harassment plaintiffs have the lowest success rate of anyone in federal court worse than incarcerated persons (2019).
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Where are the bystanders and what Kaufman calls upstanders, the Swedes, for example, who stumbled upon Brock Turner sexually assaulting Chanel Miller while she was unconscious and intervened (2019; Monroe 2019, 144-5)? Faculty members, postdocs, and staff saw the limerick and could have erased it. They could have reined in their colleagues by declaring and enforcing norms. Lithwick wonders why the other judges on the Ninth Circuit as well as former clerks in close relationship with Kozinski, such as Justice Kavanaugh, said or did nothing (2022, 182). No one who watched Anita Hill or Christine Blasey-Ford or survivors of sexual violence such Rachel Denhollander (2019) or Andrea Constand (2021) has any illusions about the costs or the prospect of justice. Lithwick labels the keeping of these open secrets a gargantuan collective action problem (see also Lise Olsen, CODE OF SILENCE).
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<br />
The one bright spot on the horizon is that professional associations are starting to sanction sexual misconduct. For example, in political science, the Midwest Political Science Association ultimately prevented serial sexual harasser William Jacoby from assuming the powerful position as editor of the AMERICAN JOURNAL OF POLITICAL SCIENCE (Hollingsworth, 2018; Sulfaro and Gill, 2019). Geologists, with lots of assaults reported during field work, are leading the way (Geological Society of America; Mervis 2022). The highest profile case in Political Science, so far, has been Jorge Dominguez at Harvard, who continued to be promoted until he was Dean of International Studies despite being found responsible for sexual harassment (Bartlett and Gluckman 2018). An internal departmental analysis demonstrated that a particular chair could make him stop, but as soon as those chairs stepped down, he started harassing again. Harvard provided no deterrent. The National Science Foundation has funded a political science Advance Grant, and another generation will try its hand at prevention and holding perpetrators accountable (Centennial Center 2019). Meanwhile, students and faculty year after year are lambs to the slaughter.
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<br />
Two powerful documentaries, PICTURE A SCIENTIST and THIRTY-SEVEN WORDS, eloquently capture the problem and its corrosive effects. The former explores three harrowing cases like Jew’s. The latter has a rare and compelling interview with the woman who sued then Yale political scientist Raymond (Bud) Duvall. That case established that sexual harassment did constitute a violation of Title IX, although the judge did not find Duvall responsible. Except for having my bottom pinched by the chair of my department at the first departmental Christmas party as an endowed chair, aged 50, I have not personally experienced that much sexual harassment during 35 years as a political scientist. But, the broader issue of THEY DON’T WANT HER HERE does capture my experience. No matter what you do, or who you are, you will never belong and be a valued member of the group, no matter your stature or accomplishments. The more you distinguish yourself, the more they hate you.
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<br />
The most powerful lesson of the book is not so much that the men of the anatomy department would stop at nothing to drive Jew out and that, as with so many cases, sexual harassment is a cruel mechanism of sexism, racism, and exclusion, but the story of the intransigence of the university administration and the state attorney general’s office whose reckless and irrational responses ultimately appear no different from Jew’s colleagues. Chalmers then adds the most soul crushing revelation of all: the institutional and structural headwinds Jew encounters are led by middle-aged women who do the harassers’ and institution’s dirty work for them. The two senior administrators blunted Jew’s ability to garner early support by sharing with key opinion leaders (like me) that Jew had been observed having sex with Williams on a table in the Health Science Library. That telephone tree of a whispered smear campaign did not include the information that came out in both trials, that a young woman on Tomanek’s staff had claimed to see Williams having sex on the sofa in his office. How did she know it was Jew? She did not see Jew’s face, but knew it to be her by the color of her legs “consistent with Jew’s” and “darker than Caucasian legs” (2022, 144). Contrary to racist stereotypes, however, Chalmers disarmed the smoking gun of “yellow legs” at the defamation trial by showing the jury her and Jew’s naked legs that were indistinguishable in color. Criminal behavioral analyst formerly of New Scotland Yard, Laura Richards, on her REAL CRIME PODCAST about the documentary about Michael Jackson LEAVING NEVERLAND, describes how women enable men’s predatory behavior, whether it be that of Bill Cosby, Jeffrey Epstein, R. Kelly, or Keith Raniere. As I have argued elsewhere (Kenney 1996, 2013), feminists need a nuanced understanding of the role of women in institutions; women judges, prosecutors, senior administrators, or presidents are no simple panacea for institutional sexism and racism.
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Whether it is President Bill Clinton, who enlists women cabinet members Donna Shalala and Madeleine Albright to discredit his victim, or Diane Keaton, who defends Woody Allen, or directors of gender equity institutes, sexual harassers often cultivate feminists who will provide cover. Professor of English Literature Donna Potts has coined the term “feminist beard” for this phenomenon, one that nearly all of us will instantly recognize and which allows predators to hide in plain sight and continue hurting people. Hirschman, in SISTERS IN LAW, powerfully argues that feminists must stop defending sexual harassers who do good things, like funding feminist candidates or defending abortion rights (2015). (Amy Brittain’s brilliant podcast CANARY reveals a progressive judge to be a sexual abuser who issued lenient and non-custodial sentences to other perpetrators [2022]).
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Also infuriating is the university’s insinuation during the trial that Jew, like a battered woman, should have left her mentor and co-investigator, her home, and her lab to escape the harassment, as if a magical place existed in academia free of gender and race discrimination. Chalmers contrasts Jew’s choices to those of Hope Jahren, author of LAB GIRL (2016):
<blockquote>Women scientists facing sex discrimination may be better served by leaving the offending institution. The offending university, and the women in it, may be better served when one of their own stays and fights (Chalmers 2022, 101).</blockquote>
How many suffer because we are determined not to let them drive us out?<br />
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Chalmers’ account is a vivid illustration of the phenomenon Sociologist Dana Britton documented after interviewing successful senior women scientists (2017), many of whom were the first and only women members of their departments (as was Jean Jew). Most of her subjects rejected the metaphor of the “chilly climate”—the idea that discrimination shapes their environment in multiple gendered interactions or microaggressions—and sought to downplay their gender identity, distancing themselves from associating with feminist collective action. Rather than seeing gender as a pervasive force that shapes interactions, they saw it as an unwelcome intrusion—a punctuated equilibrium. The women moved through three career stages. When they encountered routine sexism, they brushed it aside as the bad behavior of an atypical individual—a nuisance. My sister, a molecular biologist, reported attending her first academic conferences in the 1980s where presenters would regularly insert a PLAYBOY or PENTHOUSE centerfold slide. The men in the audience would laugh, while the presenter feigned sheepishness, asking, “how did that slide get in there?” Women eager to cut the crap and do science would ignore it, striving for a gender-neutral ideal of science where they would contribute according to their gifts, rather than be shunned, discounted, excluded, devalued, and prevented from securing funding for their work or publication of their results. In the harrowing documentary, PICTURE A SCIENTIST, MIT Professor of Biology Nancy Thompkins recounts her excitement as a postdoc anticipating meeting Professor Crick, who, along with Watson, was credited with discovering DNA, only to have him come up behind her at her lab desk and grab both of her breasts (Zernike 2023). Phase one, Britton notes, is for women to say, “what a Neanderthal,” and get on with their work. Complaining only made matters worse and got them labeled. Better to distance themselves from those feminists always making a fuss and just get on with the work of science. (Garmus’s 2020 novel LESSONS IN CHEMISTRY beautifully captures these dynamics.)<br />
<br />
In phase two, Britton argues, these women are more willing to describe the significant structural factors at work in their organizations. For example, how expectations about emotional labor and femininity lead universities to burden women with disproportionate service. In phase three, however, when women ascend to leadership positions and face intransigence to their deployment of positional power, many rethink the relevance of gender. Women then experience a punctuated equilibrium that is not so easy to dismiss, but instead shatters their illusion that the academy will ultimately recognize and reward hard work and merit. They describe painful interactions that reveal gender at work, such as a dean’s refusal to match the pay of a more junior man, saying “it would turn my stomach to see that woman making that much money” (Britton 2017, 67). The limerick above the urinal proved to be the punctuated equilibrium for Professor Jew.<br />
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As Angela Ondatche-Willig does in her alternative rendering of MERITOR for the U.S. FEMINIST JUDGMENTS PROJECT (2016), Chalmers recognizes the relevance of not just gender but race, and the particularity of tropes of Asian women, although her treatment of these issues is rather superficial. Dayle Chung’s undergraduate history thesis on the case invites us to look more carefully at race (2021).<br />
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In the documentary about women and film entitled THIS CHANGES EVERYTHING, women directors recount how a feature film directed by a woman winning an award or women lead characters like Thelma and Louise, being box office successes, would lead commentators to say, once again, “this changes everything.” But, the work would then continue to go to the men, and scripts with strong women would not be made no matter how often women directors, producers, writers, actors, proved their mettle.<br />
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The University of Iowa created a Jean Jew Justice award to honor Jew. I remember on one occasion, the provost proclaiming that what happened to Jew could never happen again at the University of Iowa while Martha Chamallas, then chair of Women’s Studies, thought to herself “liar liar pants on fire.” Chalmers’s excellent, harrowing, and insightful account does not conclude that “these changes everything,” but instead ends with a recognition of ongoing complaints of sex discrimination in pay and sexual harassment at both the Universities of Iowa and Minnesota (2022, 194). But for Carolyn Chalmers and Jean Jew, nevertheless, they persisted, and we have much to learn from their story.<br />
<br />
CASES:<br />
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MERITOR V. VINSON, 477 U.S. 57 (1986).<br />
<br />
ONCALE V. SUNDOWNER OFFSHORE SERVICES, INC., 52 U.S. 75 (1998).<br />
<br />
PRICE WATERHOUSE V. HOPKINS, 490 U.S. 228 (1989).<br />
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REFERENCES:<br />
<br />
Ahmed, Sarah. 2021. COMPLAINT! Durham: Duke University Press.<br />
<br />
Bartlett, Tom, and Nell Gluckman. 2018. “She Left Harvard. He Got to Stay. Did the University’s Handling of One Professor’s Sexual-Harassment Complaint Keep Other Women from Coming Forward for Decades?” CHRONICLE OF HIGHER EDUCATION. https://www.chronicle.com/article/she-left-harvard-he-got-to-stay/?cid=trend_right&cid2=gen_login_refresh<br />
<br />
Beiner, Theresa (Terri). 2021. “Sexual Harassment: The Promise & Limits of a Feminist Cause of Action.” THE OXFORD HANDBOOK OF FEMINISM AND LAW IN THE UNITED STATES.<br />
<br />
Bingham, Clara, and Laura Leedy Gansler. 2002. CLASS ACTION: THE STORY OF LOIS JENSON AND THE LANDMARK CASE THAT CHANGED SEXUAL HARASSMENT LAW. 1st ed. New York: Doubleday. <br />
<br />
Brake, Deborah L. 2019. “Coworker Retaliation in the #MeToo Era.” UNIVERSITY OF BALTIMORE LAW REVIEW 49(1): 1–58.<br />
<br />
Brittain, Amy. CANARY. https://podcasts.apple.com/us/podcast/canary-the-washington-post-investigates/id1532219705<br />
<br />
Britton, Dana M. 2017. “Beyond the Chilly Climate: The Salience of Gender in Women’s Academic Careers.” GENDER & SOCIETY 31:16.<br />
<br />
Brown, Nadia. 2019. “How the #MeTooPoliSci Collective Is Making a Difference in Political Science.” WASHINGTON POST. August, 30. https://www.washingtonpost.com/politics/2019/08/30/how-metoopolisci-collective-is-making-difference-political-science<br />
<br />
Brown, Nadia E. 2020. “Me Too Political Science: An Introduction.” JOURNAL OF WOMEN, POLITICS & POLICY 40(1): 1–6. <br />
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Cantalupo, Nancy Chi, and William C. Kidder. 2018. “A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty.” UTAH LAW REVIEW 2018(3): 671–786.<br />
<br />
Carmon, Irin. 2019. “What was the WASHINGTON POST Afraid of? INTELLIGENCER. April 1. <br />
<br />
Grigg, Amanda. 2019. “Four Political Scientists Awarded $1 Million by National Science Foundation to Address Sexual Harassment in the Discipline.” Centennial Center for Political Science and Public Affairs [blog]. August, 23. https://connect.apsanet.org/centennialcenter/2019/08/23/metoopolisci/<br />
<br />
Chamallas, Martha. 1990. “Listening to Dr. Fiske: The Easy Case of PRICE WATERHOUSE V. HOPKINS.” VERMONT LAW REVIEW 15(1): 89–124.<br />
<br />
———. 1994. “Jean Jew’s Case: Resisting Sexual Harassment in the Academy.” YALE JOURNAL OF LAW AND FEMINISM 6(1): 71–90.<br />
<br />
Chetkovich, Carol. 1997. REAL HEAT: GENDER AND RACE IN THE URBAN FIRE SERVICE. New Brunswick, N.J: Rutgers University Press.<br />
<br />
Chung, Dayle. 2021a. “JEW V. UNIVERSITY OF IOWA: Confronting Racialized Sexual Harassment in the Courts and the Academy, 1979-1990.” Yale University.<br />
<br />
Cox, Lois. 2022. “Prairie Dog’s Summer Reading List.” THE PRAIRIE PROGRESSIVE: 7.<br />
<br />
Denhollander, Rachael. 2019. WHAT IS A GIRL WORTH? MY STORY BREAKING THE SILENCE AND EXPOSING THE TRUTH ABOUT LARRY NASSAR AND USA GYMNASTICS. Carol Stream, Illinois: Tyndale. <br />
<br />
Devlin, Rachel. 2018. A GIRL STANDS AT THE DOOR: THE GENERATION OF YOUNG WOMEN WHO DESEGREGATED AMERICA’S SCHOOLS. New York: Basic Books.<br />
<br />
Draper, Kevin. 2022. “Report details ‘systematic abuse’ of players in women’s soccer.” NEW YORK TIMES. October, 3. https://www.nytimes.com/2022/10/03/sports/soccer/us-soccer-abuse-nwsl.html<br />
<br />
Ely, Robin J., and Debra E. Meyerson. 2006. “Unmasking Manly Men: The Organizational Reconstruction of Men’s Identity.” In ACADEMY OF MANAGEMENT ANNUAL MEETING PROCEEDINGS, Academy of Management, J1–6. https://search.ebscohost.com/login.aspx?direct=true&AuthType=ip,sso&db=bth&AN=27161322&site=ehost-live&scope=site&custid=s897882<br />
<br />
Feldblum Chai R. and Victoria A. Lipnic. 2016. SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE. U.S. Equal Employment Opportunities Commission. https://www.eeoc.gov/select-task-force-study-harassment-workplace.<br />
<br />
Garmus, Bonnie. 2022. LESSONS IN CHEMISTRY. New York: Doubleday.<br />
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Geological Society of America. “Removing Barriers to Career Progression for Women in the Geosciences.” https://www.geosociety.org/GSA/Science_Policy/Position_Statements/Current_Statements/gsa/positions/position26.aspx<br />
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Gray-Rosendale, Laura, and editor. 2020. ME TOO, FEMINIST THEORY, AND SURVIVING SEXUAL VIOLENCE IN THE ACADEMY. Lanham: Lexington Books.<br />
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Heidt, Amanda. 2021b. “Sexual Harassment Complaints in Academia Are Up Since 2018.” THE SCIENTIST.<br />
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Hirshman, Linda R. 2015. HOW SANDRA DAY O’CONNOR AND RUTH BADER GINSBURG WENT TO THE SUPREME COURT AND CHANGED THE WORLD. New York, NY: Harper.<br />
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Hollingsworth, Karyn S. 2018. “Political Scientist Empowers Others with Her #MeToo Moment Rebecca Gill’s Experience Is Informing Gender Inequality Research and Inspiring Other Women to Share Their Stories.”University of Nevada, Las Vegas [blog], October 23. https://www.unlv.edu/news/article/political-scientist-empowers-others-her-metoo-moment<br />
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Jahren, Hope. 2016. LAB GIRL. New York: Knopf.<br />
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Jaschik, Scott. 2022. “Cal State Kept Harassment Findings Against 2 Professors Secret,” INSIDE HIGHER EDUCATION [blog]. July, 28. https://www.insidehighered.com/quicktakes/2022/07/28/cal-state-kept-harassment-findings-against-2-professors-secret#<br />
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Kanter, Rosabeth Moss. 1977. MEN AND WOMEN OF THE CORPORATION. New York: Basic Books.<br />
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Kaufman, Zachary D. 2019. “Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Crimes,” SOUTHERN CALIFORNIA LAW REVIEW. 92(6): 1317-1406. https://southerncalifornialawreview.com/2019/09/01/protectors-of-predators-or-prey-bystanders-and-upstanders-amid-sexual-crimes-article-by-zachary-d-kaufman/<br />
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Kenney, Sally J. 1995. “Women, Feminism, Gender, and Law in Political Science: Ruminations of a Feminist Academic.” WOMEN & POLITICS 15(3): 43-67.<br />
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———. 1996. “New Research on Gendered Political Institutions.” POLITICAL RESEARCH QUARTERLY 49(2): 445-466.<br />
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Kenney, Sally J and Susan Sterett. 1999. “Tenure in a Chilly Climate.” P/S: POLITICAL SCIENCE AND POLITICS 32(1): 91–99.<br />
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Kenney, Sally Jane. 2013. GENDER AND JUSTICE: WHY WOMEN IN THE JUDICIARY REALLY MATTER. New York: Routledge. <br />
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Krakauer, Jon. 2015. MISSOULA: RAPE AND JUSTICE IN A COLLEGE TOWN. New York: Doubleday.<br />
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Krouse, Erika. 2022. TELL ME EVERYTHING: THE STORY OF A PRIVATE INVESTIGATION. New York: Flatiron.<br />
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Lay, J. Celeste. 2019. “Policy Learning and Transformational Change: University Policies on Sexual Harassment.” JOURNAL OF WOMEN, POLITICS & POLICY 40(1): 156–65.<br />
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Ledbetter, Lilly M., and Lanier Scott Isom. 2012. GRACE AND GRIT: MY FIGHT FOR EQUAL PAY AND FAIRNESS AT GOODYEAR AND BEYOND. New York: Crown. <br />
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Lithwick, Dahlia. 2022. LADY JUSTICE: WOMEN, THE LAW, AND THE BATTLE TO SAVE AMERICA. New York: Penguin.<br />
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Manne, Kate. 2018. DOWN GIRL: THE LOGIC OF MISOGYNY. New York, NY: Oxford University Press. <br />
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McGregor, Jena. 2017. “Why Sexual Harassment Training doesn’t stop sexual harassment.” THE WASHINGTON POST. https://www.washingtonpost.com/news/on-leadership/wp/2017/11/17/why-sexual-harassment-training-doesnt-stop-harassment/<br />
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Mervis, Jeffrey. 2022. “Sexual Harassment Ignored by U.S. Antarctic Research Program, Employees Say Ice Allies Group Has Pushed for Reforms despite Fear of Retaliation.” SCIENCE 377(1612): 1246-1247.<br />
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Monroe, Kristen Renwick. 2019. “Ending Sexual Harassment: Protecting the Progress of #MeToo.” JOURNAL OF WOMEN, POLITICS & POLICY. 40(1): 131-147.<br />
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National Academies of Science, Engineering, and Medicine. 2018. SEXUAL HARASSMENT OF WOMEN: CLIMATE, CULTURE, AND CONSEQUENCES IN ACADEMIC SCIENCES, ENGINEERING, AND MEDICINE. Washington, D.C. https://nap.nationalacademies.org/read/24994/chapter/1#ii<br />
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Olsen, Lise. 2021. CODE OF SILENCE: INSIDE THE CASE THAT LED TO THE FIRST FEDERAL JUDGE TO BE IMPEACHED FOR SEXUAL MISCONDUCT. Boston, Beacon.<br />
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Ondatche-Willig, Angela. 2016. “Rewrite of MERITOR V. VINSON, 477 U.S. 57 (1986).” In FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT, eds. Kathryn M. Stanchi and Linda L. Berger, and Bridget A. Crawford). New York, NY: Cambridge University Press.<br />
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———. 2014. “Institutional Betrayal.” AMERICAN PSYCHOLOGIST 69(6): 575–87.<br />
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Streeter, Kurt. 2022. “Soccer let’s women down whether they play or not.” NEW YORK TIMES. https://www.nytimes.com/2022/10/04/sports/soccer/soccer-abuse-power.html.<br />
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Sulfaro, Valerie A. and Rebecca Gill. 2019. “Title IX: Help or Hindrance?” JOURNAL OF WOMEN, POLITICS, & POLICY. (40)1: 204-227.<br />
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Vettese, Troy. 2019. “Sexism in the Academy: Women’s narrowing path to tenure,” HEAD CASE, 34. https://www.nplusonemag.com/issue-34/essays/sexism-in-the-academy/.<br />
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WAVE OF CHANGE: REPORT OF TULANE CLIMATE SURVEY. 2018. https://tulane.edu/sites/tulane/files/WaveofChangeExecutiveReportActionPlan.pdf<br />
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“Why Sexual Harassment Training Doesn’t Stop Harassment.” WASHINGTON POST. https://www.washingtonpost.com/news/on-leadership/wp/2017/11/17/why-sexual-harassment-training-doesnt-stop-harassment<br />
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Zernike, Kate. 2023. THE EXCEPTIONS: NANCY HOPKINS, MIT, AND THE FIGHT FOR WOMEN IN SCIENCE. New York: Scribner.<br />
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© Copyright 2023 by author, Sally J. Kenney.
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-83658829849519948862023-07-24T12:44:00.006-04:002023-07-25T12:13:36.395-04:00AMERICAN PRESIDENTS, DEPORTATIONS, AND HUMAN RIGHTS VIOLATIONS: FROM CARTER TO TRUMP<img src= https://assets.cambridge.org/97811084/72289/cover/9781108472289.jpg align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 05 (June 2023) pp. 69-72 <br />
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AMERICAN PRESIDENTS, DEPORTATIONS, AND HUMAN RIGHTS VIOLATIONS: FROM CARTER TO TRUMP, by
Bill Ong Hing. Cambridge: Cambridge University Press, 2018. pp364. Paper $34.99. ISBN 9781108459211.
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<br />
Reviewed by Ming H. Chen and Miquela Kallenberger.
College of the Law. University of California, San Francisco. Emails: chenming@uclawsf.edu and mkallenberger@uclawsf.edu.<br />
<br />
AMERICAN PRESIDENTS, DEPORTATIONS, AND HUMAN RIGHTS VIOLATIONS: FROM CARTER TO TRUMP demonstrates Bill Ong Hing’s sagacious experience as an immigration lawyer and professor. The book offers a moral urgency about the human rights violations embedded in U.S. immigration policies over the last 50 years. It will resonate within and beyond the academy: for lawyers, law students, political scientists, and policymakers. The book is accessible to college students and advocates.
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Professor Hing provides an overview of detention and deportation practices enacted by modern presidents to illustrate the arc of immigration enforcement. Drawing on real cases from the Immigration and Deportation Defense Clinic at the University of San Francisco (USF) Law School where he teaches, Hing provides readers with first-hand accounts of the difficult experiences of immigrants at the U.S. southern border. Hing has been there and witnessed a lot of these encounters. The stories he relays, detail the mistreatment of people -- families and individuals -- at detention centers, the traumatizing deportation process, and the inadequacy of the immigration courts to hear their claims and to provide humanitarian relief.
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The book moves chronologically across six presidential administrations, including Republicans Ronald Reagan and George H. Bush; Democrats Jimmy Carter, Bill Clinton, and Barack Obama; and then culminating with Donald J. Trump’s administration. Although it was published in 2019 before President Joseph Biden took office, the recounting of the Obama administration contains the seeds for the outgrowth that is still unfolding as of this writing.
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The book opens, fittingly, at the U.S.-Mexico border. Operation Gatekeeper, a controversial border enforcement policy initiated by Bill Clinton’s administration, deployed a strategy of “control through deterrence” that prompted intensified enforcement and militarization of the portions of the southern border frequented by border crossers. Instead of deterring migrants, Operation Gatekeeper forced them to take more dangerous points of entry and use more treacherous modes of transport, resulting in “one avoidable death each day” due to dehydration and sunstroke (p. 3). The vignette shows that when presidential administrations enforce borders in aggressive ways, human lives are harmed in the process. The message is particularly sobering when realizing that the economic migrants entering without inspection in the 1990s would become political asylum-seekers fleeing violence as control of the border hardened. As migration flows shifted from Mexico to Central America, the dominant stream of migration today, the trauma erupting from the border shows that deterrence doesn’t work when people are desperate and seeking protection of their human rights.
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Lest the reader believe the border is the worst of it, <a name='more'></a>Hing moves inside the U.S. for his piece de resistance: detention. He mostly discusses the U.S. Immigration and Customs Enforcement (ICE) policies, raids, and deportations in the George W. Bush and Obama administrations. He describes their ill-advised tactics, including the targeting of community organizers and immigrants who advocated for more humane treatment. But it is the detention centers that become the nightmare in the story. Family detention and family separation shamed President Obama and Trump respectively. These themes are the focal point of the book.
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“Obama’s Shame” is the centerpiece of Hing’s critique of the deportation apparatus, especially the rocket dockets that led to the rapid hearings with scant due process for the most vulnerable asylum seekers. Hing vividly depicts the harsh realities of family detention centers filled with children and women and cells for unaccompanied children. (Many of these conditions would eventually be found in violation of human rights in the FLORES settlement agreement). Hing says this is “a story that needs to be told about a tragic mistake in immigration enforcement… that began with Obama” (p. 17) and demonstrates a broader “unsympathetic nature of enforcement policies” that would prompt the moniker “Deporter-In-Chief” (p. 1, 90). With the Congressional hearings and media coverage that ensued about the deplorable conditions and rights abuses in family detention, some of the anecdotes told here are more familiar today than they would have been then. Yet in telling the story, Hing gives context to <i>why</i> migrants are crossing the southern border by explaining the conditions in Central America that prompt women and children to take risky journeys, only to later tolerate the routine exploitation by U.S. government officials at CBP and ICE. These detention centers threaten the health and safety of their inhabitants – in other words, their basic human rights – and these negative effects on the women and children are exhibited through interviews. Hing very frankly concludes, “the use of family detention centers needs to end” (p. 142).
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If Obama was a Deportation Champion, Trump became the Deportation King, who expanded on Obama’s tools of immigration enforcement. Family detention occasioned family separation as immigrant adults were prosecuted in the criminal system and held in cells separate from their children. Problematic enforcement priorities became a zero tolerance strategy that terrorized <i>all</i> immigrants, including those who were part of the fabric of daily life in America. This ongoing maltreatment eventually led to the rescission of Deferred Action for Childhood Arrivals (DACA) and the callous treatment of Salvadorean, Haitian, and African asylum seekers, who might otherwise be protected under human rights laws incorporated within DACA. The brashness of the Border Patrol and multiple presidents’ unwillingness to curb their abuses became Remain in Mexico and Title 42. In detailing Trump’s enforcement excesses, Hing suggests that the prospect of abuse was already ripe for picking. The prospect can be seen in the immediately preceding administrations. But it can also be seen going back to the Carter administration’s mishandling of Iranian students in the United States, whose trivial infractions put them at risk in the lead up to the Iranian hostage crisis, and many other episodes that show presidents targeting immigrants for exclusion – often from communities of color – without reproach. One year after Hing, Cristina Rodriguez and Adam Cox’s 2021 book on executive discretion and abuses of presidential power (THE PRESIDENT AND IMMIGRATION) makes similar connections from Carter to Trump. Rodriguez and Cox say that presidential policymaking in immigration is not a bug, but instead a “signal feature of the structure of immigration law” (p. 12). Assessing the uses and abuses of executive power in immigration law calls for recognition that as a result of this structure, leaves much to presidents, they are “inevitable.”
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Although looking to the past helpfully informs present deportation and detention policy, the back and forth in the “contextualization” of the Trump administration sometimes gets messy. However, the many stories and multiple moments in history (especially when paired with Hing’s earlier reflections on immigration practice that began in the 1970s, see DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY) effectively show that the problems in immigration enforcement policies enacted by modern presidents are unrelenting. This long view gives them an inexorable quality: the problems change form, but not type.
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The painful tale of American deportation sets up the inevitable questions: What now? How to “disrupt the deportation royalty” (p. 313)? The book’s epilogue and afterword considers how, in the future, presidents and their administrations should be hindered from making enforcement choices that cause unnecessary havoc to immigrant communities. Hing notes that immigrants and their supporters helped to push the Obama administration into engaging in disruptive immigration innovation in the creation of the Deferred Action for Childhood Arrivals program. He encourages them to push for a disruption of deportation policy as well (p. 313).
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In the years since Hing’s book was published, some things have gotten better. Enforcement priorities have been reinstituted and upheld by the U.S. Supreme Court (TEXAS v. U.S. (2023)). For those who nevertheless get caught in the immigration trap, categorical relief in the form of Temporary Protected Status (TPS) and individual relief in the form of asylum are more viable than it was before. Yet, President Biden has disappointed on detention and deportation of refugees that are the heart of this book. To be sure, the Central American refugee crisis made a long-standing humanitarian crisis worse. But despite Vice President Biden’s calls for regional development to reverse the root causes of this crisis in 2014, President Biden’s immigration officials have doubled down on deterrence by telling migrants “do not come” in 2021 and by requesting more time to lift a public health order that crippled the asylum process for those who came anyway in 2022. Detention centers, for those who manage to access the asylum process, remain hubs of trauma and exploitation, operated by for-profit private prison companies that make close to $500 million each year for holding 30,000 immigrants. This is not solely the U.S. government’s doing. But the government cares too little about who is entering or exiting the country and is committing too few resources to meaningful relief. Public protests of family separation were decisive in ending the reprehensible practice, but institutional politics and courts can be maddeningly unresponsive and unreliable safeguards for human rights.
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Ultimately, Hing’s suggestions go beyond institutional politics. He suggests, for example, a citizen oversight panel that focuses on the anti-humanitarian effects of immigration enforcement (p. 313). With some of the most inhumane policies taken off the books, critical immigration scholars have started calling for bolder reforms and even the abolition of detention (see references). Hing would welcome these new voices because “constant disruption is needed in all forms…if we are to convince public policy leaders to review immigration enforcement policies with a moral foundation” (p. 337).
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<br />
CASES:<br />
<br />
UNITED STATES v. TEXAS, No. 22-58 (2023).<br />
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REFERENCES:<br />
<br />
Blue, Ethan. 2021. THE DEPORTATION EXPRESS: A HISTORY OF AMERICA THROUGH FORCED REMOVAL. University of California Press.
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<br />
Cházaro, Angélica. 2021. “The End of Deportation.” U.C.L.A. LAW REVIEW 68: 1040.
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<br />
Cox, Adam B. and Cristina M. Rodriguez. 2020. THE PRESIDENT AND IMMIGRATION LAW. Oxford University Press.
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<br />
Goodman, Adam. 2020. THE DEPORTATION MACHINE: AMERICA’S LONG HISTORY OF EXPELLING IMMIGRANTS. Princeton: Princeton University Press.
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<br />
Hernández, César Cuauhtémoc García. 2021. “Criminalizing Migration.” DAEDALUS 150, No. 2: 106-119.<br />
<br />
Hernández, César Cuauhtémoc García. 2023. MIGRATING TO PRISON: AMERICA’S OBSESSION WITH LOCKING UP IMMIGRANTS. The New Press.
<br />
<br />
Hing, Bill On. 2006. DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY. Cambridge: Cambridge University Press.
<br />
<br />
Schrag. Philip G. 2020. BABY JAILS: THE FIGHT TO END THE INCARCERATION OF REFUGEE CHILDREN IN AMERICA. University of California Press.
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© Copyright 2023 by authors, Chen H. Ming and Miquela Kallenberger.
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-9317458322677398402023-07-24T12:40:00.003-04:002023-07-25T11:55:39.724-04:00COMMITTED TO RIGHTS: UN HUMAN RIGHTS TREATIES AND LEGAL PATHS FOR COMMITMENT AND COMPLIANCE<img src= https://assets.cambridge.org/97811088/30072/cover/9781108830072.jpg align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 05 (June 2023) pp. 73-76<br />
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COMMITTED TO RIGHTS: UN HUMAN RIGHTS TREATIES AND LEGAL PATHS FOR COMMITMENT AND COMPLIANCE by Audrey L. Comstock. Cambridge University Press, 2021. 200 pp. Hardcover: $110. ISB: 9781108908979.<br /> <br />
Reviewed by Rachel J. Schoner. Department of Political Science, Tulane University. Email: rschoner@tulane.edu.
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In COMMITTED TO RIGHTS: UN HUMAN RIGHTS TREATIES AND LEGAL PATHS FOR COMMITMENT AND COMPLIANCE, Audrey Comstock expands the traditional scholarly view of commitment to international agreements and finds that the pathway to participation and commitment matters for state practices. With a clear motivation and compelling takeaway, this book shows that a broader understanding of commitment helps us better understand compliance.
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Comstock challenges the dominant ratification-centered approach of international human rights scholars. The expansive work on the international human rights regime has primarily focused on binding treaty commitments, lumping some types of commitment—ratification, accession, and succession—together and ignoring others—signature. Comstock argues that disaggregating commitment into these four types has important implications for compliance with human rights treaties. The different forms of commitment involve varying levels of support from domestic actors for the norms and standards in the treaty, which affects human rights practices. This is an important contribution to the international relations literature and is sure to influence studies of international law broadly.
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Comstock structures the book in an intuitive manner. First, she presents the book’s argument before detailing ratification, the most studied form of commitment. The book focuses on the nine core United Nations human rights treaties that are discussed throughout the chapters. Comstock then provides an overview of the three additional types of commitment—signature, accession, and succession—which lays the foundation for the remainder of the analysis. One chapter is devoted to each commitment type, unpacking the process and its effect on compliance with human rights treaties. The author concludes with a positive takeaway: human rights treaties do matter and, more specifically, “creating and participating in treaty drafting was a pathway towards compliance” (p. 193).
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Despite this clear and compelling takeaway, the ambitious endeavor leaves the reader with several questions throughout the chapters, ripe for future research. Overall, an all-too-common critique for scholars of compliance, there are concerns about selection and the work warrants more descriptive discussion. In this new exploration of commitment type and its effect on compliance, more emphasis on why states decide on the different types of commitment would be helpful. Comstock describes the commitment types, overall patterns, anecdotal evidence, and case studies. However, some gaps are left to be filled, including: the timing of signature and ratification, decisions to participate in treaty negotiations, and why do some but not all states accede?
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The large literature on why states participate in the international human rights regime and what effect multilateral treaties may have on respect for human rights centers on ratification. Why do states ratify these treaties, agreeing to respect a host of rights many of them routinely violate? What effect does this ratification have on human rights practices? Comstock pushes back against this nucleus by stating, “I do not treat ratification as the pinnacle of commitment and compliance” (p. 42). States can commit in a variety of ways, and she argues that this commitment pathway matters for long-term compliance.
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The first departure from the ratification-centered approach is treaty <b>signature</b>. This is an interesting form of commitment because <a name='more'></a>it is the only non-binding action and is often an initial commitment. Despite many scholars’ dismissal of non-binding commitment as unimportant, the United Nations celebrates this action. First, domestic mobilization isn’t limited to ratification, and legal mobilization can also occur around signing. Secondly, an executive leader can sign international treaties as a sign of support serving as an “advocate executive.” In some states, the executive can unilaterally ratify treaties. Others, however, including the United States, have domestic legal barriers to ratification, which Comstock labels as “legislative approval states.” It is in these legislative approval states, where ratification is more difficult, in which the executive can signal support of a treaty, regardless of other domestic political actors. Here, with buy-in from the executive leader, Comstock expects to see an improvement in human rights after signature, not ratification.
<br /> <br />
Comstock does convince the audience of the overlooked importance of signature, but leaves questions in the reader’s mind. More analysis, theoretically and empirically, of the choice between and timing of signature and ratification is warranted. Why do some states sign and ratify close together, and why do others wait longer? Moreover, the case studies of Nigeria and the U.S. prompt more questions.
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The U.S., a legislative approval state, signed the International Covenant on the Elimination of All Forms of Racial Discrimination, improved rights, and ratified the treaty much later. This case study highlights the intuitive theory: the executive, signing the treaty, is invested in its norms and ideas, and it need not wait for the legislature to act to make improvements. Why does the executive wait to sign the treaty to act on these norms and improve human rights? If these are norm entrepreneurs, these leaders, who are largely in control of government repression, could act and change behavior earlier.
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The Nigeria case study also raises questions about the theoretical mechanisms. President Olusegun Obasanjo signed the Convention on the Rights of Persons with Disabilities in March 2007 but refused to sign a bill that would implement the terms of the treaty into law. While this case study is presented as exploring the legal mobilization mechanism, it seems to discredit the notion of the advocate executive. Why did Obasanjo sign the treaty anyway, unwilling to enact any meaningful reform? This case necessitates further theoretical discussion of the two mechanisms and when and where they could be operating, together or independently.
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Next, Comstock discusses <b>accession</b>: “the binding form of treaty commitment available to states that did not negotiate the treaty and/or missed the original window of opportunity to sign the treaty” (p. 55). She finds that participation in negotiations has lasting effects. States that participate in treaty negotiations and ratify the International Covenant on Civil and Political Rights have improved human rights practices after commitment. On the other hand, states that opted out of negotiations and accede rather than ratify had worse practices after commitment. Importantly, Comstock excludes newly independent states that were unable to participate in negotiations.
<br /> <br />
Comstock finds benefits of participating in treaty negotiations, which is a main policy prescription at the end of the book. The selection into negotiations, however, isn’t sufficiently addressed: why do some states decide to participate in negotiations while others opt out? The lasting divide between participants and non-participants is not fully convincing. The author points out that the U.S. was a participant in the International Criminal Court negotiations and states that the U.S. is still supportive of the ICC because of this participation despite withdrawing its signature. The United States, however, has been outspoken against the Court’s activities, stating long-standing objections against the Court’s efforts to assert jurisdiction against American servicemembers, pressuring countries to sign bilateral immunity agreements, and sanctioning two head officials of the ICC. This leads to a larger question: What about states that negotiate but do not commit? Do all states that negotiate human rights treaties commit in some way?
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The final form of commitment is <b>succession</b>: “the binding form of legal commitment to treaty law by new states that are replacing prior states’ ratification” (p. 55). This is the most unique form of commitment where newly independent states take on the obligations of the predecessor state. There are two periods where this was relatively common: (1) decolonization and (2) the end of the Cold War/ dissolution of the Soviet Union. Comstock makes a convincing point about bringing succession into the discussion: “The succession of human rights treaties is of particular interest and importance due to the circumstances through which many cases of state succession occur: political instability, violence, and often, widespread violation of human rights” (p. 157). Treating succession as a signal for respecting established human rights norms, she expects succession to lead to improved human rights practices.
<br /> <br />
The circumstances around succession warrant further discussion. Why do some but not all states accede? The Soviet Union case is interesting, with variation among successor states. Estonia, Lithuania, and Latvia did not want succession to distinguish them from their predecessor state. When states accede, do they typically do so for all prior commitments, or selectively among treaties?
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Due to the rarity of succession—54 times across the nine core human rights treaties— more descriptive analysis is merited. As Comstock acknowledges, the small number of cases drives the statistical model in ways we cannot be fully confident in. For succession, the relevant comparison, or counterfactual, is important to consider. Because it’s a new country, we cannot fully compare it to the prior period, but this is an important consideration. Graphing the human rights values for the predecessor state and the newly formed states over time would be a helpful exercise. This “within-case” comparison would complement the current focus on comparing succession to ratification. Additionally, the two waves of succession prompt the question of whether these waves are unique? Theorizing more about these two waves and their applications to current territories and independence movements today would be a fruitful exercise.
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Comstock’s COMMITTED TO RIGHTS provides the international relations and international law literatures with a clear and important takeaway: the different legal pathways states take to commit to human rights treaties mattr. The questions raised about the selection into commitment types are fruitful topics for future research to complement this book’s bold emphasis on expanding scholarship’s view of treaty commitment and its impact on compliance. This work will have a broad impact on the scholarship of international law, human rights, and compliance.
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© Copyright 2023 by author, Rachel J. Schoner.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-75492951011996272752023-05-31T15:50:00.044-04:002023-05-31T15:50:00.140-04:00AFFECTIVE JUSTICE: THE INTERNATIONAL CRIMINAL COURT AND THE PAN-AFRICANIST PUSHBACK<img src= https://www.dukeupress.edu/Assets/Books/978-1-4780-0670-1_pr.jpg align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 04 (May 2023) pp. 47-54
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<br />
AFFECTIVE JUSTICE: THE INTERNATIONAL CRIMINAL COURT AND THE PAN-AFRICANIST PUSHBACK, by Kamari Maxine Clarke. Duke University Press Durham and London 2019. pp. 375. ISBN: 9781478007388 Hardcover $114.95. ISBN: 9781478005759. Paperback $30.95. ISBN: 9781478006701).
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Reviewed by Ovo Imoedemhe PhD. Lecturer, School of Law, University of Bradford, United Kingdom. Email: o.c.imoedemhe@bradford.ac.uk
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Kamari Maxine Clarke’s AFFECTIVE JUSTICE: THE INTERNATIONAL CRIMINAL COURT AND THE PAN-AFRICANIST PUSHBACK unravels the miseries and mysteries around the relationship and functioning of the International Criminal Court (ICC) and African states. Over the past few decades, the ICC has been the subject of criticisms and accusations of targeting African leaders, with postulations about its practice, procedure, and effectiveness. Established by the Statute adopted in Rome (Rome Statute), Italy in 1998, the ICC has been operational for over 20 years, having entered into force on July 1, 2002. Contrary to the several criticisms leveled against the Court, the fact remains that the ICC functions on two main pillars: complementarity and cooperation. However, the first decade of the operational phase of the ICC saw only Africans and African leaders from Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR), Kenya, Sudan, Mali, and Cote d’Ivoire being prosecuted at the Court.
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This asymmetrical posture prompted questions: Is Africa a laboratory or a scapegoat? Why has Africa become the most “frequent user and ‘repeat customer’” of the ICC? Why is Africa portrayed as being exclusively responsible for all of humanity’s inhumanities and criminalities? Certain African leaders also postulated that Africa is not against international criminal justice; however, it appears that a “fraudulent institution” in the guise of the ICC, was established to put Africa in a somewhat laboratory test for international criminal law. The activities of the United States of America and the United Kingdom in Afghanistan and Iraq in 2003 are examples of situations that befit investigations and prosecutions by the ICC. Arguably, however, there is an unspoken truth about international criminal justice, in that certain individuals and countries will never be indicted before the ICC. This is what is referred to as selectivity ratione-personae, which is both legal and legitimacy-based.
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Highlighting the issues of selectivity amongst others, this piece by Clarke is inclusive, pervasive, and highly intellectual. She produced a clear thesis that explores the practice of the ICC from a Pan-Africanist perspective and evaluates the decisions of the Court in line with its complementarity and cooperation pillars. Critically, the ICC functions by its enabling Statute – The Rome Statute. In accordance with its trigger mechanisms – referrals by states, the United Nations Security Council (UNSC), and <i>proprio-motu</i> powers of the ICC Chief Prosecutor, as outlined in the Statute, the ICC’s practice and procedure in investigations and prosecutions of situations and cases have been rightly guided. Therefore, Clarke’s assumptions and perspectives as articulated in the book AFFECTIVE JUSTICE are clear, concise, and appropriate.
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Within the space of over four years, AFFECTIVE JUSTICE is the outcome of rigorous research and several physical visits to some African countries. Specifically, the author visited post-violence sites <a name='more'></a>in Kenya and Nigeria, collected data in relation to international criminal trials at the ICC in The Hague, engaged with civil society organizations, and attended African Union (AU) Summits and meetings in Addis Ababa, Ethiopia. The robustness of the book is demonstrated by the conscientious travels to different regional courts, such as the African Court in Tanzania, the Extraordinary African Chambers in Senegal, and engagements in the Assembly of State Parties of the AU, in which Clarke attended meetings, conferences, and workshops.
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Thus, in order to unravel the mysteries behind the challenges and criticisms of the ICC as an international criminal justice institution, Clarke saw the need to grapple with the paradoxes of contemporary justice; justice that is affective, justice that is tainted by individual sensibilities, memories, aspirations, fears, and hopes.
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The book is divided into two parts: Part 1 is entitled “Component Parts of the International Criminal Law Assemblage” and it includes Chapters 1 to 4, whilst Part II encompasses discussions around “Affects, Emotional Regimes and the Reattribution of International Law”, covered in Chapters 5 and 6. With detailed sources, resources, and data collection, Clarke provides a summary of each chapter set out in Parts I and II, giving the reader an exposé into the sturdiness of the discourse within the book (pp. 41-45). AFFECTIVE JUSTICE is well organised and clearly written as it provides insights into the author’s thoughts and the concerns of three interlocutors regarding the “justice narrative”, which she identifies through the opinions of said interlocutors that “…law has the potential to provide a way out of the poisoned politics of the post-colonial state” (p. xxi). This introduction sets the tone for the ensuing parts of the book.
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<b>PART I – COMPONENT PARTS OF THE INTERNATIONAL CRIMINAL LAW ASSEMBLAGE
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In the Introduction, “Formations, Dislocations, and Unravelings”, Clarke alludes to the referral of the situation in Darfur, Sudan to the ICC in 2005 and the subsequent indictments and arrest warrants issued against former President Hassan Omar Al-Bashir, the underlying rationale for Clarke’s adoption of the term “affective justice” was clearly articulated. She posits that “affective justice” is a term advanced to facilitate “…understanding of people’s embodied engagements with and production of justice through particular structures of power, history and contingencies” (p. 5). Affective justice reflects embodiments of feelings that are manifested in expressions and embodied in practices, including the spoken word, legal actions, and innovations, or electronically mediated campaigns. Accordingly, Clarke notes that in an attempt to shape justice institutions and conceptions of justice, the ICC and AU agents, nongovernmental advocates, and civil society activists compete for control of social norms or challenge those norms to produce new ones. Thus, affective justice reflects the way that people come to understand, challenge, and influence legal orders through the biopolitical instrumentalization of technocratic knowledge, as well as through their affective embodiments, interjections, and social actions. On the contrary, international justice is often presumed to be outside the realm of these practices of construction. Rather, it is seen by many of its advocates as objective and non-prejudicial (p. 5).
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These engagements are the main highlights in Chapter 1, where details of “Genealogies of Anti-Impunity: Encapsulating Victims and Perpetrators” are conceptualized. With specific reference to Kenya and Kenyan Criminal Law, Clarke highlights the inextricable perceptions of justice from the perspectives of the ICC and African leaders, identifying the “…inability of international law to adequately protect or compensate those victimized by violence” (p. 53). The Chapter emphasizes “...how law’s biopolitical techniques contribute to the technocratic management of violence through its emotive and aspirational force”(p. 54).
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Within the Chapter, Clarke’s penchant for excellence and meticulous research is demonstrated in the analysis of the historical origins of transitional justice, governance mechanisms through different continents including Africa, the idea of neo-liberal reforms, and the resulting influences on political control and economic inequalities. The Chapter further expounds on the notion of “transitional justice”, a term that has been effectively implemented by South Africa and Rwanda in the aftermath of apartheid and genocide that occurred in both countries. Transitional justice exemplified in these countries were encapsulated in the idea of amnesty thereby eroding the concept of retributive justice. At the core of the Truth and Reconciliation Commission (TRC) of post-Apartheid South Africa, for example, was the idea of forgiveness. With three committees, namely, the Amnesty Committee, the Reparation and Rehabilitation (R&R) Committee, and the Human Rights Violations (HRV) Committee, “justice” was served in accordance with the Promotion of National Unity and Reconciliation Act No 34 of 1995.
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Similarly, post-genocide Rwanda had three mechanisms by which those who were most responsible for the genocide and other human rights and humanitarian law violations were criminalized. These included the Rwanda National Courts, the International Criminal Tribunal for Rwanda (ICTR), and the Gacaca Courts. Consequently, Clarke aptly identifies that “...what became clear was that forgiveness also required the acknowledgement that a ‘perpetrator’ had committed an offence” (p. 66). Critically, there is a “paradigm shift from forgiveness to accountability… of perpetrators for international crimes and …international tribunals that hosted multiple trials of named ‘perpetrators.’ This became the testing grounds for determining whether the deployment of criminal justice in post-war contexts could be used to advance political transitions” (p. 67). This part of the Chapter skillfully provides some food-for-thought for international criminal law experts and readers generally, which allows them to evaluate the nuances of international criminal justice in war-torn or post-war contexts with increased curiosity regarding the approaches of international criminal tribunals; ICTY, ICTR, and the ICC.
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Chapter 2, entitled “Founding Moments? Shaping Publics through Sentimental Narratives”, identifies the “…way that feelings of alliance and compassion are generated through political speeches and legal narratives that…make various anti-impunity ICC and Pan-Africanist justice discourses real…” (p. 91). Chapter 3 highlights the “Bioremediation and the #BringBackOurGirls Campaign”, which provided the historical background to this slogan that brought to light the kidnapping of over three hundred girls, who were abducted from a school in Chibok, Nigeria. In addition, the chapter highlights the related violence inflicted by Boko Haram in the context of the differences between the southern and northern parts of Nigeria. The Chapter reflects a social phenomenon and the influence of “various forms of electronic and digital media, such as hashtag activism, [which]...provides renewed platforms to confront injustice…” (p. 118).
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AFFECTIVE JUSTICE is dexterously written with ingenious interlinkages and postulations about the different perspectives on international criminal justice, thereby providing an emotional, yet historical and analytical evaluation of key figures and situations within Africa, and the socio-economic, political, and cultural influences, which affect distributive justice. For example, in Chapter 4 entitled “From Perpetrator to Hero – Renarrating Culpability through Reattribution”, the histo-political narrative of Kenyan leaders is indicative of the author’s thoughts on “historical emotional sensibilities and contemporary emotional climates…social domains that produce emotional cultural sensibilities, they engage in the socialization of practices and attitudes and create acceptable meanings out of particular political contexts” (p. 141).
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With regards to the notion of “legal time,” Clarke posits that “...attributing guilt through strict understandings and demarcations of time is critical to anti-impunity formations in international criminal law. Rather than reflecting on historical developments or broader root causes, ICC jurisprudence has adopted a relatively strict view of temporality with the recognition that non-retroactivity or the principle of <i>nullum crimen sine lege</i> – no crime except what is proscribed by law – is one of the central tenets of law”(p. 171). Consequently, Clarke’s histo-political narrative is justified succinctly in the following:
<blockquote>I am not suggesting that those who are responsible for mass violence should not be held accountable for their role in wrongdoing. What I am highlighting here, however, is that competing attributions of culpability reveal substantive differences between social and legal justice in shaping varying understandings of guilt as affective formulations of culpability. They highlight the afterlife of disappointment with the failure to balance power historically in postcolonial Kenya, set alongside the articulate failure of the law to rectify histories of human dispossession from their ancestral land…(p. 171).
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<b>PART II – AFFECTS, EMOTIONAL REGIMES AND THE REATTRIBUTION OF INTERNATIONAL LAW
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Having articulated a historical basis which facilitates understanding of the differences between social and legal justice and affective formulations of justice in African states, Part II of the book highlights the role of the African Union (AU), including key international instruments geared towards social, economic, environmental and political development. This part of the book highlights the way affective justice techniques find expression alongside these instruments, including the possibility of an African Court with “international criminal jurisdictions offer[ing] … a lens through which to explore new cartographies of African justice…” (p. 183). Indeed, the Malabo Protocol and the creation of the criminal jurisdiction for an African Court have yet to see the light of day. On June 27, 2014, the Assembly of Heads of States and Government of the African Union at its Twenty-third Ordinary Session, adopted the Protocol establishing the African Criminal Court in Malabo, Equatorial Guinea. The Protocol merged the African Court of Human and Peoples’ Right and the Court of Justice of the African Union into one Court, granting it international criminal jurisdiction. However, nine years down the line, with only 15 signatories out of 55 African states, the Malabo Protocol has yet to attract one ratification, and therefore, “affective justice” from the AU perspective seems far-fetched.
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Chapter 6, “Reattributions: The Refusal to Arrest and Surrender African Heads of State” reflects on the dissatisfactions and disaffections leading to threats of withdrawals of several African states from the ICC. Burundi, South Africa, Gambia, Kenya, etc. were some African states who have threatened withdrawals. The Gambian minister charged, noted that “[D]espite being called International Criminal Court, [it] is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans” (p. 218).
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In 2010, at a Summit of African heads of state, Malawi raised concerns about the ICC’s encroachment on state sovereignty. In the context of arrest warrants issued against former President Al-Bashir, the Malawian president Bingu wa Mutharika noted:
<blockquote>To subject a sovereign head of state to a warrant of arrest is undermining African solidarity and African peace and security that we fought for so many years. . . . There is a general concern in Africa that the issuance of a warrant of arrest for . . . al-Bashir, a duly elected president, is a violation of the principles of sovereignty guaranteed under the United Nations and under the African Union Charter… (p. 222).
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These arguments were further raised in the wake of the Kenyan post-election violence that led to the indictment of former president Uhuru Kenyatta, his then deputy William Ruto, and four others (popularly referred to as the “Ocampo Six”). However, these cases have long been withdrawn from the ICC due to frustration arising from the non-cooperation of the Kenyan authorities to provide evidence and witnesses to prosecute the cases. Succinctly, AFFECTIVE JUSTICE left no stones unturned. Clarke indeed exhibited an unusual wit and ability to analyse ICC cases involving African heads of states. The question remains: “Why Africa?” With the establishment of the ICTY and ICTR, Richard Goldstone noted thus:
<blockquote>The problem with the UNSC is that it says no in the case of Cambodia, Mozambique, Iraq and other places where terrible war crimes have been committed but yes in the case of Yugoslavia and Rwanda. It is noteworthy that no ad hoc tribunals would ever be established to investigate war crimes committed by any of the five permanent members of the United Nations Security Council or those nations these powerful states might wish to protect (Goldstone, 2013).
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This re-echoes the selectivity discourse. Accordingly, Gerry Simpson notes that “...each war crime trial is an exercise in partial justice to the extent that it reminds us that the majority of war crimes remain unpunished. If Yugoslavia why not Somalia, if Rwanda why not Guatemala” (p. 8). Similarly, Alfred Rubin postulated that unless the law can be seen to apply to George H.W. Bush, who ordered the invasion of Panama, it would seem hypocritical again. A similar quagmire holds in the 21st Century invasion of Ukraine by Russia ordered by President Vladimir Putin since February 24, 2022. Although Article 28 Rome Statute makes a commander or person in control who fails to take all necessary measures to prevent or suppress the commission of atrocious crimes criminally responsible, yet it appears that political consideration, power, and patronage continues to determine who is tried for international crimes and who is not.
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Clarke’s AFFECTIVE JUSTICE exposes the various socio-economic, historical, and political phenomenons, which entangle criminal justice. The book reflects a culmination of Clarke’s perspectives during the “Africa Debate” in 2013 on the theme: “Is the ICC Targeting Africa Inappropriately or are there sound reasons and justifications for why all of the situations currently under investigation or prosecution happen to be in Africa?” (Africa Debate). Clarke posited:
<blockquote>Africa’s submission to the ICC jurisdiction exists within political and structural inequalities in the global arena, meaning that the ICC’s involvement in Africa is not simply a question of the ICC’s targeting of Africa. Nor is it a matter of whether African states themselves participated in referring particular cases. Rather, it is to do with which crimes can be pursued, which agents can be held responsible, whether Africa’s violence can be managed by African countries and whether the crimes of the Rome Statute are sufficient to address the root causes of violence in Africa’s political landscape (Africa Debate, 2013).
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<b>Conclusion: Is an African Court the Solution?
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The proposed establishment of an African Court has suffered setbacks. While the Pan-African Pushback in the wake of threatened withdrawals from the ICC is real, justice delivered to Africans, who are the victims of international crimes, outweighs the accusations of unfair targeting of Africa by the ICC. It is doubtful that the establishment of an African Court would provide the much-needed solution. As articulated by Clarke,
<blockquote>The conundrum of contemporary AU Pan-Africanism is that alongside deep-seated conceptions of the Pan-African liberatory past is actually a deep desire to participate in contemporary neoliberal power, in global power. The resistance to extradition and the anti-ICC mobilizations are expressions of this… These affective geographies create ambivalences that cannot be simply understood genealogically and mapped out with precision. The recognition of the violence of marginalization operates like ghosts in the present, even as there is a duelling struggle to become part of that which it marginalizes (p. 215).
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Consequently, Clarke’s in-depth analysis of “transitional justice” and the AU Transitional Justice Framework, provides the mechanisms deployed by the AU in conflict management, restoration of justice, peace, and security. Whilst admitting that there are “complex political dynamics” in attempting to facilitate peace and justice arising from various incidents of violence across Africa and by African leaders, AFFECTIVE JUSTICE proposes possible hybrid interventions, such as a, “…hybrid court that fuses domestic and international criminal justice procedures… that works in collaboration with complementary domestic alternative justice mechanisms that may function in tandem with various prosecutions – including the ICC when necessary” (p. 200). The idea of hybridized courts seems plausible, as this might resolve the limitations of the Malabo Protocol. However, this might militate against the African Renaissance and the concept of African solutions for African problems.
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Undoubtedly, AFFECTIVE JUSTICE by Clarke is a scholarly work that addresses the political mix and nuances within which the ICC functions. The future of international criminal law is necessarily domestic. Focusing on some African states, the book reiterates the point of whose justice is being served by the ICC: Africa or the West? Justice according to who? Clarke provides insights into responses to judicial inequalities that do not always find expression in legal frameworks alone, as well as the social imaginaries that are shaped by perpetual campaigns for legal justice.
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Bottom line: AFFECTIVE JUSTICE is an outstanding book that involved creative research design and painstaking data collection. It is a must-read for anyone interested in the work of the ICC, and an indispensable tool for the ICC, AU, African Heads of Governments and States, African Criminal Justice Systems, Judges, Law Courts, Lawyers, Academics, Researchers, Students, Civil Societies, and Non-Governmental Organizations (NGOs).
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REFERENCES:<br />
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Akande, D., (2004), ‘International Law Immunities and the International Criminal Court’ <i>American Journal of International Law </i>98(3).<br />
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Bikundo, E. (2012), ‘The International Criminal Court and Africa: Exemplary Justice’ <i>Law and Critique</i> 23(1)<br />
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Clarke, K.M (2013), “Is the ICC Targeting Africa Inappropriately or are there sound reasons and justifications for why all of the situations currently under investigation or prosecution happen to be in Africa?” <i>ICC Forum</i> [blog], March 2013. https://iccforum.com/africa
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Clarke, K.M, (2009) <i>Fictions of Justice: The ICC and the Challenge of Legal Pluralism in Sub-Saharan Africa</i> (CUP 2009).
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Cryer, R., (2009), <i>Prosecuting International Crimes: Selectivity and the International Criminal Law Regime</i> (CUP).
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Goldstone R., (2013) in David Hoile, ‘ICC, A Tool to Recolonise Africa’
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Ian, B. (2019), <i>Principles of International Law</i> (9th edn. OUP 2019).
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Igwe, C. (2008), ‘The ICC’s Favourite Customer: Africa and International Criminal Law’ <i>Comparative & International Law Journal of Southern Africa</i> 41(2).
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Imoedemhe, O.C (2017), <i>The Complementarity Regime of the International Criminal Court: National Implementation in Africa</i> (Springer 2017).
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Jean Ping (former Foreign Minister of Gabon Headed AU 2008-2012)
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Kambudzi, A. (2007), ‘The International criminal Court and Africa: The AU and the ICC’ in Max du Plessis & Louw, A (eds) <i>The Investigation and Prosecution of Core International Crimes and the Role of the International Criminal Court in Africa.</i>
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Keppler, E., (2012), ‘Managing Setbacks for the International Criminal Court in Africa’ <i>Journal of African Law</i> 56(1).
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Rubin, A. (1993) <i>International Crimes and Punishment</i> (Centre for the National Interest Fall 1993) No 33.
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Schabas, W. (2011) ‘The International Criminal Court at Ten’ <i>Criminal Law Forum</i> 22.
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Simpson, G. (1997) ‘War Crimes: A Critical Introduction’ in McCormack T, & Simpson G (eds) <i>The Law of War Crimes: National and International Approaches</i> (Martins Nijhoff 1997)
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Simpson, G. (2007), <i>Law and Crime: War Crimes Trials and the Reinvention of International Law</i>. Polity Press.
CASES:
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<i>Prosecutor v Delalic Mucic and Landzo</i> No. IT-96-21-T (<i>Čelebići</i> case)
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<i>The Prosecutor v Omar Hassan Ahmad Al-Bashir</i> ICC-02/05-01/09<br />
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<i>The Prosecutor v Uhuru Muigai Kenyatta</i> ICC-01/09-02/11<br />
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© Copyright 2023 by author, Ovo Imoedemhe.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-65122277714183807542023-05-31T15:48:00.002-04:002023-05-31T15:48:00.148-04:00THE ANTEBELLUM ORIGINS OF THE MODERN CONSTITUTION: SLAVERY AND THE SPIRIT OF THE AMERICAN FOUNDING<img src= https://assets.cambridge.org/97811087/91458/cover/9781108791458.jpg align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 04 (May 2023) pp. 44-46
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THE ANTEBELLUM ORIGINS OF THE MODERN CONSTITUTION: SLAVERY AND THE SPIRIT OF THE AMERICAN FOUNDING, by Simon J. Gilhooley. Cambridge: Cambridge University Press, 2020. pp.273. Cloth $110.00. ISBN: 978-1-108-49612-4. Paper $29.99. ISBN: 978-1-108-79145-8.
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Reviewed by Christopher Childers. School of History, Philosophy, and Social Sciences. Pittsburg State University. Email: rchilders@pittstate.edu.
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Understanding the origins and evolution of American constitutional interpretation has occupied the work of historians and political scientists for some time. But more recently, a fresh body of work has emerged that reexamines how our constitutional thought developed over time. Scholars such as the historian Jonathan Gienapp, in his book THE SECOND CREATION: FIXING THE AMERICAN CONSTITUTION IN THE FOUNDING ERA, have analyzed how the idea of a fixed Constitution came into being during the early American republic. Early Americans developed a notion of constitutionalism that made the Constitution of 1787 a fixed artifact of its time with unchangeable meanings, rather than a more flexible document imbued with uncertainty. In doing so, early Americans helped determine the future course of how Americans interact with and interpret their Constitution.
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In THE ANTEBELLUM ORIGINS OF THE MODERN CONSTITUTION: SLAVERY AND THE SPIRIT OF THE AMERICAN FOUNDING, Simon J. Gilhooley explores one particular aspect of the broader argument that Gienapp and other historians have made by arguing that the debates over slavery and abolition led early Americans to believe that the Constitution must be read, interpreted, and implemented within the lens of the founding era. That decision, Gilhooley argues, led to a constrained vision of constitutional interpretation that has characterized American political development to this day.
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The rise of the slavery question in the early republic became constitutionalized as proslavery and antislavery partisans sought to use the supposedly fixed meaning of the constitution—as they saw it—to support their claims. Though Gilhooley writes as a political scientist and makes an argument from that perspective, his book focuses intensely on this history of constitutionalism in the slavery debates in the early republic. He uses this historical debate to make a point about politics and constitutionalism in the modern era. American constitutionalism, according to Gilhooley, has been too wedded to the idea of historical fixity; that is, our politics has been constrained by the idea that constitutional interpretation is “tied back to a moment of origin” (p. 21). In other words, Gilhooley suggests that originalism is somewhat undemocratic because it forces the present polity to defer to past judgment. At the same time, Gilhooley does not seem to espouse the concept of a living constitution as many modern-day politicians and students of politics endorse because it, too, ties the present to a version of the past, albeit a contested one where people can balance the spirit of the founding with contemporary needs. Instead, Gilhooley calls for a “popular sovereign unmoored to a particular moment in secular time” (p. 22). How this might unfold is the subject of his conclusion.
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To make his argument, though, Gilhooley uses the history of the debates over slavery and abolition—particularly in the District of Columbia—before the Civil War. Much of this book uses historical analysis and narrative in attempting to prove its thesis. The book is built from a close reading of various newspapers and pamphlets, <a name='more'></a>as well as congressional debates from the antebellum era, all of which chronicle the slavery debate as it unfolded in Congress and in the press. In dense, carefully researched analysis of the emergence of abolitionism, Gilhooley analyzes how the slavery debate changed between the 1820s and 1830s from free people of color using the rhetoric of the Declaration of Independence to argue for the freedom of the enslaved to a circumscribed definition of who constituted the people in American politics. Free Black thought emphasized the revolutionary rhetoric of 1776, but subsequent generations muted it in an effort to preserve the constitutional compromises over slavery, and prevented the question from sundering the Union. In doing so, however, they transformed American constitutionalism into something static, unchangeable, and essentially conservative with respect to the preservation of enslavement. Gilhooley’s historical research is thorough and, in many respects, persuasive. The great compromisers of the early 19th century did save the Union for a time, but in doing so, they abandoned almost every hint of Revolutionary-era guilt over slavery and any desire to see it abolished in the future.
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Gilhooley sees the debate over slavery in the District of Columbia as a distinctly constitutional discussion, and no doubt, it did hinge on the fact that the Constitution vested authority over the federal district in Congress. However, much of the debate was political; a way for abolitionists to strike a blow against the proslavery cause through political means because of the unique nature of the district itself. By the late 1830s, the debate had led to a conservative understanding of the Constitution and constitutional interpretation that protected slavery rights via the myriad compromises negotiated since the founding. By “layering legislative compromises atop each other,” and adhering to the “virtue of moderation” that the compromisers repeatedly espoused, Gilhooley argues that compromise itself became a form of constitutional practice, and that it led to a conservative interpretation that protected slavery (p. 118).
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Gilhooley’s history is thoroughly researched and exhaustively documented. Historians of the early republic, as well as slavery and abolition, will find much of this work well argued, if familiar. The history, though, is a means for arguing his main point: that the American constitutional project is in need of a revision that prevents the past from constraining the present. In the conclusion, Gilhooley turns to Thomas Paine and Thomas Jefferson to argue for a new mode of constitutionalism that embraces Paine’s idea of an “eternal now,” in which each generation is viewed as sovereign without being encumbered by the past. Likewise, Jefferson—at least in his more radical moments—disdained the notion of a perpetually binding constitution. Gilhooley rightly notes that modern scholars have attempted to moderate Jefferson’s views in favor of a more benign revolutionary spirit. Of course, Jefferson moderated himself, and even became rather conservative in his later years, as the Missouri crisis roiled the union. The Jefferson of 1819 is dedicated to the preservation of the union and the idea of compromise. Generational sovereignty, it seems, had given way amid the advent of the politics of slavery.
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Interestingly, Gilhooley argues that although Jefferson’s “conception of the people” centered on white males who committed to preserving the union they created, we can nonetheless interpret his political theory “with an expansive conception of the people in mind” (p. 253). One has to ask though, why such a reading of the third president’s political philosophy—a “Living Jefferson” if you will, suffices and yet a “Living Constitution” is unsatisfactory.
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In the end, Gilhooley embraces Jefferson’s notion of ward republics, where popular sovereignty is exercised through what he calls “radically continuous constitutionalism” (p. 257). This does not negate the need for a written constitution, he argues, though one wonders how a written constitution fits within the framework of a perpetual reconceptualization of constitutionalism itself. If citizens are “authors continually writing and rewriting their own story,” as Gilhooley suggests, then it seems clear that a constitution must be fixed in a particular historical moment—otherwise there is no reason for recrafting it in perpetuity (p. 257). And how would perpetual constitutionalism work in practice? Would it be akin to the United Kingdom’s so-called unwritten constitution?
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One could argue that Gilhooley’s premise is based first on an argument that the American Constitution no longer represents the will of the people and that it is impossibly complicated to amend. Many scholars and citizens would agree with the latter, but the former is still very much up for debate as many people still believe that our Constitution—one of the oldest in the world—is protean enough that it operates well, or well enough. In fact, one could use the very history that Gilhooley chronicles in this book, that the United States altered its proslavery Constitution to abolish enslavement, to argue that the “Living Constitution” can indeed change over the generations.
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Whether one finds Gilhooley’s argument persuasive or not, he has undeniably produced a book that shows how modern constitutional debates have clear historical precedent. Moreover, his ability to integrate political theory and historical analysis is commendable.
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REFERENCES:<br />
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Gienapp, Jonathan. <i>The Second Creation: Fixing the American Constitution in the Founding Era</i>. Harvard University Press, 2018.<br />
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© Copyright 2023 by author, Christopher Childers.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-58993788734032031682023-05-31T15:46:00.002-04:002023-05-31T15:46:00.145-04:00CAPTIVE MARKET: ACCOUNTABILITY AND STATE PRISON PRIVATIZATION<img src= https://global.oup.com/academic/covers/pdp/9780197624142 align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 04 (May 2023) pp. 40-43
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CAPTIVE MARKET: ACCOUNTABILITY AND STATE PRISON PRIVATIZATION, by Anna Gunderson. Oxford: Oxford University Press, 2022. 208 pp. Paper $27.95. ISBN: 9780197624142. Hardcover $99.00. ISBN: 9780197624135.
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Reviewed by Heather Schoenfeld. Department of Sociology, Boston University. Email: hschoenf@bu.edu.<br />
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In CAPTIVE MARKET: ACCOUNTABILITY AND STATE PRISON PRIVATIZATION, Anna Gunderson asks a seemingly simple question: why do states use (or not use) private prisons to house people serving state prison sentences? Lay answers are easy to come by. State legislators are trying to save money. Private prison companies have good lobbyists. In some states, corrections officers’ unions have successfully fought against privatization. To this list, political scientists would add the Republican agenda to deregulate and shift state services to the private sector. Yet, because comprehensive data on private prisons doesn’t exist, the above claims have not been empirically tested. With a tremendous amount of work assembling multiple datasets, Gunderson changes social scientists’ ability to study prison privatization. CAPTIVE MARKET is a comprehensive look at trends and determinants of privatization using these new data. None of the above answers are wrong, Gunderson argues, but they are incomplete if we don’t consider how prison litigation incentivizes or disincentivizes states’ use of private prisons.
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Scholars of the U.S. carceral state generally decry the disproportionate attention to private prisons. In 2022, only 8% of federal and state prisoners were serving their sentence in a private facility (The Sentencing Project 2022). More importantly, the preoccupation with private prison companies neglects the more consequential interests of U.S. public officials and agencies in maintaining high levels of incarceration (Pfaff 2017). CAPTIVE MARKET, however, is not just a book about prison privatization. Gunderson’s analysis engages in debates over the rights revolution and the role of the courts in social change, models of state policymaking, and public accountability. In addition, it is part of a growing body of scholarship that examines the determinants of state-level policy processes and outcomes (Anzia 2019). Law and society and political science students and scholars will find it a fascinating read.
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To answer her research question, Gunderson assembled an impressive new database of private prisons by coding Security and Exchange Commission 10-K reports (annual reports that publicly traded companies are required to file with the SEC). These reports contain information about <a name='more'></a>the location of companies’ privately operated facilities, data on state/local customers, prison design capacity, and contract length. The database includes prison facilities from 1986 to 2016 and represents 85% of the private prison market (including the two big players the GEO Group and CoreCivic). In Chapter 2, Gunderson cleverly displays the data on the growth and variation in states’ private prison use in a series of state-specific graphs shaped to represent a map of U.S. states. The maps demonstrate the diffusion of private prisons from their original locations in Tennessee, Arkansas and Texas to California, Oklahoma, Colorado, and other parts of the South and Southwest. One telling pattern Gunderson finds is that states that don’t adopt prisons by the early 2000s tend to remain free of them, while states who adopt them will increasingly use them. Helpfully interspersed in the discussion of trends are quotes from policymakers, advocates, and others that Gunderson interviewed for the book.
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What accounts for the variation in the use of private prisons across states? Research on the proliferation of state prisons has found that the presence of federal court orders to remedy prison conditions are associated with state lawmakers’ decisions to build new prisons (Guetzkow and Schoon 2015). In Chapter 3, Gunderson argues that there are theoretical reasons to hypothesize that prison litigation might also impact prison privatization. Briefly, she posits that in response to the volume of prison litigation filed in the state, state officials look to shift political and legal accountability to private prisons. First, if the public tries to hold politicians responsible for poor prison conditions, politicians can blame a third party. Second, the ambiguity of private prison companies’ legal responsibilities makes it more difficult for prisoners to sue and (potentially) indemnify the state when they are successful. Merging the private prisons database with another database she assembled of federal court filings, Gunderson’s time-series analysis demonstrates that the use of private prisons in a state is positively associated with the sum of all lawsuits filed in the previous year in that state. Variables indicating alternative hypotheses are for the most part insignificant. While the relationship between the volume of lawsuits and privatization is robust (see the Appendix), the accountability-shifting theory is based on some assumptions about the policymaking process that will need to be tested. More specifically, it assumes that the public will hold politicians accountable for prison conditions. However, the “systematic failure” of prisons “to provide even minimally safe and healthy conditions of confinement” (Dolovich 2022) suggests that politicians <i>don’t face political repercussions</i> for ignoring awful prison conditions. The theory also assumes that politicians view prisoner lawsuits as a significant risk. However, since the 1996 Prisoner Litigation Reform Act (PLRA) decreased the prospect of successful prisoner litigation, lawmakers may not be concerned with legal liability either.
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Gunderson’s second theoretical proposition is that <i>successful</i> prison litigation has the opposite effect on privatization than the total volume of court filings. She argues that court orders to improve prison conditions render the use of private prisons for accountability unnecessary because “the state is held accountable for poor prison conditions within the corrections system” (p. 71). In particular, the active involvement of judges and special masters “meant the state could not shirk from its responsibilities” (p. 73), and the creation of more professionalized and bureaucratized corrections agencies safeguard compliance. Gunderson tests this hypothesis using a third database she constructed with information from the Civil Rights Litigation Clearinghouse. While the analysis does not find a statistically significant relationship between successful lawsuits in a state and the use of private prisons, it is in the hypothesized direction. The lack of statistical significance is not surprising: translating court orders into penal policy is a complex process that can occur <i>both before and after a court order</i> and is therefore not easily captured in a causal model (Schlanger 2009). Furthermore, the inclusion of both pre- and post-PLRA orders may muddy the analysis because post-PLRA court orders are more narrow and less likely to address prison overcrowding than pre-PLRA orders. It would have been helpful to read about a case where successful litigation led state leaders to opt-out of privatization. However, the court orders Gunderson uses to illustrate her point were all issued <i>prior to the advent of private prison companies</i> when state leaders didn’t have a choice to privatize (see pp. 71-73). To bolster the claim that states will reduce their use of private prisons in response to a court order, Gunderson presents the results of a third innovative analysis that shows that the announcement of a court order in a state with private prisons decreases the stock prices of private prison companies. It is a fascinating finding that could be due to investors’ understanding that a court order will be bad for the private prison business.
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While I would like to see more evidence to confirm the proposed mechanisms at play, I am convinced that prisoner lawsuits are part of the reason states use (or do not use) private prisons. Another hypothesis is that prison litigation is working indirectly through the politics of financing new prisons. Unable to meet its prison bed needs with what state lawmakers were willing to finance, officials in states that already had private prisons could increase their contracts with prison companies to solve (or appear to solve) prison problems. As Gunderson notes, states under federal court order had additional leverage to convince lawmakers and the public to fund public prisons and/or prison improvements. As a result, they did not have to contract with private prison companies at the lowest possible cost. Furthermore, it is likely the interests of multiple parties converged on the decision to contract out imprisonment. Some officials, such as state attorney generals, undoubtedly thought about the state’s legal liability, while others were motivated by an ideological commitment to privatization. Gunderson’s impressive new dataset is available at dataverse.harvard.edu (Gunderson 2020), which will allow researchers to further investigate the complexities of prison litigation, politics, and “carceral capacity” – whatever form it takes (Schoenfeld 2018).
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In the Conclusion of CAPTIVE MARKET, Gunderson returns to the normative motivation for her research. Private prison companies profit from and exacerbate human suffering. New knowledge about why some states elect to use private prisons can help reduce the use of privatization. Yet as Gunderson recognizes, privatization of punishment is here to stay, whether it takes the form of prisons, probation services, electronic monitoring, or something yet to be invented. As such, she argues that we need to recognize that the government is ultimately responsible for corrections policy. I would add that the real imperative is reducing state demand for punishment in all forms.
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REFERENCES:<br />
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Anzia, Sarah F. 2019. “Looking for Influence in All the Wrong Places: How Studying Subnational Policy Can Revive Research on Interest Groups.” THE JOURNAL OF POLITICS 81 (1): 343–51.
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Dolovich, Sharon. 2022. “The Failed Regulation and Oversight of American Prisons.” ANNUAL REVIEW OF CRIMINOLOGY 5 (1): 153–77.
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Guetzkow, Joshua, and Eric Schoon. 2015. “If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation.” LAW & SOCIETY REVIEW 49 (2): 401–32.
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Gunderson, Anna. 2020. "Replication Data for: “Why Do States Privatize their Prisons? The Unintended Consequences of Inmate Litigation,” https://doi.org/10.7910/DVN/WRHPXL, Harvard Dataverse, V2.
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Pfaff, John. 2017. LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION-AND HOW TO ACHIEVE REAL REFORM. Basic Books.
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Schlanger, Margo. 2009. “Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics.” HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 48 (1): 165–215.
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Schoenfeld, Heather. 2018. BUILDING THE PRISON STATE: RACE AND THE POLITICS OF MASS INCARCERATION. University of Chicago Press.
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The Sentencing Project. 2022. “Private Prisons in the United States.” Washington D.C.: The Sentencing Project. https://www.sentencingproject.org/app/uploads/2022/10/Private-Prisons-in-the-United-States-2.pdf.
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© Copyright 2023 by author, Heather Schoenfeld.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-29471247291832977612023-04-13T12:00:00.002-04:002023-04-13T12:00:43.795-04:00RADICAL ENFRANCHISEMENT IN THE JURY ROOM AND PUBLIC LIFE<img src= https://press.uchicago.edu/.imaging/mte/ucp/medium/dam/ucp/books/jacket/978/02/26/65/9780226654294.jpg/jcr:content/9780226654294.jpg align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 03 (March 2023) pp. 37-39<br />
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RADICAL ENFRANCHISEMENT IN THE JURY ROOM AND PUBLIC LIFE, by Sonali Chakravarti. Chicago: Chicago University Press, 2019. pp. 168. Paperback: $29. ISBN: 978-0-2266-5429-4.
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Reviewed by Anna Offit. Dedman School of Law. Southern Methodist University. Email: aoffit@smu.edu.<br />
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Whose discretion lies behind the perpetuation of racism and mass incarceration in the United States? In RADICAL ENFRANCHISEMENT IN THE JURY ROOM AND PUBLIC LIFE, Sonali Chakravarti suggests that in focusing on law enforcement officers and prosecutors, scholars have overlooked the jury as a key decision-maker in American society, and thus a meaningful object of legal reform. After all, it is often the anticipation of, and reactions to, jury verdicts that shape public discourse and popular action aimed at remedying the country’s persistent social issues. American jurors have enormous discretion, though they do not always seem to grasp that they possess the power to actually advance the ends of justice beyond the courtroom. Here lies Chakravarti’s central argument: people-as-jurors ought to be educated and encouraged to embrace their potential to engage in transformative political praxis. This “radical enfranchisement” (p.3), as she terms it, would at last see the jury live up to its full potential as a democratic actor.
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Chakravarti begins, as many jury scholars do, with Tocqueville. And yet, her treatment of his work in the book’s first chapter is novel. She questions his view of the jury as a democratic institution (p.28) by looking at places where his enthusiasm is tempered by emphasis on the critical and necessary influence that elites have on jurors (pp. 24-25). A Tocquevillian approach, she argues, would address the lingering shortcomings of democracy by discouraging the creativity and autonomy of laypeople in favor of promoting emulation of the elite. By contrast, Chakravarti argues that the solution to the failures of our politics is greater lay participation in the legal system. The key, she notes, is identifying those overlooked opportunities for laypeople to exercise the impactful forms of discretion associated with radical enfranchisement.
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Subsequent chapters locate these openings in aspects of trial procedure. The first of these, discussed in Chapter 2, is the “hung jury. According to Chakravarti, the hung jury exemplifies radical enfranchisement as a practice of dissensus rooted in reflexive deliberation. She contrasts this view with that of the “Allen Charge” an instruction that judges, in many jurisdictions, deliver to frame dissensus as a mistake or as a sign of institutional dysfunction. Drawing on Habermas’s work on communicative rationality and the “lifeworld”, Chakravarti holds that the Allen Charge is blind to the existence of “important worldview differences”, as well as the non-hierarchical relationships of jurors that might preclude agreement (pp. 42, 44). Where the Allen Charge attempts to suppress the diversity of the American public in order to effect a phony consensus among its complex segments, Chakravarti invites a rethinking of the hung jury as an expression of legitimate political resistance.
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In Chapter 3, Chakravarti turns to the standard of reasonable doubt. She points out that there is a significant paradox here: the same local knowledge that equips laypeople to accurately and sensitively assess evidence and the character of the accused can lead them to be disqualified for bias (pp. 64-65). Once more, the book’s prescription is a heavy dose of reflexivity. As she puts it, people should draw upon “common sense or the benefits of life experience for making judgments about character, motivation, and guilt” while nevertheless “conced[ing] that additional scrutiny is necessary and that the trial provides concrete opportunities to do so” (p. 69). Further, we must come to accept that jury service is a site of learning—jurors can learn to adopt novel approaches to trial evidence. Here, again, Chakravarti locates an opening for jurors to take greater ownership over the conditions of their deliberation and the power of their decision-making.
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At times, that power will lead to verdicts that run counter to the evidence but align with jurors’ shared intuitions about justice. Some Americans may balk at this idea. After all, the general rule we find in criminal law casebooks today holds that while questions of fact are the exclusive province of the jury, matters of law are left to the judge. As a result, while juries have the power to nullify the law, many legal actors that they are not entitled to do so.
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In Chapter 4, Chakravarti argues that an approach to the nullification issue rooted in radical enfranchisement would see American courts give jurors three options when rendering their verdicts in criminal cases: guilty, not guilty, and nullify. The “nullify” option, in her view, could be explained to jurors as something that should only be exercised in cases where a guilty verdict would be repugnant to their sense of justice. It would have various functions: it would be a counterweight to the discretion exercised by prosecutors in deciding what charges to bring; it would remove the leverage from prosecutors who might otherwise be in a position to pressure defendants into accepting guilty pleas; it would send a message about the extent to which the law has fallen out of alignment with common sense intuitions about justice; it would be a remedy to systemic biases.
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This would be radical enfranchisement in action. So, what stands in its way? On the one hand, Chakravarti suggests that a particular form of civic education is essential before this praxis becomes a feature of our politics. As part of this education, jurors must be made aware of both forms of, and rationales, behind criminal punishment (p. 12)— as well as non-carceral alternatives. Yet in practice, and with few exceptions, jurors in America do not have a say in “questions of punishment and sentencing” (p. 11). According to Chakravarti, this must change since she envisions a legal system in which jurors collectively determine “what constitutes fair punishment and whether imprisonment is appropriate” (p. 19). In the book’s final chapter, she even proposes that jurors’ involvement in sentencing might extend beyond capital cases, such as when the jury petitioned the court for a lenient sentence in rendering a guilty verdict for an Occupy Wall Street activist.
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But educating jurors is not the only obstacle to radical enfranchisement. There is, for instance, the systematic misleading of grand jurors who are taught to believe that a petit jury will more carefully scrutinize the evidence they consider when deciding on an indictment. There is also the problem of jurors’ ignorance of the stakes of even minor criminal convictions, as well as the problem of those who understand that power all too well, engaging in activism against mass incarceration and racism only to find that this can be grounds for their excusal. There is also the issue of how the bias and prejudice of jurors—if left unexamined and unquestioned—might exacerbate injustice. This can happen when juries nullify in prosecutions of rape defendants because they find the defendant is unsympathetic, or that the victims do not conform to gender stereotypes. In short, there is plenty that can stand in the way of radical enfranchisement.
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The realization of Chakravarti’s vision must also contend with the fact that remaking jury service as a site of transformative political praxis hinges on the actual occurrence of jury trials. In recent decades, however, we have seen—especially at the federal level—a general reluctance to allow cases to find their way to a jury, resulting in an overall decline in the number of jury trials. With the pressure prosecutors face to negotiate plea bargains, it is unlikely this trend will be reversed unless criminal defendants assert their vital right to trials by jury. Moreover, if such involvement becomes possible at scale, it will be necessary to address problems of social inequality that influence which individuals can report to court for jury service. The COVID-19 pandemic offers a glimpse of how advances in technology—including fully or partially remote trial proceedings—might encourage the participation of those who wish to fulfill their civic duty but face physical or material obstacles. These and other lingering questions may leave readers eager for reform on a broader scale.
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And yet, RADICAL ENFRANCHISEMENT is a timely, engaging, and powerfully-argued book. It should be read by legal scholars, judges, lawyers, and, most importantly, the public. After all, if radical enfranchisement begins with awareness of the true power that juries have, then this ambitious and accessible work undoubtedly has a part to play in showing people that as jurors, they contribute in a fundamental way to the vitality of our democracy.
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REFERENCES:<br />
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Breyer, Charles R., Patricia K. Cushwa, and Jonathan J. Wroblewski. 2021. 2021 ANNUAL REPORT AND SOURCEBOOK OF FEDERAL SENTENCING STATISTICS. United States Sentencing Commission.
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© Copyright 2023 by author, Anna Offit.<br />
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<!--more-->Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-45022417212131592602023-04-13T12:00:00.001-04:002023-04-13T12:00:17.151-04:00DILEMMAS OF FREE EXPRESSION<img src= https://toronto-university-distribution-ca.imgix.net/covers/9781487529307.jpg?auto=format&w=260&dpr=2&q=20 align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 03 (March 2023) pp. 32-36<br />
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DILEMMAS OF FREE EXPRESSION, by Emmett Macfarlane, ed. Toronto: University of Toronto Press. pp.322. Paper: $39.95. ISBN: 978-1-4875-2930-7.<br />
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Reviewed by Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.
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In DILEMMAS OF FREE EXPRESSION, Emmett Macfarlane has assembled a superior collection of essays from scholars at Canadian universities which includes timely contributions to the burgeoning literature on challenges facing traditional understandings of fundamental rights in the 21st century. In regards to freedom of speech and expression, advances in technology that have led to the democratization of access to information and the capacity to generate it forces scholars and practitioners to revisit century and centuries-old notions of freedom and rights.
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In the space of a single review essay, it is not possible to do justice to the fifteen essays that comprise this collection. I, therefore, divide them into two broad categories. First, I address those that set and define the 21st-century context for discussing free expression. These essays address the democratizing impact of technology on expression, the corresponding “cheapening” of speech that has resulted, and the costs that this democratization has produced. The second group addresses enduring themes of power, epistemology, and control over narrative. These essays demonstrate that while technology has altered the marketplace of ideas, it has done so in a manner that simply amplifies the enduring issues discussed in these chapters. <br />
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What drives the analyses and discussion in DILEMMAS is the “cheapening” of speech spawned by technology and, in particular, social media noted by Eugene Volokh (2021) and Rick HASEN’S CHEAP SPEECH (2022). On one hand, media consolidation has only enhanced the gatekeeping power of traditional media and platforms such as Facebook and Twitter. On the other hand, the proliferation of web access enables countless, anonymous actors to purvey information (however false or damaging) with virtual impunity. The great challenge for scholars and practitioners is how to manage this new landscape of expression.
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In the introduction, Macfarlane notes that, “what is needed are forward-looking appraisals of ways to confront challenging moral issues, policy problems and controversies that pay heed to the fundamental right to free expression” (p.8). Richard Moon follows in “Does Freedom of Expression Have a Future?” with a similar statement about free speech’s fundamentalism: “ A commitment to free speech (or expression) means protecting speech regardless of its truth or falsity and allowing its audience to make their own judgment about its merits” (p.15). But, he quickly qualifies this by acknowledging that such an approach to free speech requires that individuals have access to different opinions, reliable information. and that they have the capacity to make “reasoned and independent judgments” (Ibid.) <a name='more'></a>
Alas, the proliferation of fake news, deep fakes, and so forth now undermines the certainty with which one can rely on these assumptions. This is made clear in Crandall and Lawlor’s discussion of the threats posed to electoral integrity by false news in “FREEDOM OF EXPRESSION IN AN AGE OF DISINFORMATION: CHARTER CONSIDERATIONS FOR REGULATING POLITICAL SPEECH IN CANADIAN ELECTIONS”. The case of election integrity offers a useful case-study for justifying at least some oversight and control of speech. To the extent that speech is instrumental to the integrity of the electoral process, the capacity of voters to make informed decisions, and the capacity of the government to govern, it is clear that the government has a compelling interest in ensuring that voters are informed accurately. But, how do we establish a benevolent government censor without creating the specter of an Orwellian gatekeeper to information?
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At the heart of the collection lies the specter of the failure of the “marketplace of ideas” to serve the common good and the ends to which freedom of expression is aimed. The free exchange of ideas makes sense in theory, and is grounded on the assumption that this exchange will generate “truth” (or, at least, its close approximation) ostensibly to inform the public, enhance democracy, and instruct governors. But, that marketplace now generates deep fakes, revenge porn, and hate speech. As Moon notes, in an era of the centripetal force of media consolidation, the centrifugal force of social media proliferation is no longer adequate or realistic to assume that one can simply “respond in kind” to defend one’s privacy, reputation, or to rebut an idea (pp.22-29). Yet, proposed cures to this market failure may be worse than the pestilence it causes.
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In HATE SPEECH, HARM, AND RIGHTS, Macfarlane discusses the difficulty in accurately measuring the harm caused by hate speech. Since that harm affects large numbers of people in many different ways it is correspondingly unclear that laws restricting hate speech will have their intended effects. This is made clear by Cameron in his account of the failures and pitfalls of prior restraint in PROCESS MATTERS: POSTAL CENSORSHIP, YOUR WARD NEWS, AND SECTION 2(B) OF THE CHARTER. Macfarlane is not a nihilist. He acknowledges that, “we should not end on an argument that leaves the targets of hate speech to simply absorb its negative effects” (p.50). Instead, he calls for broader measures to address the systemic basis for inequality and hatred (p.51). This clearly would avoid the threat of censorship. But, one wonders how much damage the victims of viral speech would have to suffer while waiting for such social engineering measures to take effect.
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Carissima Mathen addresses the scope and breadth of any such measures in REGULATING EXPRESSION ON SOCIAL MEDIA. Due to the spread and impact of social media, “previously sacred principles [such as freedom of expression] can appear to be out of step” in the 21st century” (p.91). She thoughtfully describes what is, essentially, a no-win situation. On one hand, she fears a shift to social media regulation which would capture far more expression than existing criminal laws. Additionally, she notes that shifting responsibility for online speech regulation to the platforms themselves would simply privatize speech regulation while submitting it to the inherently risk-averse mindset of businesses. In the end, Mathen calls upon the state to take more control and responsibility for managing the marketplace of ideas. However, one could be left wondering how much power the government would need to acquire in order to take on the vast realms of cyberspace, the power of platforms, and the anonymity of individual actors.
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The remaining chapters address enduring debates about the scope and definition of speech rights. A key theme throughout several of these essays is the evolution of the form of speech controversies. In POSITIVE RIGHTS, NEGATIVE FREEDOMS, AND THE MARGINS OF EXPRESSIVE FREEDOM Benjamin Oliphant thoughtfully demonstrates the limits to thinking about speech freedom as a negative right against government restraint. Controversies take on a multitude of forms, many of which require governmental intervention as referee among private actors--not as a censor of or threat to particular dissenters. The implications of his analysis are manifested in several other chapters. In chapter 6, Cara Faith Zwibel discusses the complexity of the interaction between the rights to protest and counter-protest. She casts her discussion in terms of Bracken v. Fort Erie, in which an Ontario Appeals Court overruled a lower court decision that had declared a protest outside of a city hall was not protected under section 2(b) of the Charter.
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In so doing, the Ontario Appeals Court asserted an important, instructive distinction that ties back to Mathen’s observation that “concepts like harm, safety, and violence have taken on ever-expanding meanings” (p.101) as well asMacfarlane’s assertions about the indeterminacy of harm. The court stated: “Violence is not the mere absence of civility…. A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b)” (p.115).
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Zwibel draws upon this decision to note that while there is no right not to hear things one does not want to hear, one does have the right not to listen: “Just as the Charter protects the right to speak and choose not to speak, it also protects the right to listen and not to listen” (p.117). This leads to an important review of the right of hecklers to shut down speakers they don’t like, the responsibility of the state to enable speakers to speak, and the right of others to seek refuge--where they have a reasonable expectation of privacy—from any speech or other noise. Zwibel’s elegant demonstration of complexity amongst this clash of rights is echoed in several other essays.
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This analysis animates the discussion of deplatforming in chapter 10, Christopher Bennett’s DENIAL, DEPLATFORMING, AND DEMOCRACY: THINKING ABOUT CLIMATE CHANGE IN THE AGE OF SOCIAL MEDIA,and Dax D’Orazo’s DEPLATFORMING IN THEORY AND PRACTICE: THE ANN COULTER DEBACLE discussed in chapter 15. The advent of social media has only exacerbated the challenge of determining what is or should be regarded as the “truth” (about climate change, political protest, etc.). The capacity of social media to enable speakers to cause instantaneous, devastating damage to others now complicates deciding when and whether the cost of silencing speech is worse than allowing it (since banning controversial speakers can actually amplify their status and influence). Finally, social media’s power and pervasiveness now make it necessary to consider how or whether to address the harms caused to people who are unable to seek refuge from internet speech in the same way they can retreat from the terrestrial “marketplace of ideas” by going home.
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What is or should be regarded as truth or speech worth hearing arises in Chouinard and Richez’s THE TENSION BETWEEN FREEDOM OF EXPRESSION AND LANGUAGE RIGHTS IN CANADA: THE FORD AND DEVINE LEGACY AFTER THIRTY YEARS and David Newhouse’s TEIAKWAHANSTAHSONTEHRHA–WE EXTEND THE RAFTERS. When courts are asked to balance competing language rights, or when they are asked to incorporate nontraditional knowledge into university curricula, they are confronted with battles that are more epistemological than legal in nature. There is no doubt, as these two chapters demonstrate, that prevailing epistemological and legal norms are dictated by whoever controls the reins of political power. Language dictates meaning, and therefore, is a tool of power. Nonetheless, clashes such as these demonstrate the limits of courts and law to resolve such conflicts. At best, one can only hope to manage them regardless of whether they take place in cyberspace, on campus, or in battles about the language of local signage or law itself.
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The matter of power and control is manifested in discussions of compelled speech, or speech that is silenced. Sirota’s discussion of what constitutes government-compelled speech in COMPELLED SPEECH: A CONSCIENCE–AND INTEGRITY–BASED APPROACH demonstrates the nuanced difference between speech that is truly compelled and “speech” that can be regarded as any compliance with government rules . The difference is key and is clear in Sheldrick’s discussion of Ontario’s passage of the Protection of Public Participation Act against the use of strategic lawsuits against public participation (“SLAPPs”) in which better-financed groups can use litigation to tie up the funds of their opponents and, in so doing, silence or mute them. Whether the government itself operates with blinders imposed by its epistemological vision, or whether the government enables some to restrict the speech of others, those who are silenced (or perhaps forced to speak) all experience the same sense of powerlessness.
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The chapters dealing with speech in the university offer a useful opportunity to conclude this review. In chapter 13, Jaffrey Sachs discusses FACULTY FREE SPEECH IN CANADA. In chapter 14, Shannon Dea discusses STUDENT REFRAINMENT FROM SPEECH. Both authors indicate that there really is only thin evidence suggesting that faculty and students are suffering from imposed censorship. Both authors distinguish Canadian universities from the more viral environment in United States institutions of higher education. Sachs argues that there is greater trust in Canadian universities than in their American counterparts. In addition, Canada’s approach to faculty protection through employment law (p.244) as opposed to speech law tends to defuse matters of faculty speech in a way that is not possible in the United States. Dea contends that the American higher education environment is poisoned by groups such as the Foundation for Individual Rights in Education that render “overblown”, exaggerated conclusions about threats to campus speech in the United States.
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The great frustration of reviewing any collection of essays lies in striking a balance between giving each essay its due and offering a meaningful overview that does not become a restatement of each. DILEMMAS offers a thought-provoking overview of the breadth and complexity of free expression in a 21st century environment that is supercharged by social media and cyberspace. Yet, it does so by grounding that overview with deep dives into particular, enduring issues of power and control that have animated the discussion of speech rights for centuries. Macfarlane and his colleagues will cause the reader to make numerous marginal notes, seek out sources in the bibliography, and think a lot about how the new frontiers of technology have amplified traditional controversies of free expression.
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REFERENCES:<br />
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Hasen Rick. 2021. CHEAP SPEECH: HOW DISINFORMATION POISONS OUR POLITICS—AND HOW TO CURE IT. New Haven: Yale University Press. <br />
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Volokh, Eugene. 2021. “What Cheap Speech has Done: (Greater) Equality and its Discontents.” UC DAVIS LAW REVIEW 54 (3): 2305-2340.
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© Copyright 2023 by author, Mark Rush.<br />
<br />Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-4071913741448928792023-04-13T12:00:00.000-04:002023-04-13T12:00:03.554-04:00A RIGHT TO LIE? PRESIDENTS, OTHER LIARS, AND THE FIRST AMENDMENT<img src=https://m.media-amazon.com/images/I/4156IR6zB+L._SX346_BO1,204,203,200_.jpg align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 03 (March 2023) pp. 28-31<br />
<br />
A RIGHT TO LIE? PRESIDENTS, OTHER LIARS, AND THE FIRST AMENDMENT, by Catherine J. Ross. Philadelphia: University of Pennsylvania Press, 2021. pp.173. Hardcover: $24.95. ISBN: 9-780-8122-5325-2. eBook $24.95. ISBN: 9-780-8122-9973-1. <br />
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Reviewed by Jake S. Truscott. Department of Political Science. The University of Georgia. Email: jake.truscott@uga.edu. <br />
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The Constitution provides a framework to protect the republic from would-be despots occupying the White House. Articles II explicitly grants Congress the power to impeach presidents as a result of them engaging in “Treason, Bribery, or other high Crimes and Misdemeanors” (p. 127). Yet, this raises an important set of questions – Are presidential lies protected speech? If not, do willful lies, regardless of their intent or ramifications, fall under the distinction of an impeachable high crime or misdemeanor? These questions are at the heart of Catherine J. Ross’s book A RIGHT TO LIE? PRESIDENTS, OTHER LIARS, AND THE FIRST AMENDMENT. <br />
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The controversial presidency of Donald J. Trump, and more directly the man himself, serves as the primary motivation for this work – and the author makes little attempts to hide it. While they note that “this book is not just about Trump, and it is not just about presidents” (p. 1), most sections return to a discussion of the former president. Then again, this frame is not without merit. The Trump presidency serves as perhaps the most indicative example of how lies from those in positions of power can erode the public trust and potentially put lives at risk. From everyday fabrications and slanders that eventually became too excessive for fact-checkers to maintain an up-to-date tally (p. 68), to sufficiently more egregious lies told to dissuade the public from appreciating the seriousness of the COVID-19 pandemic, Ross draws from Trump’s habitual lying to demand that we need to hold executives accountable for willful deceits.
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Their approach is a structured analysis of the Constitution, the relevant case law, federal statutes, and, of course, the motivations of the framers in creating institutional protections against executives engaging in criminal behaviors, or more broadly, threatening the republic. All of this serves to support their contention that "truth is essential to democracy, while lies subvert it like ivy vines that cause the mortar to crumble" (p. 150). According to Ross, no simple solution exists to hold presidents accountable for obvious deceits, though there are institutional structures and legal precedents that could be tailored to do so.
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Chapter 1 sets the narrative by introducing the presidency of Donald Trump to hook readers into the gravity of executives willfully circumventing the truth. They subsequently use this as a framework to discuss and define lies in the context of the American legal tradition. Chapter 2 dives directly into the caselaw with UNITED STATES V. ALVAREZ (2012) to illustrate the complexity of the first amendment's deference to intentional factual falsehoods, or "bald-faced" lies. The case, which questioned the constitutionality of the Stolen Valor Act, ultimately provided legal protections for lies and liars. Although it is not mentioned directly, the author frames the corresponding facts and the decision in a way that harkens to SNYDER V. PHELPS (2011), a decision that protected the first amendment rights of the Westboro Baptist Church to protest the funerals of fallen servicemen, regardless of how offensive or outrageous the display was. Ross notes that “the annals of First Amendment jurisprudence are replete with unsympathetic, disagreeable, and even vicious litigants whose free speech claims prevailed” (p. 20). This is the context that frames the splintered ALVAREZ decision. While Xavier Alvarez blatantly misrepresented his status as a military veteran, even claiming to have been awarded the Congressional Medal of Honor, his lies neither garnered personal benefits, nor ostensibly harmed anyone else. The Court’s plurality opinion would effectively strike down the Stolen Valor Act as a violation of the first amendment, insofar as the law granted Congress the power to regulate lies about military service and accolades beyond those in “‘contexts where such lies are most likely to cause harm’” (p. 37). While Congress would eventually amend the Stolen Valor Act to meet the Court’s narrowly tailored standards, Ross masterfully employs ALVAREZ as a means to relay that the legal standards protecting factual falsehoods are difficult to parse, and are prone to competing interpretations of separating inconsequential falsehoods from demonstrative and malevolent lies.
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Chapter 3 moves to the Birtherism conspiracy, and again, focuses on Trump and his allies as perhaps the most pivotal voices in the room. The controversy is used as a primer to introduce readers to related concerns arising from defamation suits and why it is often difficult for plaintiffs to prevail, especially when the plaintiffs themselves are being lampooned for spreading false conspiracies. Chapter 4 moves into the political arena and focuses on the difficulty of regulating lies in political campaigns, including what the author artfully describes as “the modern equivalent of an Old West gunfight” (p. 15) between justices of the Wisconsin Supreme Court following a controversial sequence of events emanating from false and misleading statements during a statewide judicial election.
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Chapter 5 returns to Trump and explicitly focuses on the former president’s persistent rhetoric relating to the COVID-19 pandemic. Here, we find an interesting dichotomy that serves as the basis of the author’s distinction between the lies we might expect presidents to employ as a means to protect national security and prevent widespread panic from those aimed directly at deception. The analysis hinges on the Court’s reasoning in ALVAREZ that “something more than a lie is required” (p. 91) to move beyond the protections of the First Amendment. Trump’s something more, as Ross argues, falls explicitly with the reality that “he knew he was lying,” and the “wake of devastation [is] attributable in large part to [his] falsehoods” (p. 90-91). While we might wish for presidents to be infallible, they are not immune from ignorance. Yet, the problem wasn’t that Trump was relaying false information. Anyone can provide a position without full exposure to the facts. Instead, it was that Trump knew he was relaying factually false information, and the repetition of those lies motivated a substantial population to dismiss a very real threat to public health.
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With a concrete understanding that lies can instigate real consequences, Chapter 6 moves towards the means to hold presidents accountable for their deceptions by arguing that they should effectively be treated as public employees. First amendment protections in the workplace operate under different regimes concerning private versus public employees (p. 112). Ross argues that amidst the complex history of case law, the government can restrict speech and retaliate against government employees if their expressions were made “pursuant to professional duties” (p. 114). It is from this framework that Ross begins to question whether the president’s speech meets the same standard. Through a systematic combination of hypotheticals and real-world examples, they contend that “there is almost nothing a president could address during his or her term in office that can be disconnected from the Executive Office of the President. By its very nature, the presidency is a year-round, 24/7 job” (p. 119). In short, practically anything Trump said, including in his posts to official POTUS social media accounts that the DOJ “told federal courts were ‘official statements’ of the president and government policy” (p. 119), is considered the position of the President of the United States, not Donald Trump as a private citizen. From this, Ross argues that there is "no apparent analytical justification [that] mandates exempting presidents from the legal constraints that apply to other public servants who perform executive functions" (p. 119).
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Finally, Chapter 7 serves two concurrent purposes. First, for those who still might not be convinced that presidents can be held accountable for relaying unjustifiable falsehoods, Ross draws on the intent of the framers and the recent history of impeachment proceedings. Namely, they incorporate the scholarships of Charles Black and Michael Gerhart to posit that “the original rationale for impeachment was a rather quaint yet inspiring notion of holding officials to high standards of integrity and probity in their public life,” and that “abuses against the state are impeachable because they subvert the ‘public trust’” (p. 128). In essence, the contextual substance of “high Crimes and Misdemeanors” was not intended to relay objective criminal behaviors like the passage’s preceding treason and bribery. Rather, impeachment was meant to serve as a mechanism to protect against instances where the offending president loses public trust through deceitful or criminal acts. The impeachment of Bill Clinton, and to a lesser extent, the threat of impeachment levied against Richard Nixon, were not just premised on the fact that they had engaged in behaviors unbecoming of the office, but also that they had purposefully lied about it.
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The second purpose of Chapter 7 is to provide a multi-stage framework for Congress to take the reins of holding presidents accountable. Assuming that the preceding discussions hold legal weight,which they surely appear to do so, Ross prescribes that Congress should create laws or pass resolutions to establish a framework outlining what constitutes egregious and unlawful lies. At the very least, it would serve as a signal that legislators recognize the weight of the president’s speech and its capacity to be abused. In violation of this hypothetical law, Congress must be willing to act – either by Congressional censure or, if the lie is especially egregious and unbecoming, move to impeachment using the rationale outlined earlier in the chapter.
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All in all, I find the author’s argument to be calculated and well-reasoned. There is no question that Ross has done their due diligence and masterfully provided a framework to address a concern that has been exacerbated by recent presidencies. My only critique, which is by no means the fault of the author, is that these common sense remedies are difficult to conceive in the contemporary political climate. To assume a bipartisan movement toward constraining presidential lies, especially considering that the underlying motivations would almost definitely center on Donald Trump, is likely too much to expect from the rampant tribalism in Congress. Even assuming that legislators would be willing to pass such a law or resolution threatening censure, it must be expected that the president is fearful of these threats. I find it hard to believe that any president in the modern climate would be like Martin Sheen’s Jed Bartlett, an executive who both recognizes and appreciates the gravity of a Congressional censure in response to not being forthcoming about something that could impact their role as chief executive. Impeachment proceedings, as the presidency of Donald Trump has taught us, are plagued by similar concerns. Even as Republican Senate Leader Mitch McConnell agreed that Trump provoked the mob that stormed the capitol building on January 6, 2021, 43 Republican Senators voted to acquit – including McConnell himself (p. 143). To Ross’s credit, they routinely touch on these concerns. If anything, their framework and rationale serve as a call for Congressmen to restore the virtues of common sense.
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It seems unlikely to expect legislators to act against the leader of their party in the White House, no matter the ramifications of their behaviors, which is a shame. The author’s framework is a masterful one, and I wish that scholars and legislators would take their positions to mind. As Ross infers, the framers recognized that the health of the republic cannot be stymied by rogue executives engaging in behaviors unbecoming of the office. Unfortunately, these behaviors are now a part of the discourse because Congress and the courts have failed to act. This book provides an excellent set of remedies to get them started.
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REFERENCES:<br />
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SNYDER V. PHELPS, 562 U.S. 443 (2011).<br />
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UNITED STATES V. ALVAREZ, 567 U.S. 709 (2012).
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© Copyright 2023 by author, Jake S. Truscott.<br />Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-66114132325819952582023-03-02T13:58:00.001-05:002023-03-02T13:58:09.898-05:00CONSTITUTIONAL REVOLUTION<img src= https://yale-press-us.imgix.net/covers/9780300231021.jpg?auto=format&w=298&dpr=2&q=100 align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 02 (February 2023) pp. 24-27<br />
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CONSTITUTIONAL REVOLUTION, by Gary Jeffrey Jacobsohn and Yaniv Roznai. New Haven and London: Yale University Press, 2020. pp. 384. Hardcover: $65.00. ISBN 978-0-300-23102-1. <br />
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Reviewed by András Sajó. Department of Legal Studies. Central European University PU. Email: Sajoand@ceu.edu<br />
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This book is a felicitous combination of two research interests: Gary Jacobsohn is famous for developing one of the most well known theories of constitutional identity, while Yaniv Roznai is rightly appreciated for his original monograph on (unconstitutional) constitutional amendments. They “understand identity as an interactive process whereby a constitution, much like a person, develops its distinctive character or individuality through engagement with its environment, within the broader context of its being” (p. 125). They agree with the philosopher Charles Taylor’s insight, “[M]y own identity crucially depends on my dialogical relation with others” (p. 125). This dialogical approach is central to the book: the issue is who participates in the dialogue.
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The authors are not only interested in how far amendment enables the maintenance or furthers the development of constitutional identity, but also in its fundamental replacement in the form of constitutional revolution. In their account, “a constitutional revolution can be said to exist when we are confronted with a paradigmatic displacement, however achieved, in the conceptual prism through which constitutionalism is experienced in a given polity. In some cases, this achievement unfolds incrementally and without the benefit of the sort of dramatic rupture and follow-up usually associated with generic revolutionary activity” (p. 237).
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Continuity of the constitutional system is a fundamental question of legitimacy. This classic legal position was presented by Hans Kelsen about one hundred years ago. The great Austrian legal theorist was of the view that legal revolution means the amendment (creation) of the constitution in a process that disregards the rules of amendment (revision, new constitution making) of the constitution in force. The authors recognize the merit of the formalistic position, but their fundamental thesis is that a constitutional revolution can be a substantive, long-term development that has its own legitimacy. Thereby, the authors oppose a very influential tenet in constitutional theory: Bruce Ackerman’s constitutional moment paradigm (and in certain respects Hannah Arendt’s views too). Their theoretical position is supported by a number of case studies that are offered in support of their theory. Some of these are relatively short, namely on the United States, South Africa, Ireland, and Japan, while separate chapters are dedicated to Hungary, Germany, India, and Israel. Hungary offers two formally legitimate (therefore formally not revolutionary) revolutionary constitutions. First, they moved from communist non-constitutionalism to a constitutional system via the amendments in 1989-1990, and, twenty years later, once again in a formally legitimate way, in accordance with the (poorly drafted) constitution in force. This second time the new Fundamental Law moved away from constitutionalism, creating an illiberal constitutional revolution. In Germany, the making of the Basic Law in 1949 was a one time event that offered a stable identity. The constitutional judiciary considered its task to sustain the results of the revolution. The authors’ critical remarks refer to the lack of flexible development, especially in matters of European integration. As to India, the record of Constituent Assembly remains contested, but the authors seem to endorse the view that the judiciary (relying on the doctrine of unamendability of the basic structure of the Indian Constitution) carried out the promises of a constitutional revolution with respect to equality. Finally, the Israeli model represents substantive constitutional revolution without formal constitution-making. In the Israeli case, the Basic Laws, which can be seen as chapters of a constitution in the making, did not, without radical judicial constitutionalisation, possess the supremacy and entrenchment ordinarily needed for a constitution. In addition, the enactment in the Knesset occurred without a constitution-making mandate.
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The country studies rely on the extended analysis of a few judgments in light of the literature. This method is certainly adequate when presenting models of constitutional revolution, but this comes at a price. <a name='more'></a>In the case of Germany, the relevant chapter deals primarily with the Lisbon judgment (the ratification of the Lisbon EU Treaty of 2009, which allegedly transferred powers of the German Parliament, though the Constitutional Court in the end ruled that the constitutional identity was not violated). In the case of India, they presented two judgments where the transformative constitution was based on constitutional identity, while a third case on the unconstitutionality of the sodomy law was discussed separately. However, many of the transformative attempts were unrelated (see OLGA TELLIS & ORS V. BOMBAY MUNICIPAL CORPORATION (1985) with reference to the Preface, international human rights law, right to life, dignity, but not to basic structure), and the basic structure doctrine, as its origins in <i>Kesavananda</i> indicate, can be as conservative of an imagined identity as in Germany.
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The authors emphasize that the substantive, <i>longue durée</i>, incremental constitutional revolutions are primarily the result of judicial activity, even activism. While they refer to other constitutional actors in this process, they are primarily interested in the legitimacy (and to a lesser extent efficacy) of such judicial activities. The utmost example is Israel, where their Constitution is presented as a more or less purely judicial creation, and consequently, a matter of continued political contestation and professional criticism. In Israel, similar to Hungary, constitutions were enacted by legislation without the participation of the society. In the case of the 1989-90 Hungarian constitution, the Constitutional Court embarked in a continued liberal judicial revolution, which was described by the first President of the Hungarian Constitutional Court as a rule of law revolution. Arguably, this formalistic approach was intended to limit the revolutionary fervor of the anticommunists. In reality, the defense of a formal concept of the rule of law resulted in a rule that has incapacitated the Court to declare substantively anti-constitutional amendments unconstitutional several times. This was the legal reason, or perhaps a pretext for not applying the concept of unconstitutional constitutional amendment at the time the counter-revolution occurred.
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However, according to the authors, it was the lack of public participation between 1989 and 2010 and the elite nature of the Hungarian Constitution that enabled the 2011 counter-revolution. For similar reasons, the Israeli constitutionalisation seems not to have obtained a stable, legally and politically irreversible status. On the other hand, the new Indian constitutional identity is presented as more popularly endorsed. This remains a contested position, given that the secular identity seems to conflict with the deeply religious (and therefore anti-egalitarian) identity of Indian society. It is not out of the question that the Supreme Court will lend support to a tacit constitutional counter-revolution by endorsing anti-constitutional legislation, as it was the case for money bills.
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The theoretical and practical implications of the judicial constitutional revolution concept become clear in Chapter 7 (Constitutional Revolution and Constituent Power). The classic theory, as developed by Sieyès for the needs of the French Revolution, claims that the constituent power pertains to the people. One version of the constituent power theory relates this popular power to social-political revolutions, while others claim that the power continues to belong to the people, even after the revolutionary constitution-making. The people are very often only a point of reference. Sociologically, the Constitution is a purely elite construction, as in the case of Germany, arguably with ex post popular endorsement or acquiescence without enthusiasm. Habits and conventions have their own, often supreme, legitimating power, resulting in constitutional resilience, especially where a homogeneous elite supports the idea and principles of the constitution.
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The authors offer criticism to the exclusive popular constituent power thesis. The constitutional reality, as demonstrated in the country studies, does not support this one-sided, normatively loaded position. The people remain a chimera and an uncertain theoretical concept. As the facts prove, the judiciary can be the primary source of substantive constitution-making. (It is, perhaps, for a different book, and certainly for a different methodology, to analyze the social and intellectual conditions and dynamics which enable/constrain such judicial developments.)
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The authors consider judicial constituent power legitimate (perhaps even in the legal sense, though this book is primarily one of constitutional theory). At the same time, they imply some normative criteria for the validity of such activities, namely faithfulness to constitutional identity understood as a set of principles. Of course, the debate on constituent power will continue, but the authors have the advantage of offering a description that is richer than what is generally taken into consideration in the endless and sterile constituent power/judicial activism debates.
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The crucial novelty of the book lies in the application of a perspective of <i>constitutional disharmony</i>: “[D]isharmonies of constitutional politics ensure that a nation’s constitution will over time come to mean quite different things” (p. 21). The empirical reality of constitutions is that these are seldom finished works, even if in some instances there are institutional and intellectual guarantees of a relatively fixed path. Not only do inevitable constitutional-political compromises result in uncertainties, deliberate gaps, and gag rules, but the text itself contains alternatives because the constitution-makers and the society are divided. This is clearly demonstrated in the case of Israel: Jewish and democratic versus simply Jewish. It is not clear to what extent disharmony is a general feature, and it seems that, in some instances, constitutions are written with one group having a clear upper hand. But, there are constitutional systems with fundamental identity tensions (see the original US dilemma regarding slavery), or such tension emerges from time to time (see the Germans and other EU member states facing sudden social heterogeneity because of the EU and because of mass migration). The authors demonstrate that <i>longue durée</i> judicial constitutional revolutions handle or unfold this disharmony. The life of the constitution is not only adaptation within path dependence, but also a creative process dynamically sustaining identity within change.
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Constitutional change follows different models and it depends on the changing circumstances of constitutional actors who have different power and self-understanding in different constitutional systems. Based on this non-dogmatic observation, the authors were able to provide a flexible and realistic frame: “Thus, it is disputable that an identity—in this case, the German constitutional identity—once discovered, simply is what it is and must be preserved as such. It develops over time, which is to say, it is not an entity inhabiting a constitutional text, there to be found and maintained as is by those to whom it applies. In adopting the latter position on constitutional identity, specifically in relation to the German predicament, we do not wish to understate the risks associated with the presumption of mutability. … [A]n evolving identity is one that could culminate in revolutionary transformation” (p. 106).
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CASES:<br />
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OLGA TELLIS & ORS V. BOMBAY MUNICIPAL CORPORATION, 1985 SCR Supl. (2) 51.
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© Copyright 2023 by author, András Sajó.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-63082288071031195042023-03-02T13:58:00.000-05:002023-03-02T13:58:03.468-05:00CONVICT CRIMINOLOGY FOR THE FUTURE<img src= https://images.routledge.com/common/jackets/crclarge/978036786/9780367860158.jpg align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 02 (February 2023) pp. 20-23<br />
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CONVICT CRIMINOLOGY FOR THE FUTURE, by Jeffrey Ian Ross & Francesca Vianello (eds.). Oxon and New York, 2021. pp.217. ISBN 978- 0-367-86015-8. <br />
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Reviewed by Danica Darley. Department of Sociological Studies. The University of Sheffield. Email: djmdarley1@sheffield.ac.uk. <br />
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Contributions to the book CONVICT CRIMINOLOGY FOR THE FUTURE come from both the editors and others who identify with the convict criminologist movement. The contributors come from across the globe, bringing together a diverse range of perspectives on convict criminology for the first time, who offer their hopes for the advancement of this important aspect of criminological research. As a convict criminologist from the U.K. I found this book to be interesting, but challenging at points. Overall, it makes a cohesive and important argument for the future of this sub-discipline of criminology. The book is of particular importance to those with an interest in critical criminology, auto-ethnography, scholar activism, and the value of lived experience in the pursuit of the democratization of knowledge. It reflects well on the varied and complicated ways that convict criminology has been established in different parts of the world, and sets out a cohesive, yet flexible, call to action for the development of the movement.
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Chapter two of the book entitled CONTEXT IS EVERYTHING by Jeffrey Ian Ross offers a valuable oversight of the history of the “Convict Criminology” (CC) movement. It clearly explains what it is and what it is not and offers historical and socio-political contexts which help explain the establishment and rise of the group. Ross suggests that convict criminology was born over time in the 1990’s. It was built on the tradition in criminology and criminal justice that has often challenged traditional and orthodox practices, as well as efforts to change our agencies of power and control for the better. He goes on to offer a structural account of its development, emphasizing the importance of social movements, such as the 1960’s civil rights, anti war, peace and prisoner movements. These left-wing and progressive movements saw the development of initiatives in prisons teaching prisoners numeracy and literacy. Interestingly, Ross links the development of CC to pedagogical developments influenced by Paolo Friere who advocated for participatory learning. This extended prison learning beyond basic numeracy and literacy skills to the teaching of both practical and academic subjects that were considered useful for people after leaving prison.
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For me, as an aspiring convict criminologist myself, the mentorship aspect of the CC movement that Ross discusses is interesting. This has definitely, informally, been my experience of CC, and I have benefited from the mentorship of convict criminologist, Rod Earle. However, the book clearly illustrates that this mentorship is a very informal process, happening to a greater or lesser extent in different parts of the world. The book does a good job of recognizing this postcode lottery, and carefully considers different ways in which the mentorship could be specifically tailored to different geographical locations. The book also reinforces the importance of activism in convict criminology, stemming from the larger body of critical criminology and influenced by the work of the feminist movement. Ross’ chapter argues that activism can lead to effective policy changes in the criminal justice system through critical analysis of its work and thorough research that aims to change and reform the system.
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For me, Ross’s chapter, although it does make a great case for CC and sets out clearly the intentions of the movement, gives a sense of CC having been developed in a criminal justice vacuum. Although acknowledgement is given to the social and political conditions, <a name='more'></a>which enabled the rise of the CC movement, little is said about the influence of other sectors and disciplines on the movement. I argue that the evolution of the CC movement owes much to other social movements, such as the “Nothing About Us Without Us” disability movement (Charlton, 1998). and an acknowledgement of the doors that this movement opened for CC would be a welcome addition to the book.
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Throughout the book, I feel more attention could have been given to the long standing debate about the language used to describe the participants of the movement. Personally, I do not like the term “convict” criminology. Although I understand the arguments laid out very clearly by Ortiz et al (2022) in their article entitled LET THE CONVICTS SPEAK, I find myself cringing every time the distinction is made between ex-cons and non-cons. Ross does go on to acknowledge this uneasiness in a note at the end of the chapter, however I feel, given the complexity and importance of language, that in this situation, a more detailed discussion could have been useful.
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Chapter three of the book entitled CROSSING BORDERS, PUSHING BOUNDARIES AND PRIVILEGING “MARGINALIZED” VOICES by Sinem Safak Bozkurt, Marisa Merico, Andreas Aresti, and Sacha Darke is written in a more traditionally academic style. For me, this chapter is one of the best throughout the entire book. The power of storytelling is apparent here; the accounts are well written and thought provoking, as well as being well evidenced and grounded in academic literature and empirical research. The accounts also resonate personally, as they speak to my own experiences of being a mum while in prison. I enjoyed the arguments put forward about CC and absent voices. The acknowledgement that there are missing voices in the movement, but CC is a good format to support and develop those voices for the future is important.
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In chapter four DOING TIME FOR CONVICT CRIMINOLOGY, Rod Earle introduces an important and relevant discussion about what convict criminology can learn from and how it can contribute to the “experts by experience” agenda through exploring the potential for auto-ethnographic work in convict criminology and criminology more broadly. However, Earle seems to be saying that for an “ex-con” in CC, being in prison is a distinguishing factor. In my opinion, I don’t think this is necessarily the case. In fact, for women, very few have been to prison, but many more have received sanctions from the criminal justice systems. I suggest that this makes them experts in their own experience of the system, and they, therefore, have something valuable to contribute to the CC endeavor. I very much like the analogy that Earle makes about CIS men as both supportive child birth partners and empathetic and successful midwives. For me, this highlights the debate that centers much of CC. That somehow, voices from within are more truthful. This may, or may not be the case, however, these voices add context, depth, color, and texture to our current understanding of criminological processes.
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As a convict criminologist and a woman, it has taken me a long time to agree with the statement that Earle makes, but now I finally get it. “Convict criminology involves an active refusal to segregate our professional insights as criminologists from our personal lives” (p. 38). This act of resistance shows how CC continues to push against academic sensibilities, continuing in the fine tradition of critical criminology. Also useful in Earle’s chapter is the discussion on the purpose of vignettes. This attempt to marry personal reflections with criminological imagination pushes the narrative beyond pure biography and into academic territory.
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In chapter six, IN THE POOL WITHOUT A LIFE JACKET - STATUS FRAGILITY AND CONVICT CRIMINOLOGY IN THE CURRENT CRIMINOLOGICAL ERA, Grant Tietjen and Daniel Kavish explore the development of a new concept called “status fragility”. For me, this is helpful in order to understand the consequences of being someone with a criminal conviction trying to forge a career in academia. Tietjen and Kavish assert, “Status Fragility is a social-structural impediment that marginalizes the careers of academics with past felony convictions” (p. 66). Luckily (to date), this has not been my own experience in the academy, but I have spoken to many more senior academics who have convictions who feel this has been a real barrier to them progressing in academia. I feel this is a really useful concept that can be used to explore many different aspects of social and structural barriers for those with criminal convictions. For example, it could be applied in other types of regulated work, such as social work and health care where the battle to gain positions and the structures that are put in place may impede one's sense of security once in position.
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In chapter seven, Alison Cox examines A CONVICT CRIMINOLOGY APPROACH TO PRISONERS’ FAMILIES. In this chapter, she clearly demonstrates the connection between the activist roots of convict criminology and its push for systemic changes and support. She suggests that the CC movement needs to move beyond labels. She goes on to assert that for families of prisoners (who may fall into the non-con aspect of CC), being branded as guilty by association makes them feel more akin to convicts. As a movement, we need to get better at understanding and appreciating all of the harms that everyone who comes into contact with the criminal justice system experience.
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For me, what Cox is articulating is at the heart of the CC movement. It all comes back to the lived experience. CC needs to take the time to understand the experiences of prisoners' families and this, combined with a mentoring and activist role, means that the CC model lends itself well to understanding the experiences of other marginalized groups. Given what we know about the role of how a prisoner's scaffolding plays in their lives and how their ongoing relationships with family and friends support prisoners while on the inside and upon release, I wholeheartedly agree with Cox. It is vital that more work is done through the lens of CC to understand the importance of prisoners' families experiences.
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Overall, the book does a very good job of examining the global nature of convict criminology by pulling on its roots in critical criminology and exploring how the development of convict criminology has occurred in the U.S., the U.K., and across Europe. One of the original stated aims of CC was to expand conversations about the work beyond its origins in North America, and there has been some success in this. This book is testament to the off-shoots that have started to develop. However much work still needs to be done,especially in South America. In chapter nine, Valeria Vegh Weis makes the case that it is a much needed development in Latin America. Vegh Weis critically examines the challenges and solutions to developing CC in the Global South, and suggests that gatekeeping with a PhD is one of the most obvious barriers to the CC movement in Latin America, given that most prisoners only have a primary school level of education. The free public university system in much of Latin America means that the majority of lecturers do not receive any salary at all, and therefore, the fate of the CC movement is complicatedly tied up in discussions about privilege and structure. Ironically, it feels like the penal reform and activism that CC advocates for is needed even more in the Global South - to help reform prison conditions, but also wider societal conditions, such as workers pay and rights.
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To conclude, perhaps the most important contribution of this book is the opening up of a conversation about the potential for the development of a convict criminology perspective. The opportunity to use the critical lens of CC and adapt it in different ways to suit the individual needs of the person, country, and/or organization is much needed. In doing so, we need to consider how we gate-keep access into the CC movement. We are only hurting ourselves by restricting admission to those with experience of the prison system. We need to encourage all of those who self-identify as CC’s and welcome them into the discussion. By not including the voices of people who have served community sentences, or have masters degrees (and beyond), we are missing out on many contributions that could strengthen and secure the future of the cause.
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REFERENCES:<br />
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Charlton, J. (1998). NOTHING ABOUT US WITHOUT US: DISABILITY, OPPRESSION, AND EMPOWERMENT. Berkeley: University of California Press. Available from: https://doi.org/10.1525/9780520925441 <br />
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Ortiz, J.M., Cox, A., Kavish, D.R. and Tietjen, G., (2022). Let the Convicts Speak: A Critical Conversation of the Ongoing Language Debate in Convict Criminology. CRIMINAL JUSTICES STUDIES, pp.1-19.
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© Copyright 2023 by author, Danica Darley.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-8303320116978575042023-03-02T13:57:00.000-05:002023-03-02T13:57:55.297-05:00FROM PARCHMENT TO PRACTICE: IMPLEMENTING NEW CONSTITUTIONS<img src= https://assets.cambridge.org/97811087/38026/cover/9781108738026.jpg align=left style="margin:0 8px 8px" height=96>Vol. 33 No. 02 (February 2023) pp. 16-19<br />
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FROM PARCHMENT TO PRACTICE: IMPLEMENTING NEW CONSTITUTIONS, by Tom Ginsburg and Aziz Z. Huq (eds.). Cambridge: Cambridge University Press, 2020. pp309. Cloth $99.99. ISBN: 978-1-108-48773-3. Paper $34.99. ISBN 978-1-10873802-6.<br />
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Reviewed by Gary Jacobsohn. Department of Government. The University of Texas at Austin. Email: gjacobsohn@austin.utexas.edu.<br />
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Constitution-making is an inherently fraught activity, rendered so by the contradictions embedded in the goals of the enterprise. In the early days of independent India, Prime Minister Nehru, who had been a prime mover in the Constituent Assembly that framed his nation’s governing document, voiced a concern that expresses very well the underlying theme of this edited volume. “The whole purpose behind the Constitution which was meant to be a dynamic constitution…is somewhat hampered and hindered by the static element being emphasized a little more than the dynamic element and we have to find out some way of solving it” (Kashyup 1982, pp. xii-xiii). That the object of his concern is now a septuagenarian document, having endured much longer than most constitutions, may suggest that a solution was found. Or, as the essays in this splendid collection also suggest, its success in exceeding the longevity of the typical constitutional experiment may be attributable as much to the fortuitous convergence of local political and legal dynamics than to any systematically imposed solution.
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The specific focus of this collection of essays is the first period following the adoption of a new constitution. As its editors, Tom Ginsburg and Aziz Huq note, this stage can be viewed as “the conceptual, temporal, and institutional bridge between the past and future” (p. 1). Critical to reaching the second period and beyond – their data reveals the modal age of constitutional mortality to be one year – is the capacity and willingness of constitutional actors to engage with the tension that is endemic to governing documents no matter their differences in origin or design, namely the contending commitments to transformation and preservation. What follows their introductory chapter is an admirably coherent series of country studies in which the authors address this tension and the diverse ways in which success and failure have resulted from activities undertaken by these actors in the specific constitutional settings that are the subjects of their investigative efforts. If one were to imagine a spectrum with the goals of transformation and preservation on opposite ends, the countries included in this volume would easily fill all the spaces along the continuum. The absence of a concluding chapter is a slight disappointment more than compensated for by the implicit challenge to the reader to reflect upon the endurance prospects that are posed by a country’s spectral positioning.
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Most of the cases in this volume underscore the importance of the judiciary in navigating the turbulent waters of constitutional disputation and development. Fittingly, the first country study is of the world’s oldest governing document, and in Sanford Levinson’s account of the American example, we see very clearly that the institutional capacity of courts to provide determinative meaning to the transformation/preservation challenge is both broad and severely limited. Levinson sees only failure in the absence of judicially inspired constitutional adaptation, which in the United States practically means advancing the transformative possibilities of national consolidation over the preservationist bias of state sovereignty. Levinson, however, is mindful of an entrenched reality in normal constitutional politics, namely the textual advantages available to those with power-retaining interests that align with structural features whose settled properties render them largely impervious to even the most enlightened judicial manipulation.
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This resistance to court-imposed reformism rests more comfortably and predictably in constitutional settings notable for their authoritarian origins. As Ginsburg explains, <a name='more'></a>the uniquely complicated Chilean case of a constitution with both numerous democratic markings and a dictatorial pedigree can only move so far in a transformational direction before its judicial guardians reveal the appreciable constraints that legal institutions must accept in the service of authoritarian preservation. This unforgiving reality is even more evident in the less ambiguous case of Myanmar, where, in Melissa Crouch’s skillful telling, judicial interpretation may offer some hope for eluding parts of the constitutional designers’ authoritarian aspirations, but a more certain consequence of democratically inspired activities is swift and sometimes brutal military retaliation. “The risks of constitutional change are heightened during the first period, particularly if it is a transformative authoritarian constitution that protects the interests of the former authoritarian regime” (p. 280).
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Constitutional change is less hazardous in the absence of a looming specter of despotic assertion. What these studies convincingly demonstrate is that, in settings whose constitutional trajectory has a clear historically generated transformational significance, the courts can play an important, and even dominant, role in achieving both stability and change in the crucial early stage of constitutional development. Doing so, however, requires sensitivity to the broader political context, without which, as Rosalind Dixon and Theunis Roux argue in describing South Africa’s largely successful first decade of transformational implementation, a judiciary “will fail in translating parchment into practice.” Despite several missed opportunities, beginning in 1996, the apex court’s “custodianship of the constitutional project” proved instrumental in putting the post-apartheid regime on a path of legally inspired social change.
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Elsewhere, progress along such a path will require major course corrections. Indeed, as the Ecuadorian example suggests, the challenges to meaningful social transformation may be heightened to the degree that the document – in this case the 2008 Constitution – establishes an ambitious transformational agenda, thereby exacerbating the extant tensions that are incorporated in its provisions’ language and that are evident in the interests that can be straightforwardly mobilized in the face of a deeply inscribed constitutional threat to the status quo. Eric Alston’s analysis contains important lessons for constitutional designers who may prudently decide that the formidable project of getting a new constitutional project off the ground should lead them carefully to consider the implementation implications of an overly ambitious and specific textual mandate for societal transformation.
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Designers, of course, must conduct their work deeply immersed in the broader historical context of constitutional creation. This could lead them to anticipate a less treacherous path through the first period, with the judiciary assuming the key role in facilitating a transformational program. Thus, in neighboring Colombia, for example, that country’s first period was, as Diego Gonzalez deftly shows, an exemplary instance of the fortuitous convergence of factors that can expedite a successful judicially led achievement of transformative aspirations with minimal obstruction from preservative sources of opposition. A long history of constitutional supremacy and judicial review provided the Colombian Constitutional Court with a measure of legitimacy vital for its impactful role in launching the new 1991 Constitution. But for the ensuing dramatic changes to take hold, the Court was very much reliant on the framers’ astuteness in fashioning a decidedly aspirational document whose principle-oriented provisions offered ample latitude for creative constitutional interpretation.
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However successful courts may be in traversing the tensions present within the folds of the texts bequeathed to them, progressive constitutional advancement – in the first period and beyond – is not limited to the disharmonic challenge judges confront in their glorified parchment pages. The broader constitutional order consists of institutions, interest groups, and private power centers that, to varying degrees, embrace commitments that in themselves represent a set of external disharmonies that further complicate the task of resolving the central tension highlighted in this book. This is made manifestly evident in Claudia Flores’ analysis of how the gender issue played out in the first period of the Zimbabwe Constitution. The blatant discrepancy between legal rules and local practices left the entrenched reality of gender inequalities at the mercy of preservationist sentiment, constitutional language to the contrary notwithstanding. Yet, a more optimistic take on the way the gender issue has unfolded in the first period is that, as Flores notes, a constitutionally inspired conversation on the subject has opened, with what possible ultimate transformative effects still to be determined.
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Looking beyond a governing document’s formal rules is also the point of emphasis in James Thuo Gathi’s insightful consideration of Kenya’s experience under its 2010 “Madisonian Constitution.” Implementing this constitution in a competitive authoritarian context presented challenges scarcely recognizable if one’s focus was solely on the checks and balances formally engraved in the document. Gathi’s attention to informal sources of influence and power, especially as they are entrenched in networks of patronage and pockets of ethnicity, provides sober perspective on the small-c constraints that limit realization of the grander ambitions of formal large-C liberal constitutionalism. The Constitution is now in its second period, a transition occurring in 2017 following the nullification of election results. And very recent events in that country involving a disputed election might give additional support for the author’s hopeful observation to the effect that the judiciary is “the one bright beacon of successful transformation” (p. 234). As for comparative cases that might fruitfully be illuminated by this discussion of a Madisonian Constitution, the reader might well consider other recent events, such as those occurring in the country that brought forth this constitutional nomenclature.
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Finally, I return to Nehru and his frustration in seeing the dynamic element of the constitution being subordinated to its static element. Much of that frustration was directed at the judiciary, but in Madhav Khosla’s brilliant contribution about the Indian case, we come to understand the subtle and far-reaching ways in which that institution can contribute decisively to the establishment of constitutional order. Khosla brings to our attention the salutary effects of doctrinal efforts by Indian judges for the creation and perpetuation of a legal order that is now well beyond the first period of constitutional life, and long past the time when most constitutions succumb to one fatal disease or another. In his account, the Supreme Court has achieved a balance in the central tension of the constitutional predicament, thereby preventing the sort of dangerous escalation that could lead to terminal rupture. The dialogical working out of conflicting principles, notably as it exists in the quite different priorities of the document’s Directive Principles and Fundamental Rights, has succeeded in generating norms and conventions that, while not settling the many contested issues that lie at the intersection of these transformative and preservative aspirations, has made it possible to continue a political conversation that mitigates tension while offering the possibility of policy reconciliation.
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This reviewer has long embraced the view that disharmony is endemic to the constitutional condition, that it is the critical variable in understanding the development of any constitutional order. Among its many praiseworthy virtues, FROM PARCHMENT TO PRACTICE: IMPLEMENTING NEW CONSTITUTIONS will be lauded by anyone who shares this perspective.
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REFERENCES<br />
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Kashyup, Subhash C. 1982. "Parliamentary Debates V." In JAWAHARLAL NEHRU AND THE CONSTITUTION, eds. Subhash C. Kashyap and Jawaharlal Nehru. New Delhi: Metropolitan.
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© Copyright 2023 by author, Gary Jacobsohn.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-6312142519557809382023-02-12T13:07:00.000-05:002023-02-12T13:07:00.180-05:00A CONSTITUTION FOR THE LIVING: IMAGINING HOW FIVE GENERATIONS OF AMERICANS WOULD REWRITE THE NATION’S FUNDAMENTAL LAW<img src= https://www.sup.org/img/covers/small/pid_21274.jpg =21274 align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 1 (January 2023) pp. 12-15<br />
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A CONSTITUTION FOR THE LIVING: IMAGINING HOW FIVE GENERATIONS OF AMERICANS WOULD REWRITE THE NATION’S FUNDAMENTAL LAW, by Beau Breslin. Stanford, CA: Stanford University Press, 2021. pp.359. Cloth $28.00. ISBN: 9780804776707. Epub $25.00. <br />
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Reviewed by Staci Beavers. Department of Political Science. California State University San Marcos. Email: sbeavers@csusm.edu.
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Picking up Beau Breslin’s new book ten years ago likely would have proven an engaging exercise that I could have then promptly set aside to go back about my own business. Breslin puts forward an intriguing idea with his “experiment in constitutional imagination” (p. 29). His experiment is envisioning shifting constitutional debates through narrative accounts of imagined constitutional conventions held at several inflection points throughout U.S. history. But, reading this work in the aftermath of an insurrection and evidence of a high-level, coordinated effort to undermine a presidential election proved quite a different experience entirely. The underlying concept here still intrigues. However, when addressing contemporary U.S. challenges, Breslin’s effort feels as if it were written in a vacuum devoid of important recent context.
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Breslin’s starting point is the founding-era debate over the appropriate lifespan of a written constitution, specifically Philadelphia’s 1787 effort. James Madison, of course, won with a “stable, lasting, and enduring” charter (p. 25), though Breslin largely leaves alone the debate over how such an “enduring” constitution should be interpreted and applied centuries after its ratification. He focuses instead on Jefferson’s losing argument that written constitutions should be formally re-examined and potentially even replaced for the governing of each successive generation. Taking up Jefferson’s call for periodic constitutional re-examinations, Breslin envisions how a series of constitutional conventions could have played out at several points across U.S. history. As Breslin articulates his quest, “…what would America’s constitution have looked like in each major era if Jefferson had convinced” his contemporaries “that each generation ought to draft its own text?” (p. 29).
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While sci-fi fans’ antennae may quiver at the time-travel dilemmas potentially in play here, Breslin assumes the throughline of U.S. history remains essentially unchanged despite significant constitutional changes he thinks could have resulted from each convention. The reader must fight the explicitly denied (yet persistently implicit) message that such constitutional changes would yield no practical effects. The approach is understandable, but it can prove wearing.
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To structure his narrative, Breslin strives to honor the spirit of Jefferson’s support for generational change while recognizing that increased human life expectancy makes Jefferson’s own suggestion of a 19-year sunset clause on a written constitution (p. 22) less plausible. He gives a fair bit of attention to life expectancy calculations over time (p. 37) to set upon constitutional conventions for 1825, 1863, 1903, 1953, and 2022.
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How to determine the debates to fuel these dramas? Breslin provides his criteria here:
<blockquote>What was happening at the time of the fictional constitutional convention that might influence the thinking of the delegates? What constitutional design characteristics were currently in vogue? How might the environment and design preferences interact with each other to produce a particular constitutional outcome? These are fundamental questions that all constitutional framers consider (p. 39).</blockquote>
To answer these questions, Breslin utilizes “Supreme Court opinions; the political, economic, and social events of the time; broad policy initiatives; crises, and much more” (p. 41). While their translation to national-level constitutional debates is far from perfect, Breslin also draws heavily on state-level constitutional debates from each respective era, particularly state constitutional conventions (pp. 42-43).
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For my own part, the thought experiment plays out most successfully for Breslin’s 1825 convention. The concept is freshest in the book’s early chapters, but Breslin also very effectively reminds the reader of the enduring relevance of 1825’s constitutional controversies. For example, the discussion of early Electoral College debacles (pp. 49-50) will surely resonate with contemporary readers. Breslin puts Daniel Webster at the center of his narrative to flesh out debates over the voting franchise and class divides (pp. 66-77) at a time when the U.S. was significantly less demographically diverse than it is today. His discussion of possible federal constitutional status for public education (pp. 81-87) also resonates given today’s high-octane constitutional battles over public funding for private religious schools and public school funding and instruction. On the other hand, one puzzling omission is the pre-Civil War debate over nullification. Also, in Breslin’s telling, convention delegate Daniel Webster determined “the country was too fragile and too varied” (p. 93) for a debate over slavery at this point in U.S. history, so this issue remains largely unexamined until the following chapter where it, of course, comes to the forefront.
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Breslin’s successive fictional conventions follow similar paths. For example, Breslin’s imagined 1863 convention witnesses debates over federalism, the institution of slavery, and competing approaches to addressing the economic, political, and social impacts of emancipation. Of these later chapters, perhaps Breslin’s 1903 convention is the most surprising in how it resonates so heavily with some of today’s flash points which explore U.S. policy towards American Indian tribes (pp. 188-193) and proposals to address Jim Crow in the aftermath of PLESSY v. FERGUSON (1896). Women’s suffrage is discussed in part as an effort by some supporters at even “further suppressing [and diluting] the Black [male] vote” (p. 168) that ultimately backfired. Breslin also gives attention here to the nation’s then-burgeoning taste for imperialism by mentioning potential foreign policy provisions (pp. 193-200).
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But, Breslin’s effort hits snags when he turns his attention to the present. Breslin’s second stated objective with this book is “to take up the ultimate present-day question: should we return to Philadelphia to draft a new constitution?” (p. xix). Under the Constitution’s Article V, a constitutional convention can be called at the request of 2/3rds of the states. The book’s Preface and Epilogue, as well as its 2022 fictional narrative, touch on some of today’s leading governance challenges and critical issues. But, lifting up the idea of a contemporary constitutional convention without examining either the current on-the-ground reality or contemporary arguments for and against such a convention provides the reader with a concerningly incomplete picture.
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Breslin’s fictional 2022 convention briefly mentions the Conference of States (p. 262), and even quotes one of their constitutional proposals (p. 289) from a 2016 “mock convention” hosted for conservative activists (Panetta and Griffiths). Where his Preface speaks directly to reality rather than his fictional world, Breslin briefly mentions contemporary calls for constitutional conventions, including the somewhat rough “Friends of Article V” website (pp. 29-30, footnoted p. 324) and the Kentucky Legislature’s 2011 call for a constitutional convention, specifically to address budget deficits (p. 31).
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But such mentions do not adequately address the very real and serious efforts already underway to bring about such a convention, and this context is important. Following model language provided by the Convention of States, 19 Republican-controlled state legislatures have, as of 2022, already issued formal calls for a constitutional convention, and several other legislatures have seen support in one legislative chamber already (https://conventionofstates.com/). While not all contemporary efforts at wholesale constitutional change have come from the political right, the better-coordinated and better-funded efforts seem to be the work of political conservatives, supported by organizations such as the American Legislative Exchange Council (ALEC) (Wines, 2016; Panetta and Griffiths, 2022). Whether one supports or despairs of such efforts, not addressing this context, or airing arguments for and against a contemporary convention, is a significant gap.
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Admittedly, my own guard goes up these days at “both sides-isms”, such as Breslin’s early reference to “a citizenry that absorbs hysteria and hyperbole from both sides of the political aisle” (p. xiv), so perhaps I’m not able to bring sufficient objectivity to bear. At this point, can anyone? To be fair, Breslin’s work had gone to press before the January 6, 2021 insurrection and broad public exposure of the wide-ranging plot to undermine the 2020 election and plan the attack on the U.S. Capitol. But surely, enough warning signs of legitimate threats to American representative democracy have been evident for years that a more holistic and context-grounded discussion was worth including here.
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As previously noted, there is much to like in the thought experiment of exploring what a baked-from-scratch constitution to meet today’s needs could be. But with such high stakes in play in contemporary America, the fiction here merits some reality checking.
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REFERENCES:<br />
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CASES:
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PLESSY v. FERGUSON, 163 U.S. 537 (1896}.
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REFERENCES:
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Wines, Mike (2016, August 23). “Inside the Conservative Push for States to Amend the Constitution.” NEW YORK TIMES. Retrieved at https://www.nytimes.com/2016/08/23/us/inside-the-conservative-push-for-states-to-amend-the-constitution.html
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Panetta, Grace and Brent D. Griffiths. (2022, July 31). “Republicans’ Next Big Play is to ‘Scare the Hell out of Washington’ by Rewriting the Constitution. And They’re Willing to Play the Long Game to Win.” BUSINESS INSIDER. Retrieved at https://www.businessinsider.com/constitutional-convention-conservatives-republicans-constitution-supreme-court-2022-7
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© Copyright 2023 by author, Staci Beavers.<br />
<br /Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-82054108141350176502023-02-12T13:06:00.000-05:002023-02-12T13:06:00.182-05:00LABORATORIES AGAINST DEMOCRACY: HOW NATIONAL PARTIES TRANSFORMED STATE POLITICS<img src= https://pup-assets.imgix.net/onix/images/9780691218458.jpg?w=600&auto=format align=left style="margin:0 8px 8px" height=96> Vol. 33 No.1 (January 2023) pp. 7-11<br />
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LABORATORIES AGAINST DEMOCRACY: HOW NATIONAL PARTIES TRANSFORMED STATE POLITICS, by Jacob Grumbach. Princeton: Princeton University Press. 288 pp. Cloth $29.95. ISBN: 9780691218458.<br />
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Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm@wlu.edu.<br />
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This is an important and potentially controversial book. Grumbach offers a sweeping analysis of American political parties, federalism, and political polarization to argue that the nationalization of the Democratic and Republican parties in particular and American politics in general has resulted in “a resurgence of state governments at the center of American policymaking, reduced policy learning between states controlled by opposing parties, and democratic backsliding in states controlled by the Republican party” (pp. 4 -5). As a result, he argues, states have become laboratories not of democratic innovation but, instead, democratic backsliding in which they “innovate” “new ways to restrict the franchise, gerrymander districts, exploit campaign finance loopholes, and circumvent civil rights in the criminal justice system” (p. 5).
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What Grumbach observes and describes is a confluence of numerous changes in and pathologies of U.S. politics, not federalism itself. A system that once fostered state-by-state innovation and political diversity has been homogenized by national parties. Despite gridlock at the national level, the parties have assembled pervasive networks of activist, incumbents, and groups (p. 8) penetrate even the most local aspects of politics and, thereby, homogenize what was once a politically and geographically diverse American universe. Thanks to the empowerment of groups such as the National Rifle Association and MoveOn.org and the impact of social media, these two partisan networks have polarized all aspects of the political system despite the expectations of the Framers who clearly anticipated a dynamic, diverse federal polity.
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He notes that individual rights now vary radically between Republican and Democratic states (p.10). Such partisan divides militate against collaboration and mimicking of successful policies while national organizations plow funds and influence into the states to promote model legislation that fits with either of the national parties’ agendas. He holds the Republicans particularly accountable for eroding democracy across states in which they have gerrymandered, restricted access to the franchise, and restricted civil liberties (p.13).
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Grumbach reaches what some may regard as a startling conclusion. Despite the negative impact of the nationalization of politics, he calls for decreasing the power of the states further.
<blockquote>Groups that care about democracy and justice should take advantage of the moments when they control the national government. They should, of course, use executive actions and congressional legislation to further their goals. But, critically, they should pursue institutional changes that reduce the role of lower levels of government over the long term (p. 203. Italics in original).</blockquote>
He concludes that Brandeis’s hopes that states would serve as laboratories of democratic innovation have not materialized. To the extent that states are now the center of American policymaking Brandeis’ vision holds true (p. 32). The states are not promoting democracy; they are hindering it. Brandeis himself might agree with Grumbach’s analysis. To the extent that Grumbach demonstrates that exogenous factors have undermined the positive potential of federalism, his analysis echoes observations made by Brandeis, e.g., in OLMSTEAD v. UNITED STATES or OTHER PEOPLES’ MONEY AND HOW BANKERS USE IT. In the former, Brandies called upon the Supreme Court to take the impact of tech advances into account when reviewing the warrant requirement and wiretapping. Similarly, he called for the national government to play a greater role in controlling private power in response to the vast influence of corporations in US politics. Yet, Brandeis was conflicted. On the one hand, he called for constrains on the federal government in OLMSTEAD while placing great hope on its capacity to do the right thing when using its power to control—or at least manage—the powerful. Grumbach’s analysis is no less characterized by internal tensions if not inconsistencies.
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Grumbach analyzes the performance of state government using a “State Democracy Index.” This is an impressive analysis that draws upon numerous variable which can be grouped broadly under the cost of voting, fairness of districting, and basic civil liberties (p.163). He demonstrates convincingly that Brandeis’ hopes for a nation of democratic laboratories is no longer apt. States tend to emulate successful policies in wealthier states under the same partisan control (p. 146). There has been a clear pattern of racially motivated restrictions on access to the polls (pp.151-59). This preceded the election of Donald Trump and was precipitated by the Supreme Court’s decision in SHELBY COUNTY v. HOLDER (2013) to strike down section 4 of the Voting Rights Act and, thereby, strike down the preclearance provisions in section 5 (see, e.g., “Democracy Diverted”).
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His conclusion that groups that care about democracy “should pursue institutional changes that reduce the lower levels of government over the long term” (p.203) resonates profoundly with stories such as those of franchise restrictions in the wake of HOLDER. He maintains that federalism has failed because “there is a pattern in American history: when state governments have wide policy leeway and there is wide policy variation across states, American democracy tends to suffer” (p. 197). However, the lack of any congressional response to HOLDER (or, for that matter, CITIZENS UNITED) belies his suggestion that hopes for better democracy lie in the centralization of political power or its allocation in stronger national political groups.
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Grumbach demonstrates that American politics is torn between an absence of action at the national level and an excess of action at the state and local levels. Unfortunately, the latter is as apt to generate policy outcomes that Grumbach favors as it is to generate those that he dislikes. As he notes, “it is easy to overly focus on policy progress in some states while neglecting the question of whether, on average, the country would be freer, fairer, or more just if states had less authority” (p.198). No doubt, recalibrating the federal balance of power could, perhaps energize Congress to re-assume the leadership role it undertook in the 1960s when it passed the Civil Rights and Voting Rights Acts. Nonetheless, such leadership requires bipartisan cooperation that is absent under polarized political conditions such as those in 2022.
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A wiser, more progressive national government is perhaps as threatening as it is necessary in the 21st century. Nations face unprecedented challenges that are truly global in scope. As a result, Ross Mittiga argues that nations generally may need to take a step or two in the direction of “authoritarianism” (what he describes as a centralization of power in the executive, less reliance on democratic processes, and some restriction of 19th and 20th century visions of civil liberties) to combat climate change. Ran Hirschl thoughtfully challenges scholars to rethink the nature of global, national, and local government as he demonstrates the impact of increased urbanization across the globe. Whereas Mittiga suggests that centralization may be necessary, Hirschl suggests that a decentralization towards a world of city governments may be more practical—and likely.
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In calling for stronger national oversight of matters such as electoral policy, Grumbach raises the specter that centralizing power in the national government could enhance the possibility of an “autocrat’s” coming to power (p. 25). Curiously, he overlooks that his prescriptions are indeed somewhat authoritarian in nature (echoing Mittiga’s analysis) to the extent that they would nationalize and centralize governmental power and, thereby, attenuate the relationship between the governed and the government.
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Certainly, one can argue, as Grumbach does, that the threat of centralization (here I avoid his frequent references to “autocrats” and “authoritarians”) pales in comparison to the status quo “long-standing…cooptation of a substantial proportion of electoral institutions in the states”
(p. 25). No doubt, there is something fundamentally bizarre in a situation where Americans have the right to travel from state to state, but still must recalibrate the scope and definition of their rights to everything from voting rights to access to abortions to their capacity to work as cosmetologists (Klein 2016) when they cross state borders. A federalism for the 21st century clearly needs to be updated, rearticulated, and freed from the absurd and retrograde consequences of theories whose proponents pretend that some vision of “originalism” will address policy challenges that were inconceivable in the 18th century.
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Nonetheless, one wonders whether Grumbach’s nationalization of power—complete with reliance on powerful, national groups—would be appealing, liberal, or democratic despite its preferability to the status quo he describes. One also wonders whether that status quo might not be inevitable. This is by no means gratuitous criticism or dismissal of Grumbach’s concerns and analysis. He identifies real political challenges that require action.
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Even if it were possible somehow to amend the U.S. Constitution, reinvigorate the national government, and pursue a 21st century vision of the general welfare (in accordance with Article I of the Constitution), one wonders if this would lead to the homogenization, expansion, and progressive rearticulation of rights and liberties that Grumbach desires. Certainly, a powerful national government could put teeth back into the civil rights acts, establish common, best practices for elections, and maybe even establish modern articulations of the privileges and immunities of all Americans so that they would not, for all intents and purposes, need to check their passports or review a new constitution every time they crossed state lines.
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To unify and homogenize liberties and rights in this manner would require a tremendous expansion in the power and pervasiveness of the national government. Is this possible or desirable? From personal experience, I know that bible busses still run. But, I’m not sure Americans are prepared to foot the tax bill to put marshals on every school bus. This homogenization will require force at best and perhaps lead to violence at worst. (See, e.g., the depiction of environmental black operations in Kim Stanley Robinson’s MINISTRY FOR THE FUTURE). “FORCE” could range from legislative incentives attached to national legislation to 21st century versions of sending the troops into Little Rock to desegregate the schools. (Call it what you will but rendering fossil-fuel powered vehicles worthless or forcing plant owners to change their means of generating power will fit someone’s definition of force or violence.)
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Thus, based on Grumbach’s analysis, it is clear that a nationalization or centralization of government power is necessary to re-establish and rearticulate the basic rights of Americans. The status quo won’t do if you are seeking an abortion or looking to cast a vote. Nonetheless, even if the national government could strengthen the foundations of individual rights and liberties (assuming, for the sake of argument that rearticulated rights to abortion, voting, gun possession, etc. would be sure to irritate at least some citizens), one wonders what Grumbach’s government would look like to those who would disagree with its policies. We can’t have it both ways. I agree with Grumbach that the current status quo is unacceptable. One wonders whether his or any other vision of an elite-driven centralized “democracy” will resemble a benevolent dictatorship or the HUNGER GAMES.
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In conclusion, this is an important, provocative work. Readers will leave LABORATORIES AGAINST DEMONCRACY marked up, dog-eared, underlined, etc. They will use the extensive bibliography to refresh their knowledge of the literature on federalism. If I have any substantive criticism, it is, simply, that the book needs a broader comparative perspective. Perhaps Grumbach will tackle that in his next work—one to which fellow scholars can look forward to reading.
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CASES:
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CITIZENS UNITED V. FEC, 558 U.S. 310 (2010).
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OLMSTEAD V. UNITED STATES, 277 U.S. 438 (1928).
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SHELBY COUNTY V. HOLDER, 520 U.S. 529 (2013).
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REFERENCES:
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Bawn, Kathleen, Martin Cohen, David Karol, Seth Masket, Hans Noel, and John Zaller. 2012. “A Theory of Political Parties: Groups, Policy Demands, and Nominations in American Politics.” PERSPECTIVES ON POLITICS 10: 571-97.
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Brandeis, Louis. 1914. OTHER PEOPLE’S MONEY AND HOW BANKERS USE IT.
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Collins, Suzanne. THE HUNGER GAMES. Wilkinsburg: Scholastic Press.
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Hirschl, Ran. 2020. CITY, STATE: CONSTITUTIONALIMS AND THE MEGACITY. New York: Cambridge University Press.
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Klein, Alexandra. 2016. “Freedom to Pursue a Common Calling: Applying Intermediate Scrutiny to Occupational Licensing Statutes.” WASHINGTON AND LEE LAW REVIEW 73 (1): 411-466.
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Leadership Conference on Civil Rights. 2019. “Democracy Diverted: Polling Place Closures and the Right to Vote.” Available: https://civilrights.org/edfund/resource/democracy-diverted-polling-place-closures-and-the-right-to-vote/#:~:text=The%20report%2C%20Democracy%20Diverted%3A%20Polling%20Place%20Closures%20and,of%20highest%20closure%20rates%20between%202012%20to%202018. Accessed November 28, 2022.
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Mittiga, Ross. 2021. “Political Legitimacy, Authoritarianism and Climate Change.” AMERICAN POLITICAL SCIENCE REVIEW 116 (3): 998-1011.
https://www.cambridge.org/core/journals/american-political-science-review/article/political-legitimacy-authoritarianism-and-climate-change/E7391723A7E02FA6D536AC168377D2DE
Accessed February 9, 2023.
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Robinson, Kim S. 2020. THE MINISTRY FOR THE FUTURE. New York: Hachette Book Group.
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© Copyright 2023 by author, Mark Rush.<br />
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Unknownnoreply@blogger.comtag:blogger.com,1999:blog-2667314610583025066.post-58260220306701310602023-02-12T12:55:00.000-05:002023-02-12T13:02:46.923-05:00YOU ARE NOT AMERICAN: CITIZENSHIP STRIPPING FROM DRED SCOTT TO THE DREAMERS and AMERICAN BY BIRTH: WONG KIM ARK AND THE BATTLE FOR CITIZENSHIP
<img src= http://www.beacon.org/Assets/ProductImages/978-080705142-9.jpg align=left style="margin:0 8px 8px" height=96> Vol. 33 No. 1 (January 2023) pp. 1-6 <br />
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YOU ARE NOT AMERICAN: CITIZENSHIP STRIPPING FROM DRED SCOTT TO THE DREAMERS by Amanda Frost. Boston: Beacon Press, 2021. pp.248. Cloth: $27.95. ISBN-13:978-0807051429. Paper: $16.95. ISBN-13:978-0807055458.
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<img src= https://kansas-unipress-us.imgix.net/covers/9780700634217.jpg?auto=format&w=298&dpr=2&q=30 align=left style="margin:0 8px 8px" height=96> Vol. 33 No.1 (January 2023) pp. 1-6 <br />
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AMERICAN BY BIRTH: WONG KIM ARK AND THE BATTLE FOR CITIZENSHIP by Carol Nackenoff and Julie Novkov. Kansas: University of Kansas Press, 2021. pp.304. Cloth: $37.50. ISBN-13:978-0700631926. Paper: $27.95. ISBN-13:978-0700634217.
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Reviewed by Reviewed by Anna O. Law. Department of Political Science. City University of New York. Brooklyn College. Email: alaw@brooklyn.cuny.edu.<br />
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Citizenship is a concept that most Americans, especially natural-born citizens, only occasionally think about. Perhaps some are temporarily reminded of it when they use it as a passport for foreign travel. But for those politically disfavored individuals and groups who were and are fighting for formal citizenship or to regain lost citizenship, attaining and reclaiming the status was an arduous fight. The lack of or loss of citizenship had negative consequences for their ability to travel, work, hold public office, and avoid deportation.
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Two new books, one by a legal scholar and another by two political scientists, illustrate how, in addition to immigration laws that police its geographic borders, nations also use citizenship laws to regulate entry into the political community. As Hannah Arendt famously wrote, before one can enjoy social, political, or civil rights, one must first have citizenship which conveys, “the right to have rights” (Arendt 1976, p. 296-297). The books examine how disfavored groups experienced the lack of citizenship or the loss of status, and how having formal citizenship did not always mean equal treatment.
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U.S. citizenship is an antecedent of the English conception of citizenship as perpetual and immutable. The notion then was once a citizen of a nation, always a citizen. The American innovation after the Revolutionary War was to introduce the idea of being able to choose one’s citizenship and to change it over one’s lifetime. But the other side of that double-edged sword is that the nation could also pick and choose which persons and groups to grant citizenship to as an incidence of its national sovereignty (Nackenoff and Novkov 2021, p. 7-27; Kettner 2005). Both AMERICAN BY BIRTH and YOU ARE NOT AMERICAN are case studies of the development of U.S. citizenship in a nation of settler colonialism and slavery.
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Recent books by legal scholar Amanda Frost, and political scientists Carol Nackenoff and Julie Novkov on U.S. citizenship are useful to law and courts political scientists, especially those researching and teaching U.S. Constitutional Law, Politics and Law of U.S. Immigration, and Americanists who are interested in racial and ethnic politics. Both books capture the precarity of citizenship and how it was circumscribed by the politics of different eras. Professors Nackenoff and Novkov’s AMERICAN BY BIRTH is an exploration of the history of birthright citizenship through the lens of the landmark case UNITED STATES V. WONG KIM ARK, the case of a native-born Chinese American man who sought citizenship in 1898. Their book is a strong addition to the University of Kansas’ Landmark Law Cases and American Society series.
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Nackenoff and Novkov focus on the capacity of the Constitution to provide for equal treatment and the political constraints “on the ground” in different eras of American politics that undercut that promise. It addresses how citizenship was defined in the face of two enduring and competing impulses in the U.S.: “the growth and expansion through generous immigration and integration of new residents, and that of white supremacy” (p. xix). Professor Frost’s YOU ARE NOT AMERICAN analyzes citizenship stripping, or how individuals who had citizenship lost the status, and how it affected them. She similarly attributes these episodes to the U.S. “struggling with its conflicted identity” when it decides to strip someone who previously had citizenship to, “snatch back a status that some conclude, had been given away too lightly” (p. 8). Both books are written in a refreshingly jargon-free and accessible style.
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The Law and Courts subfield is dominated by behavioral and attitudinal scholarship. Those studies are powerful in uncovering what judges and justices decide, and what variables influence those legal outcomes. Meanwhile, the legal academy mostly takes a doctrinal approach with casebooks that provide limited historical and political context for landmark cases. One gains from casebooks a mastery of the doctrinal development in a particular area of law, but not always the trajectory of American politics and history. But in landmark cases in constitutional law, often what the justices decided is much influenced by when they decided and what else was happening in the rest of American politics at the time. The American Political Development process tracing that Nackneoff and Novkov employ accomplishes this task well. The Frost book arranges vignettes of different individuals that lost citizenship in chronological order and makes comparisons within chapters of different groups and individuals. Both books convey the specific temporal and political contexts of citizenship, the moments in constitutional history, or even a single date before and after a law is passed, when, “one’s access to rights is completely different.” As Elizabeth Cohen explained it, “Rights derive not just from who we are and where we are but also from when we are” (p. 5, 6).
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A strength of both books is that they extend the timeline of analysis forward and backward from the moment specific legal opinions were decided. Nackenoff and Novkov trace the politics and history of the exclusion and deportation policy and the politics involving the Chinese leading up to the Wong Kim Ark case. Their book effectively weaves doctrinal, historical, and political development together. One comes to appreciate the broader trends in citizenship in the U.S., in immigration policy, and where Wong Kim Ark’s case figures into that evolution. Frost’s book also delivers historical and political context but with a different strategy. Instead of a deep dive into one case, she offers vignettes of famous and non-famous people in the development of citizenship. From that montage, one understands how citizenship is unstable because of the range of grounds used to justify stripping, which includes: “race, ethnicity, religion, political orientation, or choice of marriage partner” (p. 192).
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Both books also go beyond the time horizon of the standard accounts. Nackenoff and Novkov trace Wong Kim Ark’s story past his legal victory to how his children were treated when they left the U.S. and tried to return when they met with exclusion or forced incarceration each time. Frost also follows several of her subjects beyond their legal battles with the U.S. government. This approach paints a fuller picture of how their legal battles over citizenship affected them and their families in the rest of their lives.
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YOU ARE NOT AMERICAN and AMERICAN BY BIRTH effectively explain American citizenship as uneven, selective, and never as capacious as the Nation of Immigrants founding myth suggests. The Naturalization Act of 1790 was the first time the national government defined how non-native born people could acquire citizenship. It defined naturalization for the first time as open to “any aliens” who were “a free white person.” Their children, up to age 21, could also be naturalized. That law was broad in its inclusiveness of most European migrants, but its racial prerequisite would have repercussions for non-white international migrants and domestic migrants, including free Black people born in the U.S. before the Reconstruction Amendments. As generous as the Naturalization Act of 1790 was to whites, it excluded non-white migrants, women, and Indians “not taxed.” The Fourteenth Amendment’s birthright citizenship clause, meant to repudiate the DRED SCOTT V SANFORD decision, nevertheless had limited effects for African Americans and migrant groups like the Chinese, Mexican, and Central Americans. These two books explain why a constitutional amendment was not enough to ensure the equal treatment of disfavored groups.
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The developments in American citizenship, including its sometimes-absurd contradictions, is illustrated in both books with distinct strategies. Frost discusses it in passages in the vignettes where she compares America’s treatment of different groups in the same chapter. One example is in Chapter 5 “Citizen Stateswoman”, on Ruth Bryan Owen’s run for Congress and how her eligibility was questioned because she lost her citizenship under the Expatriation Act of 1907. That Act stipulated that “any American woman who marries a foreigner shall take the nationality of her husband.” It had the effect of automatically stripping native-born women of their citizenship if they married a foreign man, but did not do the same to native-born men who married foreign women.
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In that same chapter, Frost draws a contrast to the parallel moment sixty years before during the Reconstruction era with African American Senator Hiram Rhodes Revel (whose story is described in detail in Chapter 2), the first African American man elected to Congress after the Civil War. Revel, who was the Senator-elect from Mississippi in 1869, had his eligibility to be seated as a U.S. Senator disputed based on his citizenship. The Democrats objected that the Constitution stipulated that Senators “must have been a citizen of the United States for nine years” and according to them, Revel was seven years short. Revel’s supporters retorted that the Thirteenth Amendment retroactively granted him citizenship at his U.S. birth.
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Frost traces the parallels of Revel and Owens’ fight to be rightfully seated in Congress based on attacks on their citizenship. She also points out that while the Cable Act of 1922 restored white women’s citizenship (and right to vote), similarly situated non-white native-born women who had their citizenship stripped from marrying a foreign man or a man who was racially barred from naturalizing could not reclaim their citizenship (p. 108, 105). Frost’s choice to pair the stories of Revel and Owens, and Fritz Kuhn and Joseph Kurihara’s stories in Chapter 6, entitled “Blut Citizen”, effectively highlights the inconsistencies and hypocrisies of citizenship stripping.
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Nackenoff and Novkov tackle the inconsistencies in American citizenship and the influence of local and national politics. AMERICAN BY BIRTH includes a chapter “Chinese Immigration and the Legal Shift toward Exclusion” to provide political and historical context for how the Chinese became a despised group after being recruited to work in the United States, and how Chinese exclusion that originated in the West and Pacific Northwest spilled over into national politics. The reader is told that after the national consolidation of migration controls from more than a century of state control, the first federal immigration law was the Chinese Exclusion Act of 1882, which banned much of Chinese immigration, except for a few narrow categories of merchants, diplomats, teachers, students, and tourists. Their chapter includes the Supreme Court case CHAE CHANG PING V. U.S. (aka “The Chinese Exclusion Case”), in which the Court upholds the exclusion of Chinese immigrants. That broader context of Chinese exclusion is necessary to understand that the fight to ban a native-born man of Chinese descent from citizenship was a backup plan rooted in the same anti-Chinese animus that had seized the country and led to the first federal immigration law to exclude by race. The authors also trace the aftermath of the Wong Kim Ark decision to subsequent debates on citizenship in U.S. territories and with Native people.
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There is no explaining American citizenship without tracing the indelible effects of slavery on the nebulousness of national and state citizenships before the Civil War. Both books address this point in their own ways. Nackenoff and Novkov’s first chapter, “The Foundations of American Citizenship”, is an extended discussion of citizenship in the antebellum period. Before the Reconstruction Amendments, the U.S. Constitution barely defined national citizenship and its contents, nor did it say how state citizenship was related, and whether one trumped the other (p. 12, 16). Frost’s first chapter, “Citizen Slave”, contrasts the quest for African American Hiram Rhodes Revel to assume the Senate seat he was elected to, and the restoration of citizenship to Confederates Robert E. Lee and Jefferson Davis, two who had taken up arms against the United States (p. 47). That comparison aptly illustrates the racist double standard of American citizenship.
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These two books have overwhelmingly more strengths than weaknesses. And no book can do all things. The broad temporal coverage of these two books means that the authors had to make judgments of inclusion and emphasis of concepts and elements central to their narrative and others that would be covered in passing. Some readers will disagree with their choices. Here are some of my quibbles.
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Full disclosure, as someone writing a book on a parallel topic, I would have liked to have seen more theorizing about the distinct and intersectional effects of citizenship in the Frost book, although there are some. For example, Frost observes that states were discriminating against women including, “enabled their husbands to take their wages; barred women from inheriting property, serving as trustees to their family’s estates, or obtaining custody of their children upon divorce; prohibited women from entering a variety of professions; and excluded them from serving on juries or being witnesses in court” (p. 107). All true. Coverture and the public/private sphere ideologies created gendered conceptions of citizenship for women. But, the logic of excluding Black people, Asian Americans, Latinx Americans and Native people are quite distinct. An exposition of these theories is not the aim of the Frost book, nor should it be. Researchers and teachers can read and assign the Frost book with other books and articles.
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The Nackenoff and Novkov book includes a tremendous amount of historical material that provides political, historical, and legal context for the Wong Kim Ark decision. The teacher in me marveled at how well they were able to synthesize that information into a clear and engaging narrative. The scholar in me appreciated the inclusion of various dimensions of citizenship, including Native citizenship and implications for the U.S. territories. But, I would have liked to have seen a more sustained discussion of Indian citizenship that acknowledged that Indigenous people did not uniformly agree on the desirability of formal U.S. citizenship. Some Natives believed U.S. citizenship, as conferred by the Indian Citizenship Act of 1924, was preferable to the paternalistic status of being a “ward of the state”; others rejected U.S. citizenship as a threat and U.S. infringement on Native sovereignty. Various skeptics believed the designation was conditioned on forced assimilation and/or never delivered on full citizenship. Indian citizenship in the United States is itself a complex subject, and one cannot expect deep coverage in a book centered on the birthright citizenship of a native-born Chinese man. In classes on American Citizenship or U.S. Immigration Politics, with the Nackenoff and Novkov book, one could assign Alexandra Wilkin and/or K. Tsianina Lomawaima to cover that dimension of citizenship (Watkins 1995, p. 383 and Lomawaima 2013, p. 343).
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A final high point of both books is that although both books are deeply historical, they end with the contemporary relevance of citizenship debates in American politics. Doing so underscores that the scope of citizenship continues to be contested and is a legal status that retains the potential to be weaponized against politically unpopular groups. Today’s targets include: the native-born children of undocumented immigrants, children of birth tourists, people living in U.S. territories, the first mixed-race President and Vice President who are children of immigrants, native-born citizens who do not have documentary proof of citizenship, and naturalized citizens who may have made errors in their paperwork. Both books led this reader, and probably others, to the conclusion, “[i]f U.S. citizenship has been so arbitrary and biased, maybe the nation should not make basic rights and protections contingent upon such a flimsy foundation.”
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On balance, whether one is a specialist in the field of U.S. citizenship and immigration policy and law, or a newcomer hoping to learn more, there is something valuable and new for you. Both books deliver a textured understanding of the unsteady development of American citizenship, and will be fantastic additions to one’s syllabi or works cited pages.
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CASES:
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DRED SCOTT V. SANFORD, 60 U.S. 393 (1857)
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CHAE CHAN PING V. U.S., 112 U.S. 580 (1889)
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REFERENCES:
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Arendt, Hannah. 1976. THE ORIGINS OF TOTALITARIANISM. New York: A Harvest Book.
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Cohen, Elizabeth F. 2018. THE POLITICAL VALUE OF TIME: CITIZENSHIP, DURATION, AND DEMOCRATIC JUSTICE. New York: Cambridge University Press.
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Kettner, James H. 2005. DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870. North Carolina: Omohundro Institute and University of North Carolina Press.
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Lomawaima, K. Tsianina. 2013. “The Mutuality of Citizenship and Sovereignty: The Society of American Indians and the Battle to Inherit America”, AMERICAN INDIAN QUARTERLY, Vol. 37, No. 3 pp. 333-351.
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Witkin, Alexandra. 1995. “To Silence a Drum: the Impositions of United States Citizenship on Native Peoples”, HISTORICAL REFLECTIONS/RÉFLEXIONS HISTORIQUES, Vol. 21, No. 2, pp 353-383.
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© Copyright 2023 by author, Anna O. Law.<br />
<br />Unknownnoreply@blogger.com