THE PERSISTENT ADVOCATE AND THE USE OF FORCE: THE IMPACT OF THE UNITED STATES UPON THE JUS AD BELLUM IN THE POST-COLD WAR ERA

by Christian Henderson. Surrey England: Ashgate Publishing, 2011. 226pp. Cloth £65.00/$124.95. ISBN: 9781409401735. Kindle Edition $99.96. ISBN: 1409401731.

Reviewed by Walter J. Kendall III, The John Marshall Law School, Chicago, Illinois. Email: 7kendall [at] jmls.edu.

pp.364-369

STRETCHING THE RULES; BREAKING THE LAW; OR NEITHER?

Professor Henderson’s book could not be more timely. The United States has killed Osama bin Laden in questionable circumstances, and it played a significant role in formulating U.N. policy towards the Qaddafi regime in Libya. Each may well influence the understanding of international law.

Professor Henderson, whose book title is a riff on the customary international law concept of “persistent objector,” studies in a detailed chronological way the engagement of the U.S. with the sources of international law especially in the “Iraq context.” In this context he sees the U.S. as a “persistent advocate” of the unilateral determination of authority to use force, and also of the enlargement of the concept of self-defense.

In the Foreword Nigel White asserts Henderson sees 1947 U.N. consensus as “dated.” White sees the heart of the book as an argument against unilateralism and for a consensus developed by an inclusive interpretive community as the source of international norms. Henderson himself sees the U.S. as a hegemonic unilateral force affecting this interpretive community. The question he asks is whether it thereby has changed the law of jus ad bellum. After presenting the text book understanding of the law on the authority to use force and self-defense he critically presents U.S. thinking and actions in these areas since the end of the Cold War. He concludes his thoroughly researched and subtlly argued book by answering his question “not yet.”

It must be emphasized that neither the book nor the review addresses the very contentious questions around the U.S. constitutional allocation of the war power.

Henderson considers the consensus sources of international law as set out in Article 38 of the statute of the International Court of Justice

• international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  
• international custom, as evidence of a general practice accepted as law;
  
• the general principles of law recognized by civilized nations;
  
• subject to the provisions of Article 59, judicial decisions and the teachings of the most qualified publicists of the [*365] nations, as subsidiary means for the determination of rules of law.

LAW AND MAGIC: A COLLECTION OF ESSAYS

by Christine A. Corcos (ed). Durham: Carolina University Press, 2010. 444pp. Cloth: $40.00. ISBN: 9781594603556.

Reviewed by: Curtis Fogel, Department of Interdisciplinary Studies, Lakehead University- Orillia Campus, email: cafogel [at] lakeheadu.ca.

pp.362-363

LAW AND MAGIC explores a unique and interesting area of legal study that covers a breadth of topics from the historical persecution of alleged witches to contemporary cases of intellectual property law surrounding magic tricks. This is an important collection of essays that provides a definitive scholarly source on research into the various interconnections between law and magic. Written with wit and humour, the essays are a fascinating read for legal and non-legal scholars alike.

The editor of this collection, Christine Corcos, is an Associate Professor in the Department of Law and the Department of Women’s and Gender Studies at Louisiana State University. Corcos has developed an Internet blog on the subject of law and magic, and has published numerous articles on media law, European legal history, as well as intersections between law and popular culture. In addition to Corcos, twenty-four other authors contributed to this collection. The vast majority of these authors are lawyers and/or professors of law. Other contributing authors teach and conduct research in Communication Studies, Social Policy, Journalism, History, and Interdisciplinary Studies. A strength of this collection is the sheer volume of chapters written by well-qualified authors across the United States, England, and Germany. One author in particular, Loren Smith, is both a Senior Judge in the United States Court of Claims and an accomplished magician.

In the opening section of the book, contributing authors explore the intersections of law and magic in the areas of free speech and religion. In one chapter, Julie Cromer, professor at Thomas Jefferson School of Law, details the historical and current laws in the United States pertaining to tarot card reading. While outlawed in the sixteen and seventeenth centuries due to its assumed connection to witchcraft, then due to eighteenth and nineteenth century laws forbidding fortune-telling, the modern era of Tarot law is characterized as having less severe legal control. When contemporary laws and by-laws have been enforced to restrict Tarot reading, Cromer reveals how they have been struck down for violating the First Amendment of the United States Constitution.

FOREIGN FANATICISM AND AMERICAN CONSTITUTIONAL VALUES

by Rodney Jay Blackman. Durham: Carolina Academic Press, 2010. 480pp. Paper. $45.00. ISBN: 9781594605130.

Reviewed by John E. Finn, Department of Government, Wesleyan University. Email: Jfinn [at] wesleyan.edu.

pp.358-361

This is an odd book. Its central thesis is that the kinds of destructive fanaticism represented by the attacks on the United States on 9/11, and which have characterized political movements as diverse as those associated with Hitler, Robespierre, Stalin, Mao, as well as various forms of religious fanaticism, have been avoided in the United States by virtue of “the institutional and other restraints created by the Constitution, Bill of Rights and post-Civil War Amendments” of the U.S. Constitution (p. 305). The founders, Blackman argues, sought to create institutions that check the inevitable tendency of human beings to abuse power, especially in service of utopian ends. “By contrast, there was no institutional restraint when Christian or Islamic leaders persecuted minorities, or when Robespierre, Hitler, Lenin, Stalin or Mao held power” (p. 305).

The book begins with a straightforward account of its thesis and some of the possible objections to it, including the obvious retort that its understanding and conceptualization of fanaticism is so broad – encompassing not only various forms of secular fanaticism but diverse religious forms as well – that it lacks any real meaning. Additionally, one might argue that the United States has its own long and not entirely successful experience with fanaticism, as evidenced in part by the Civil War. Unfortunately, these criticisms do not get as much attention as they warrant. Blackman’s response to the Civil War objection, for example, is simply to conclude that “the failure of our constitutional system to peaceably resolve the conflict … was not due to the failure of the system, but rather would have occurred regardless of the system. Sometimes human conflicts involve such fundamental issues and positions so passionately held that no governmental system, even one generally workable, can peaceably resolve them” (p. 22). One might reply that in the other cases of fanaticism Blackman addresses, the failure likewise was not of constitutional mechanisms, for in all of these cases the passions stirred would have besieged such restraints. Or, put another way, the successes of the United States Constitution and its institutional limits is simply a function of the relative absence of fanaticism itself; when fanaticism has thrived in the United States, it has overwhelmed the same constitutional limitations Blackman lauds.

The bulk of the book is taken up by historical treatments of the American, French, Nazi, Soviet, and Chinese revolutions. Each was chosen because it represents a case of fanaticism, defined too broadly as “willingness to kill people because of who they are rather than what they’ve done” (p. 9). (Blackman’s failure to address any of the rich [*359] literature on the concept of fanaticism is a significant flaw.) These chapters are idiosyncratic historical accounts developed in support of the thesis; they cover no new ground. The chapter on the American revolution, for example, amounts to little more than cheerleading for the founders and, to a lesser extent, the Supreme Court. Each of the other chapters begins and ends with a basic assessment of why, in contrast to the successful American revolution, these other revolutions must be considered failures. And in general the explanation is the same: In each case revolutionary leaders sought to promote a utopian vision that required the concentration of power in service of that vision, whereas in the United States, the founders had more modest goals and more sanguine views about human nature.

CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN

by Barbara Ann Atwood. Durham, NC: Carolina Academic Press, 2010. 336pp. Paper $42.00. ISBN: 9781594605222.

Reviewed by Cynthia H. DeBose (formerly Hawkins-León), College of Law, Stetson University. Email: cdebose [at] law.stetson.edu.

pp.354-357

‘Wakanyeja is our Lakota word for child. It is made up of two parts, wakanyan (sacred) and najin (to stand): so for us a child stands sacred in the world, a special gift from the Creator.’

‘Diné bi beenahaz’ aanii – children must be treated with the greatest of respect’

‘Kill the Indian in order to save the Man. … Transfer the savage-born infant to the surroundings of civilization, and he will grow to possess a civilized language and habit.’

In CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN, Barbara Ann Atwood provides a thorough and compelling discussion of US statutory law, case law and policy, and their effects upon American Indian tribal law, policy and culture in general, and specifically their dual application to American Indian children. In this well-researched treatise, Atwood painstakingly documents and analyzes over 200 years of US federal and state child welfare policy and procedure regulating the custody placement and adoption of the American Indian child.

Professor Atwood has been publishing scholarly legal articles in the subject-matter area of American Indian family law and policy for over 20 years. Although she has included portions of her prior works in this book, the articles are in substantially revised form – this book is far from a mere “re-hash” or compilation of her prior work.

From the book’s first sentence in the “Introduction” – “When sovereigns compete to determine the interests of children, fundamental questions of power and legitimacy inevitably arise” –Atwood sets the clear tone of the book. She confirms an underlying premise that “American law should respect the distinct worldviews held by Indian tribes and their richly diverse approaches to community, family, parenting, child welfare, and adoption [which are all divergent from US norms].” Early on, Atwood states that the Indian Child Welfare Act of 1978 “compels respect for Native culture within the United States.” Thereby she signals her plan to provide a well-documented critique of US federal, state and American Indian tribal child welfare law and policy. From chapter to chapter, this goal is met.

LAWYERS AND FIDELITY TO LAW

by W. Bradley Wendel. Princeton NJ: Princeton University Press, 2010. 286pp. Cloth $35.00/£24.95. ISBN: 9780691137193. e-Book. $35.00. ISBN: 9781400836581.

Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.

pp.348-353

No doubt, LPBR readers have heard the joke:
Question: How can you tell that a lawyer is lying?
Answer: His lips are moving.

Cornell law professor, W. Bradley Wendel, certainly has heard the quip (see p.209). The jibe would be beyond stale were it not grounded in the public’s widely shared “conclusion” (p.2), the underpinnings of which Professor Wendel scrutinizes in the book under review, that “lawyers deserve the labels of liars, cheats, and even torturers” (p.2). Wendel agrees – some lawyers occasionally do behave unethically. Yet he inquires, what defines their transgression? Is unethical behavior a matter of immorality, of personal irresponsibility, of being unjust? Is it confined to “a narrow definition of role obligations” – of “tactics and prudence” (p.30)? Or does ethical violation entail something else entirely? Wendel shifts “the evaluative frame of reference” (p.4) from both the conventional, everyday, understanding of lawyers’ obligations, as well as from the legal profession’s own attenuated, insular standards. He rejects explaining lawyers’ ethics as either a matter of doing good or of doing right by clients, in lieu of seeking to redefine legal professional ethics as fidelity to law. “[T]he law does not merely set the limits of permissible advocacy,” he argues, “but constitutes the lawyer’s role” (p.8). In a manner akin to being officers of the court, Wendel’s ethical lawyers are first and foremost agents of the law. For him, ethical lawyering is law-ful lawyering (however circular that appears at first glance). Wendel might recast the threadbare, persistent joke in thought-provoking, if less amusing, terms: Question: How can you tell that a lawyer is unethical? Answer: Her “reason-giving” (p.202) is “not plausible” (pp.194-195).

Reason giving? Not plausible? Grappling with these ideas plunges the reader into a densely argued “exercise in applied moral and political philosophy” (p.7) wherein Wendel ties ethical lawyering to legality – namely to “a scheme of legal entitlements and constraints [having been evaluated] from the perspective of one who regards them as creating reasons for action as such . . .” (p.202). In turn, Wendel links legality’s integrity to legitimacy, and ultimately to political authority, i.e., to “the view[s] actually reached by the community through established lawmaking procedures” (p.202). Ethical lawyering, thus, is grounded in providing plausible legal reasons to convert a client’s particularized interests into entitlements – plausibility being derived from Wendel’s argument that “the authority of the law is founded in social practices . . .” (pp.196-197). He explains: [*349]

Law is the enactment of a political community, and a legal judgment must therefore make reference to standards that transcend the individual making the judgment. . . . [T]he whole point of the law is to differentiate between something you can get away with, and something that is authorized, as a matter of right, and regulated by rules of general application . . . (p.196).

BATTLE OVER THE BENCH: SENATORS, INTEREST GROUPS, AND LOWER COURT CONFIRMATIONS

by Amy Steigerwalt. Charlottesville, VA: University of Virginia Press, 2010. 304pp. Cloth $45.00. ISBN: 9780813929941.

Reviewed by Richard L. Vining, Jr., Department of Political Science, University of Georgia. E-mail: rvining [at] uga.edu.

pp.345-347

Since the Reagan administration transformed the selection criteria for lower federal judges, emphasizing policy over patronage, nominations to lower courts have become more contentious. This observation has inspired a wave of scholarship examining how potential jurists are selected by the president and treated by senators. Goldman (1997) provided a seminal study of lower court selection since the 1930s. Later contributions by Bell (2002) and Scherer (2005) updated this literature to highlight the growing role of political activists in the lower court appointment process. Amy Steigerwalt’s BATTLE OVER THE BENCH is a significant contribution to this body of research. Steigerwalt analyzes opposition to circuit court nominees from 1985 to 2006 by examining newspaper archives, interviewing Senate staffers and political activists, and performing quantitative analysis. Her findings highlight the extent to which judicial nominees are part of normal politics. She also demonstrates that the conventional wisdom overestimates the role of ideology in obstruction of the confirmation process.

The central theoretical contribution of BATTLE OVER THE BENCH is a “four tracks framework.” Steigerwalt characterizes judicial nominations as analogous to trains traveling on a track until reaching a switch point. Once there, they can either proceed on their current routes or change tracks. These pathways are labeled the noncontroversial track, senatorial courtesy track, private political track (i.e., nominees are obstructed by parliamentary procedures), and public partisan track. Steigerwalt explains that the routes traveled by nominees are fluid; they enter and exit a track as dictated by their treatment in the political environment. This framework is relatively simple but describes the realities of the confirmation process rather well. Much of the book is devoted to why nominations enter or leave a track using both qualitative and quantitative evidence.

In the opening chapters Steigerwalt explores the four tracks framework in great detail. How and when nominees reach one track or shift to another are consequential because the four tracks are associated with particular outcomes. Seventy-seven percent of nominees in Steigerwalt’s data stayed on the noncontroversial track and were not opposed. These individuals were confirmed quickly. The remaining nominees traveled one or more of the other tracks. Those on the senatorial courtesy track (7.4 percent) recovered less than half the time from opposition by their home-state senators. Conversely, nominees on the private political track were usually held captive [*346] temporarily by unrelated disputes and were eventually confirmed. About twenty percent of nominees reached the public partisan track resulting in long delays and overt opposition by senators and activists. Even among this group, Senate approval was more common than not. Sixty-one percent of nominees with active opponents were confirmed. Delay is far more common that defeat, but both depend on the track on which the nominee is situated. It is clear that not all obstruction of judicial nominees is created equal. In addition, nominees forced to one track may be able to course-correct if allowed by the contemporaneous political environment.

READING FOR THE LAW: BRITISH LITERARY HISTORY AND GENDER ADVOCACY

by Christine L. Krueger. Charlottesville, VA: University of Virginia Press, 2010. 288pp. Hardcover. $39.50. ISBN: 9780813928937.

Reviewed by M. Kelly Carr, Department of Communications Design, University of Baltimore. Email: kcarr [at] ubalt.edu.

pp.337-344

READING FOR THE LAW is an ambitious project, requiring similar ambitions from the reader. It is well worth the effort. Pulling from a wide and impressive array of primary source materials from seventeenth- to nineteenth-century Britain, Christine Krueger weaves into their descriptions historical and critical contextualizations that represent the best of what the Law and Literature enterprise has to offer. Indeed, this is her professed main goal (although she chases quite a few secondary goals in doing so): “the principal question I address is how ‘reading for the law’ as literary history can contribute to the progressive educational purposes for which the Law and Literature movement was founded” (p.1). She concentrates mostly on eighteenth and nineteenth century English law, in various iterations: witchcraft, insanity, adultery, indecent assault, infanticide, juvenile laws, and property laws, to name a few.

The strength of this book comes from Krueger’s literary historian’s approach. Krueger makes a persuasive argument about the benefits of this approach to understanding law and literature by revealing, through a combination of literary accounts and print and legal records, an eighteenth- and nineteenth-century British judicial system “prone to aestheticism and sentimentality” (p.21). This tendency, combined with lack of access, forced disenfranchised people with valid empirical claims to resort to narratives in order to be heard – and even then, not with happy outcomes (p.21). Given this, she posits the question, “How is it…that we have come to see storytelling and legal reasoning as mutually exclusive, so much so that a whole movement now devotes itself to reconnecting them?” (p.21) Remembering the circumstances that motivated their separation (she’s alluding here to the turn to realism and objectivism), “should we desire their reunion?” (p.21) In asking these questions, Krueger attempts to revise a long-held assumption of Law and Literature scholarship – the belief that combining the two unleashes the humanizing power of revealing individual subjectivities within legal institutions – by providing a broader lens through which readers can view their interrelationship.

Much of her book is spent evidencing the complicated role of narrative in legal thought and discourse, including: evolving Victorian literary standards such as omniscient narration and realist fiction; the emergence of witchcraft as an evidence-sparse crime reliant upon narratives for conviction; epistemological shifts from romanticism to realism both in literature and the law; government agencies whose primary task was to listen to stories of people [*338] incarcerated in insane asylums; and the use of “cover stories” to shelter certain crimes from prosecution. These uses of narrative range from mildly emancipatory and agency-building to fairly ineffective, and her analysis is always tied to larger social, political, and gender histories that pleasantly blur the causal lines sometimes drawn by comparative scholars. In several chapters, Krueger takes to task feminist advocates who would use narrative jurisprudence as an “antidote” to masculinist modes of reasoning, reminding readers that “no mode of representation enjoys special powers of advocacy” (p.51). Rather, literary techniques earn critical treatment because they are just as culturally bound as are legal processes; literary treatment is not “an autonomous aesthetic subject, but is itself historically contingent” (p.51). Krueger shows that a deeper investigation of the interrelations between literature and legal discourses, while carefully considering the historical context in which they acted, can help us understand both the limitations of specific attempts at “outsider advocacy” and to find evidence of those attempts, within literature, that are not represented in formal legal discourse.

THE INTERNATIONAL COURT OF JUSTICE AND SELF-DEFENSE IN INTERNATIONAL LAW

by James A. Green. Oxford and Portland, Oregon: Hart Publishing, 2009. 246pp. Hardback. £47.00/$94.00. ISBN: 9781841138763.

Reviewed by Daniel C. Turack, Capital University Law School. Email: DTurack [at] law.capital.edu.

pp.335-336

This book is an outgrowth of James A. Green’s Ph.D. thesis at the University of Nottingham. The attacks on the United States on 11 September 2001, and subsequent intervention of coalition forces in Afghanistan in 2001 and Iraq in 2003, have had an impact on the use of force (the jus ad bellum). Associated with the jus ad bellum is the universally accepted inherent right of self-defense. Increased scrutiny of this area of the law has involved the jurisprudential attention of the International Court of Justice (ICJ). This book is devoted to an examination of the relationship between the ICJ and the legal rules that comprise this area of international law.

Green begins with Article 51 of the United Nations (UN) Charter, the codification of the right of self-defense, both individually and collectively. However, he quickly draws the reader’s attention to universally accepted legal criteria that are prevalent in customary international law, but not present in Article 51, namely, the requirements of necessity and proportionality. His study considers the relationship between Article 51 and the customary rules as a central theme, and further attends to how treaty law and custom interrelate in this field.

The first time that the ICJ handed down a merits judgment on self-defense was in the 1986 Case of Military and Paramilitary Activities in and against NICARAGUA v. UNITED STATES OF AMERICA, that represented a complete assessment of the concept. Ten years later, the ICJ dealt substantively with self-defense in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. This opinion was followed in 2003, in the contentious Case Concerning Oil Platforms, the Advisory Opinion of 2004, on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and the contentious Case of 2005, on Armed Activities on the Territory of the Congo (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA).

PRIVATE LAWYERS AND THE PUBLIC INTEREST: THE EVOLVING ROLE OF PRO BONO IN THE LEGAL PROFESSION

by Robert Granfield and Lynn Mather (eds). New York: Oxford University Press, 2009. 352pp. Cloth. $75.00/£50.00. ISBN: 9780195386073.

Reviewed by Mark C. Miller, Department of Political Science, Clark University. Mmiller [at] clarku.edu.

pp.332-334

This edited volume presents cutting edge research on how and why lawyers in private practice carry out various pro bono activities. As Judge Robert A. Katzmann states in his Foreword to the book, “In this stellar collection, Robert Granfield and Lynn Mather bring together scholars concerned about the role of pro bono in the legal profession – its history, organization, strategies and structure.” Like all edited works, some of the chapters are stronger than others. Nevertheless, it is an important addition to the literature in this area, with research coming from a variety of disciplinary perspectives including political science, sociology, law professors, and other socio-legal scholars. The chapter authors also use a wide variety of methodologies in their research. The book has 15 chapters, including the introduction. Thus, this wide-ranging collected volume will join some of the classics in the field of pro bono law work such as Katzmann (1995) and Rhode (2005).

The collection begins with an introductory chapter by the editors of this volume (which grew out of a conference held at the Baldy Center for Law and Social Policy located at the State University of New York at Buffalo). Granfield and Mather explore some of the pedagogical, economic, cultural, and political dimensions of pro bono work among private sector lawyers. The chapter also notes that the U.S. is unusual around the world in depending so heavily on private lawyers to provide legal services to the poor and other underrepresented groups in civil cases.

The next several chapters examine pro bono work in the law school setting. In chapter 2, Cynthia Adcock provides a history of pro bono activities among law students. This chapter examines student-initiated programs, optional and required pro bono opportunities provided by law schools, and the role of the ABA and other groups in promoting pro bono activities for law students. Since 2005, the ABA has required that law schools offer substantial pro bono opportunities for their students as part of the law school curriculum. In chapter 3, Robert Granfield and Philip Veliz gather lawyers’ reflections on their mandatory pro bono experiences in law school. The data for this chapter are based on a survey of 474 graduates of three law schools that were in the process of implementing mandatory pro bono requirements for graduation in the 1990s. The study found significant differences in attitudes toward pro bono work depending on which law school the lawyers attended and especially the prestige level of that law school. In chapter 4, Deborah A. Schmedemann [*333] further examines the impact of law school pro bono opportunities for lawyers after they graduate. This chapter draws heavily from academic literature which studies volunteering and community-based service learning. The findings are that lawyers and non-lawyers are very similar in their attitudes toward volunteering and community service as part of their professional lives.

ASIAN LEGAL REVIVALS: LAWYERS IN THE SHADOW OF EMPIRE

by Yves Dezalay and Bryant G. Garth. Chicago: University of Chicago Press, 2010. 304pp. Cloth. ISBN: 9780226144627. Paper. $27.50. ISBN: 9780226144634. E-book. $7.00. ISBN: 9780226144665.

Reviewed by David Gurnham, Lecturer in Healthcare Law and Ethics, School of Law, University of Manchester, England, U.K. Email: david.gurnham [at] manchester.ac.uk.

pp.329-331

The worldwide economic downturn precipitated by the collapse of financial institutions in the U.S. on the one hand, and more recent civil and political unrest in North African and Arab states on the other, may be quite distinct developments. However, they have each brought questions relating to the role of law and the legal profession to the fore. Such events underline the need for legitimizing structures and procedures in arenas of conflict, collapse and transition, and it is in being placed to manage these structures of legitimacy that the gives prominence to lawyers and their functions as brokers, bureaucrats and advocates. Yves Dezalay and Brayant G. Grant’s new book, ASIAN LEGAL REVIVALS, which insightfully draws together analyses of the role of lawyers with respect to economic and political power in a number of Asian countries, is a timely and welcome contribution to a volatile landscape. Significantly, it also provokes pertinent questions such as what good are lawyers, and what public good does a legal education bring? Is it realistic to expect from lawyers more than simply the desire to profit by serving the whims of those that can pay them the most? While ASIAN LEGAL REVIVALS is not intended to be a defense of the legal profession in these respects (indeed Dezalay and Garth make it clear that lawyers have often been markedly ineffective in exerting a positive influence on strong, authoritarian states), its highlighting of the central role of lawyers in the story of Asian nation states after colonialism certainly answers the latter question in the affirmative. For its focus on the legal profession in its international, colonial and postcolonial contexts, ASIAN LEGAL REVIVALS should be of interest to anyone concerned about the historical and geographical dimensions of questions of political power, capitalism and the machinery of legal practice.

Dezalay and Garth focus their study on those countries that constituted the periphery of imperial power in Asia: India, Malaysia, Singapore, South Korea, Indonesia and the Philippines. These are nations that have emerged from the “shadow” of empire, and the authors’ concern is to trace the role of lawyers (and judges) in this emergence. China and Japan are of course the two regional powerhouses notably absent from this study, except as an example of historic imperial power and influence over Korea (in the case of Japan) and of present economic and political control over Hong Kong (China). Dezalay and Garth are interested in the first place with the identity of lawyers on the periphery of empire, and what these identities tell us about the role of law in the wider developments of Asian power [*330] structures. What sort of people were attracted to the law profession in colonial times, what attracted them in terms of types of work and reward, and how do these factors compare to their descendents in the independent nations? Dezalay and Garth skillfully weave personal accounts elicited in interviews, documentary evidence and a meta-study of existing histories of the region to bring to the fore the importance – inherited no doubt from colonial times – of class, social expectation and family ties, which in various ways have combined to produce legal elites. Organized around the intersecting themes of geography, historical epoch and specialism, the chapters of ASIAN LEGAL REVIVALS illuminate the cultural and political determinants of what it means to be part of an elite, and the ways in which this idea has changed according to the political arrangements in the countries since independence. Much of the book is given to the question of the extent to which lawyers (and by implication law) have contributed to developments in the relationships between the different organs of the state, and in particular to the prominence of democracy and the rule of law. The early chapters provide hope that the elite legal training grounds of, for example, London’s Inns of Court, attended by the sons of the upper echelons of colonized societies, would provide a sound basis for law in postcolonial Asian countries. However the story that emerges here of the nations breaking away from colonial rule is more often of a turn away from the rule of law towards authoritarianism. Dezalay and Garth draw attention to the development of law-schools as breeding-grounds for the men that would become the key players in independence, and also for peaceful and belligerent pressure for human rights. However, more often than not, the postcolonial supreme courts have been ineffective in the face of executive power that in many instances sought to use law and lawyers simply as means for legitimating their own tightening grip. A large portion of ASIAN LEGAL REVIVALS describes the inevitable degradation of the rule of law and of the reputation and make-up of the legal profession that have accompanied such cynical uses of law and lawyers.

IS OUR HOUSE IN ORDER?: CANADA’S IMPLEMENTATION OF INTERNATIONAL LAW

by Chios Carmody (ed). Montreal: McGill-Queen’s University Press, 2010. 336pp. Cloth. CA $95.00/US $95.00 ISBN: 9780773537538. Paper. CA $34.95/US $34.95. ISBN: 9780773538146.

Reviewed by Christopher Waters, Associate Dean, Faculty of Law, University of Windsor. Email: cwaters [at] uwindsor.ca.

pp.326-328

Several of the chapters in this book, edited by Chios Carmody, begin in the same vein: Canadians think of themselves as good international citizens. Among other things, we contribute to international peacekeeping and the work of the International Criminal Court, and have championed some worthy international initiatives, including the ban on anti-personnel landmines. Canadians have also played an important role in creating the international human rights regime; after all, a Canadian, John Humphreys, was one of the drafters of the Universal Declaration of Human Rights (let’s ignore the fact that Canada was initially opposed to the Declaration – every country needs its national myths). However, somewhere along the way we have departed from our legacy as major contributors to the rule of law in international affairs. Sometimes evidence of our legal decline has been on the international stage – transfers to torture of Afghan detainees for example – but also, and as importantly, on the domestic stage. As the book argues, we simply have not coherently or fully implemented our international obligations at home.

Various explanations are offered in the volume as to why there is a disconnect between Canada’s international obligations and our sometimes sketchy pattern of implementation. Two of the most commonly cited structural causes of – or excuses for – this disconnect are federalism and the executive’s exclusive role in signing and ratifying treaties. Treaties in Canada are not self-executing and, to be given actual effect, must be implemented by the level of government with the jurisdiction to do so, namely the federal government or the provinces. Thus, while the federal government enters into treaties, it may not have the power to implement them. Furthermore, the executive enters into treaties and can bind Canada without real parliamentary scrutiny.

The contributors to this book, however, suggest various ways to overcome or even redefine these apparent structural constraints. For starters, they suggest, the mechanism for federal-provincial consultation needs to be reinvigorated. Although consultation does happen currently, it does not happen in a sufficiently formalized and transparent manner. But the book goes beyond the federal-provincial dynamic and addresses a variety of actors with a role to play. These include courts, which have been timid in terms of their role in implementing both treaties and customary international law, as well as sub-state actors such as cities, private entities and the citizenry – although unfortunately the important role of the [*327] media in shaping public opinion is largely ignored (On the media’s failures to intelligently or consistently deal with international law in Canada and the consequent effect on Canadian public opinion, see Toope 2006). Furthermore, there are various ways to reduce any democratic deficit inherent in the federal executive’s ratification power. An obvious point once stated, but greater Parliamentary scrutiny over treaties prior to ratification is required in order to engage legislators and the public and truly “bring home” our international commitments.

POWER WITHOUT LAW: THE SUPREME COURT OF CANADA, THE MARSHALL DECISIONS, AND THE FAILURE OF JUDICIAL ACTIVISM

by Alex M. Cameron. Montreal: McGill-Queen’s University Press, 2009. 176pp. Cloth. CA $95.00/US $95.00. ISBN: 9780773535831. Paper. CA $29.95/US $29.95. ISBN: 9780773536104.

Reviewed by James B. Kelly, Department of Political Science, Concordia University, Montreal. Email: james.kelly [at] concordia.ca.

pp.323-325

The vantage point of this author is particularly interesting, and as a result, it is not a traditional academic treatment of judicial review and liberal constitutionalism. Specifically, Alex M. Cameron is a lawyer with the Department of Justice in the Canadian province of Nova Scotia, who has dealt with important aboriginal rights cases resulting from the Supreme Court of Canada’s (SCC) 1999 decision in R. v. MARSHALL (No. 1). Although not a participant in MARSHALL (No. 1), Cameron became a committed critic of this decision, arguing that the judgment of Justice Binnie was deeply flawed, outcome-oriented, and representative of the worst characteristics of judicial review. In the opinion of Cameron, Justice Binnie ‘invented history’ by substituting his reading of Mi’Kmaq treaty claims with what these claims actually conferred on these aboriginal peoples in regard to hunting and fishing rights guaranteed under section 35(1) of the Constitution Act, 1982. This book is a scathing critique of the 1999 MARSHALL decision and the role played by Justice Binnie. In particular, Cameron argues that the SCC exceeded the appropriate role of the highest appellant court, as it overturned the factual basis of the case at the trial court level, accepted evidence not considered at the trial court level, which resulted in the SCC not reviewing a lower court decision, but allowing for a new case to be argued before it. Thus, MARSHALL 1999 was simply the vehicle in which the SCC, and Justice Binnie, travelled on route to an extreme case of judicial activism and outcome-oriented judicial review.

There are several valuable dimensions to this study. First, the author provides a very detailed discussion of the MARSHALL decision, Nova Scotia treaty relations with the Mi’Kmaq peoples, and attempts to provide an analysis of the later implications of this decision for indigenous-settler relations in modern day Nova Scotia. Secondly, it provides a much needed vantage point in the judicial politics scholarship, as it is written by a practioner and not a legal academic. As such, it provides insight into the professional constraints placed on those who will conduct future litigation in the context of previous rulings.

Despite these important benefits provided by this book, there are a number of fundamental flaws that significantly overshadow its value. Unfortunately, these are quite serious academic flaws that question the underlying critique presented by Cameron – that the SCC should simply [*324] apply the law, and further, should not engage in policy construction through its decisions. Although Cameron does not explicitly articulate it as such, these are the two issues driving his study: first, that the rejection of textualism by the SCC is the root of the MARSHALL policy quandary; and secondly, that significant policy distortion has occurred which undermines Nova Scotia’s ability to manage an important natural resource by negatively affecting aboriginal-settler relations.

THE END OF INEQUALITY: ONE PERSON, ONE VOTE AND THE TRANSFORMATION OF AMERICAN POLITICS

by Stephen Ansolabehere and James N. Snyder. New York: W. W. Norton and Company, 2008. 336pp. Paperback. $19.38. ISBN: 9780393931037.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.

pp.317-322

In his widely acclaimed 1991 book HOLLOW HOPE, Gerald Rosenberg made the persuasive argument that the Supreme Court of the United States has little power in bringing about social change. Rosenberg took what he called the Constrained Court view, and contended that several factors such as the limits on hearing social reform cases, formidable powers vested in the Constitution to the other branches of government, and the inability of courts to enact policy, all conspire to restrict the influence of the Court to effect social change. In Hamilton’s famous phrase from Federalist 78, the Court has nothing more than the power of “judgment” at its disposal: even when the Court speaks, it takes the cooperation and assistance of the other branches to carry out the decision. As proof, Rosenberg analyzed the impact of landmark cases such as BROWN v. BOARD OF EDUCATION (1954) and ROE v. WADE (1973) and finding that the decisions themselves absent government action by “the political branches” did little to advance the social reforms the decisions initiated.

Rosenberg’s thesis continues to generate much scholarship on the nature and power of the courts – not to mention even a little criticism. Two decades later, the debate still rages on whether the courts are outfitted to deal successfully with social change. Witness, for example, the legal confusion across the country when it comes to the issue of marriage equality – a topic that Rosenberg explores in the updated 2008 edition of HOLLOW HOPE. Whether the Supreme Court is well-equipped or not to bring about social change, Stephen Ansolabehere and James Snyder argue forcefully in their 2008 book THE END OF INEQUALITY: ONE PERSON, ONE VOTE, AND THE TRANSFORMATION OF AMERICAN POLITICS that the Supreme Court is in fact well-positioned to bring about political change. Where Rosenberg took a Constrained Court view, Ansolabehere and Snyder put forward a Dynamic Court perspective. Further, the authors contend that the courts should venture into what Justice Felix Frankfurter called the “political thicket” whenever or wherever political inequality persists.

THE END OF INEQUALITY focuses on the “quiet revolution” which occurred in the four decades after the landmark BAKER v. CARR decision of 1962. According to Ansolabehere and Snyder, BAKER v. CARR presents the political scientist with the closest thing to a “natural experiment” (pp.13-18) one could find in the political world. For the first five decades of the twentieth century, most state legislative districts across the country remained apportioned [*318] in accordance with the precepts, population and power structure of a rural/agrarian society. By the 1960s, however, the United States had become a predominantly urban/suburban society; population had shifted to metropolitan areas but political power had not followed. BAKER v. CARR, and the ensuing cases, would change the malapportionment of state legislative districts all across the country with an elegantly parsimonious phrase: one person, one vote. For Ansolabehere and Snyder, this sets up a perfect political experiment – a before and after scenario rarely available in American politics.

THE RIGHT TO LIFE AND THE VALUE OF LIFE: ORIENTATIONS IN LAW, POLITICS AND ETHICS

by Jon Yorke (ed). Surrey, England: Ashgate Publishing, 2010. 464pp. Hardback. £75.00/$144.95. ISBN: 9780754677611.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University. Email: Matwell [at] radford.edu.

pp.313-316

At first glance one might expect a book entitled THE RIGHT TO LIFE AND THE VALUE OF LIFE to focus on abortion issues. Indeed if it had been published in the United States and featured the work of American scholars, that expectation might be borne out. That supposition shows how much the terminology of life has come to be monopolized by a single issue in the United States. This collection, however, has a much broader focus which includes matters of war, end of life decisions, ethical choices involving health care, capital punishment, and reproductive technologies, bounded by discussions of life issues within the context of political theory. Seventeen scholars from a variety of disciplines and perspectives have contributed to the volume. Not surprisingly, for this reader, the articles varied in interest. A few seemed extremely specialized, although none was inappropriate for inclusion in such an anthology.

The concept of life has many facets. One may speak of biological life, of political life, of life as a medical term or as a subject for philosophical inquiry. Jon Yorke, as editor of THE RIGHT TO LIFE AND THE VALUE OF LIFE argues that the many meanings of the term require a multidisciplinary approach, thus the contributors include law professors, ethicists, political philosophers, sociologists, and scientists. He further asserts in the introduction that far from being black and white, questions about the right to life and the value of life have become increasingly nuanced, partly because technology has altered the possibilities of extending or prolonging life, and also because governments and individuals have increasing opportunities to make decisions regarding life and death. There is wide disagreement over the scope of the right to life. For example, the state’s duty to protect life includes both the responsibility to prevent the unlawful deprivation of life and the requirement to take reasonable measures to protect life. Such policies and decisions require a great deal of information and transparency. This volume may be seen as an effort to illuminate those difficult questions.

The first section of THE RIGHT TO LIFE includes articles dealing with theoretical approaches to life and death. A chapter by Mark Olssen discusses life as continuance, a pursuit of well-being but always within a political context. He seems to be arguing that the continuance of life involves the ability to flourish and prosper. The determination of life as good, bad, or indifferent is connected, it seems, with engagement, not just with survival. Life as good, bad, or indifferent (as determined by “temporary closures around norms”) guides the legitimate behavior of government – [*314] defining what the state should promote or forbid and what decisions should be left to the individual without the intervention of a government. The second chapter, a critique of Agamben’s HOMO SACER by Andrew Norris, seems a particularly challenging piece as it first assumes a depth of familiarity with the Italian political philosopher’s work and then refutes Agamben’s analysis. The third theoretical chapter, “The Value of Life: Somatic Ethics and the Spirit of Biocapital” by Nicolas Rose is an argument for the inclusion of ethical considerations of “health” in its broadest sense in the search for life enhancing technologies and the financial rewards that accompany such discoveries. The final piece in the section on theory is both creative and accessible: “How We Value Life: George Bailey and the Life Not Worthy of Being Lived” uses the classic film, “It’s a Wonderful Life” as an illustration of how two concepts, the Sanctity of Life and the Quality of Life, may be synthesized rather than seen in opposition. One suggests that life has an inherent value as an absolute good. The second formulation holds that life is valuable as it allows one to do things of value. Stephen Smith argues that one can analyze the fictional life of George Bailey to demonstrate that a life may embody both values. Of all the articles in the volume, this one could easily be incorporated into a classroom discussion of how to think about right to life issues.

THE LANGUAGE OF STATUTES: LAWS AND THEIR INTERPRETATION

by Lawrence M. Solan. Chicago: The University of Chicago Press, 2010. 304pp. Cloth $45.00. ISBN: 9780226767963. E-book $7.00-$40.00. ISBN: 9780226767987.

Reviewed by Brian Christopher Jones, School of Law, University of Stirling. Email: b.c.jones [at] stir.ac.uk.

pp.308-312

Historically law has often been perceived as a sociological endeavor. Laws are written; bills are approved; statutes are codified; law is enforced; and judges judge. Yet within this (admittedly simplified) progression there lies an incredibly complex and interconnected web of how law itself operates. Gazing through a sociological lens, one can come to a deep understanding of law. Yet over the past few decades, the legal establishment has decided to do something quite profound: embrace psychological research about the law and research that relates to the law. And when this research is performed well, a much deeper understanding of law emerges than the previous picture taken alone could provide. Lawrence M. Solan has figured this much out, and, accordingly, THE LANGUAGE OF STATUTES provides a richly detailed analysis regarding the thorny business of statutory interpretation.

For all the politicians, journalists, academics and others who commonly lambaste lawmakers and judges for the state of legislation and statutory interpretation, Mr. Solan has a message for you: law, generally, works quite well. Thus is the predominant theme of this intriguing jaunt into the language of statutes and statutory interpretation in the U.S., and how psychological phenomena explain many interpretative problems. In support of his message Solan provides not just a guide to statutory interpretation, but a direction in how to govern by statute, analyzing everything from the CHEVRON doctrine to the role of jurors when interpreting statutes.

In large part, the book is both a tribute and a rebuke of opinionated Supreme Court Justice Antonin Scalia. Acknowledging that Scalia is the foremost sitting Supreme Court justice concerned with statutory interpretation, Solan uses Scalia’s bench and marketplace literature to shed light on a number of statutory conundrums. In using a figure of Scalia’s magnitude, Solan cleverly and deliberately does not trap himself, as so many other writers seem to do, as being the antithesis of the vaunted justice. Instead, using his own subtle linguistic precision, the author systematically reveals that many of Justice Scalia’s theories in regard to statutory interpretation are not only contrary to the psychological processes of analyzing and interpreting law, but at times divergent from Scalia’s own bench decisions.

THE TWO FACES OF AMERICAN FREEDOM

by Aziz Rana. Cambridge, MA: Harvard University Press, 2010. 432pp. Hardcover. $29.95/£22.95/€27.00. ISBN: 9780674048973.

Reviewed by Stephen Pimpare, New York University, Silver School of Social Work. Email: Stephenpimpare [at] yahoo.com.

pp.305-307

A dread fact lurks at the core of the American story: liberty and freedom for some, typically trumpeted under the rhetorical banner of freedom for all, has been achieved, at least in part, thanks to the genocide of Native Americans, the enslavement of Africans, the exploitation of workers of all kinds, and the exclusion of women and ethnic minorities. This uncomfortable legacy is now widely recognized and, to varying degrees, increasingly incorporated into narratives of the American experience. Although it is occasionally presented here as if it were something more novel than it now is, Aziz Rana’s entree into this landscape offers a dense, provocative, revisionist tale that finds the key to apparently contradictory strains in American political culture, political thought, and notions of citizenship in our own dual past as settler and colonizer.

For Rana, American ideas of freedom have been deeply rooted in “imperial frameworks,” and in a reality in which “the promise of liberty” was ultimately dependent upon “practices of subordination” (p.3). This tension – these are the “two faces of American freedom” – bequeathed us a “settler empire” built inextricably on and dependent upon a territorial expansion that, inescapably perhaps, undermined freedom itself. Populists (a term he applies broadly to varieties of farmer and worker activists from the early 1800s) pushed against this tide, seeking to “expand the meaning of liberty and to imagine this American ideal without either subordination or empire” (p.3). The dissolution of those movements and their ultimate failures, including the Progressive Era contraction of the franchise, mark the “effective abandonment of the American vision of liberty as an exercise in self-rule” (p.262). What follows is the rise of the modern administrative state, in which settler individuality and populist democracy have both retreated, with potentially dangerous consequences, replaced first with a “humanitarian imperialism” (p.262) of global expansion and, later, the further encroachment and legitimation of broad executive power thanks to the New Deal.

The result is that while “the people” may be invoked like some shibboleth, the public are not engaged (or even much needed) by the distant, modern state; they have become passive subjects of power, and are content to remain so as long as it seems able to provide security from want at home and to protect them from threats from abroad. Republican self-rule has thus faded, and is now dangerously close to being gone. As Rana summarizes: “the dominant legacy of reform has not been to transform the prevailing order but to rationalize it. Equality often has meant simply [*306] blunting the harshest implications of the state’s coercive power over marginalized groups and providing elite access for a privileged few drawn from them” (p.328). What’s now needed is to “[recover] the historical project of independence – only now expanded to incorporate everyone” (p.329), with the civil rights movement as model, and to build, finally, the nonimperial republic promised by Populist ideology.

A MORE PERFECT MILITARY: HOW THE CONSTITUTION CAN MAKE OUR MILITARY STRONGER

by Diane H. Mazur. New York: Oxford, 2010. 240pp. Hardback. $29.95/£18.99. ISBN: 9780195394481.

Reviewed by Paul Lermack, Department of Political Science, Bradley University. Email: pnl [at] bumail.bradley.edu.

pp.299-304

Our tradition of a nonpoliticized military is said to be endangered. Generals and admirals contemptuously attack the president and flirt with endorsing his rivals; some take public stands on controversial policies like don’t-ask-don’t-tell. Meanwhile, civilian authorities disregard the advice of the military and assign it impossible missions for political reasons. Debate on any issue of military policy inevitably deteriorates into an exchange of simplistic slogans, and ultimately to a single question: do you support our men and women in uniform? Or do you hate America and the American values that the military exemplifies? A “military-civilian gap” has been noted by journalists, think tanks and the Pentagon itself. All have concluded that it endangers democratic policymaking.

Diane Mazur, a former Air Force officer who is now a law professor at the University of Florida, describes the gap, showing that it is often fueled by persistent incorrect factual assumptions which she calls myths, and documenting, through brief case studies, just how dangerous it is. “Sometimes,” she claims,

we fail to listen to the earned wisdom of people who have served in the military, and as a result we lose the benefit of their experience. . . . . [F]ar more frequently, we credit the opinions of veterans exclusively, without reservation or examination, and as a result we discourage those who have not served in the military from actively participating in our constitutional tradition of civilian control. (pp.30-31).

As a nation, we will soon have to decide what future military missions we need to prepare for, what kind of standing force we will need, and how much we can afford to spend on it. We cannot make wise choices if the military remains at odds with the larger society. But we cannot reduce the military-civilian gap until we understand what caused it and why (and if) it is worsening.

Unexpectedly, Mazur blames the increasing politicization of the military on the late Chief Justice William Rehnquist. In dicta in cases decided during the 1970s and 1980s, Rehnquist elaborated on obscure precedents to assert that military society is guided by unique values and concerns that the larger civilian society cannot understand. Because it adheres unflinchingly to these straightforward values, it is morally superior to civilian society. Consequently, the military must be accorded great latitude to manage its own affairs, even if cautionary civilian voices must be ignored. [*300]

LAW’S DETOUR: JUSTICE DISPLACED IN THE BUSH ADMINISTRATION

by Peter Margulies. New York: New York University Press, 2010. 240pp. Cloth. $39.00. ISBN: 9780814795590.

Reviewed by David S. Mann, Professor Emeritus, College of Charleston. Email: mannd [at] cofc.edu.

pp.295-298

Make no mistake, this is a point of view book; the subtitle gives it away. At the outset, readers of this review should know that I have a point of view, too; my favorite Senator is Bernie Sanders (I-VT); I wanted to like this book; a rather faithful viewer of MSNBC, a lot of what Margulies wrote about I had seen on Maddow, Matthews, (more recently) O’Donnell, or (until recently) Olbermann. I wanted more, and that was the temptation which drew me, as a retired professor, to complete this assignment.

Lucky for those interested in this topic, the April 18th edition of LPBR reviews WHEN GOVERNMENTS BREAK THE LAW: THE RULE OF LAW AND THE PROSECUTION OF THE BUSH ADMINISTRATION, by Austin Sarat and Nasser Hussain (eds.). While I have only read the review, it looks at first glance that the two works could be companions to one another.

Margulies begins with what he refers to as “The perfect storm of politics, ideology, and crisis,” chapter one’s title. He refers to detours “from sound policy, practice, and law” (p.7). Often in this book the author ties people to ideas, and here refers to the the imperial presidency model as the first source of ideology. Margulies asserts that Dick Cheney, David Addington, and John Yoo were all “champions of unilateral presidential power” (p.8). Add a variety of components such as Margulies’ belief that the unilateralists/imperialists supported the broad brush of U.S. v. CURTISS-WRIGHT, the appointment of John Ashcroft as Attorney-General, and the events of 9-11 and you have that perfect storm. Margulies also believes that these same folks disregarded Justice Jackson’s solution to disputes between presidential and congressional power in YOUNGSTOWN SHEET AND TUBE V. SAWYER. Given all of that, detours included the detentions of US citizens, executive surveillance, the creation of the Department of Homeland Security (here he refers to “follies” (p. 21)) and FEMA’s response to Katrina.

Chapter 2 discusses how the Bush administration went about “targeting individuals and groups” (the chapter’s title), and begins with this: “In May 2002, the Justice Department accused the environmental activist group Greenpeace of tempting sailors into vice. . . . [citing] an obscure, 140-year-old statute aimed at aggressive marketing by seaside taverns which bar boarding a vessel in an unauthorized fashion. . .” (p.25). The dominant targets in this chapter are immigration and related policies. For instance, Margulies spends several pages on the post-9-11 roundup of Muslim persons of interest. In the first of several seemingly unrelated examples, the author directs attention to [*296] asylum and immigration issues. He talks about Haitian refugees, who might be hiding terrorists, and who were detained under a John Ashcroft order: “Risking one’s life in a rickety vessel in the turbulent Caribbean surrounded by scores of bona fide Haitian refugees, however, seems like a markedly inauspicious start to a terrorist infiltration” (p.31).

CIVILISING GLOBALISATION: HUMAN RIGHTS AND THE GLOBAL ECONOMY

by David Kinley. New York: Cambridge University Press, 2009. 272pp. Hardback. £60.00/$110.00. ISBN: 9780521887816. Paperback. £24.99/$40.99. ISBN: 9780521887816. Adobe eBook. $33.00. ISBN: 9780511654312.

Reviewed by Catherine Lu, Department of Political Science, McGill University. Email: catherine.lu [at] mcgill.ca.

pp.291-294

The title of David Kinley’s book is meant to be a double entendre: in one interpretation, ‘civilising’ is a verb that refers to the need to tame agents, structures and processes of economic globalization in order to protect and promote human well-being; in a second interpretation, ‘civilising’ is an adjective that describes the beneficial impact of increasing economic globalization on the advancement of human well-being. In this articulate, even-handed and empirically rich book, Kinley shows that both interpretations are valid to some extent and need to be taken into account by policymakers and activists concerned to build a morally progressive global economic order.

In arguing that room must be made for both views of globalization, Kinley takes to task extreme positions on both ends of the debate about the role or utility of the global economy for the promotion of human rights and well-being. On the one hand, he finds fault with the ‘dangerous, naïve tendency’ in human rights circles ‘to ignore, resist or dismiss economic solutions to social problems if they are not explicitly couched in human rights terms’ (p.207). On the other hand, he criticizes those proponents of globalization who have been ‘too ready to extol its virtues without any reference to, let alone addressing of, its problems’ (p.24). Kinley acknowledges that the development of the global economy has helped to improve socio-economic conditions for many people; a free trade and market economy is a necessary, albeit insufficient ‘ingredient in the human rights recipe’ (p.238), and the human rights concerns that attend globalization cannot be resolved by seeking to eliminate or dismantle the global economy. At the same time, against economic liberalisation and free market ideologues, Kinley argues against the ‘harmony of interests’ thesis (Carr 1946, Wyatt-Walter 1996), that the pursuit of greater market efficiency, growth and consumption automatically or eventually raises standards of living, or supports public goals such as poverty alleviation. Kinley’s rich empirical analysis shows that the relationship between human rights and the global economy is far more complex: ‘The dynamics of the relationship are neither as simple as correlating economic expansion with growth in human rights protection, nor the inverse, that human rights are degraded as the economy grows’ (p.209). The problem for policymakers is how to order the relationship between human rights and the global economy so that the latter facilitates rather than undermines the realization of the former.

To examine how the global economy and human rights are and should relate [*292] to each other, Kinley first has to challenge the notion that they are ‘two solitudes’ that have nothing to do with each other. Kinley explains in the book’s preface that he was inspired to write this book after a meeting with a senior economist at the World Bank, who expressed a prevalent view that human rights could not or should not be central to the Bank’s policies and goals. The economist understood the Bank’s main goals to be advancing the socio-economic circumstances of people, including poverty alleviation, but he did not think such issues were the proper concern of human rights. Rather, human rights were legally enforceable obligations, primarily the responsibility of states, to guarantee individuals’ civil and political rights.

STUDENT SPEECH ON THE INTERNET: THE ROLE OF FIRST AMENDMENT PROTECTIONS

by Jesulon S.R. Gibbs. El Paso, Texas: LFB Scholarly Publishing, 2010. 264pp. Hardcover. $75.00. ISBN: 9781593324063.

Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross Email: cdubnoff [at] holycross.edu.

pp.288-290

Prompted by a Massachusetts high school student’s suicide that had been blamed on merciless bullying by other students, the Massachusetts legislature recently passed an anti-bullying law, which assigned school officials significant responsibility for the prevention of bullying, including cyber-bullying outside the school environment. Cyber-bullying is an extreme manifestation of a wider problem – the increased interaction between potentially disruptive or otherwise harmful student internet communications and the proper maintenance of a safe environment needed for the advancement of educational goals which school officials are mandated to promote.

But, if school officials are to be held accountable in preventing student bullying both in and out of school, do they actually have the power to respond, or are their actions likely to be blocked by the protections afforded by the First Amendment? The answer is anything but clear. The Supreme Court has spoken only four times regarding student expression: TINKER v DES MOINES CENTRAL SCHOOL DISTRICT (1969), BETHEL SCHOOL DISTRICT NO. 403 v FRASER (1986); HAZELWOOD SCHOOL DISTRICT v KUHLMEIER (1988), and MORSE v FREDERICK (2007). In the first three cases, the speech occurred in school, and the fourth case involved an activity which the Court characterized as school-sponsored and controlled. Student speech was deemed protected only in TINKER, the first case. The Supreme Court has thus far said nothing with regard to student speech rights off-campus, and thus has left the development of the law in this area to the lower courts. There is some legal commentary that attempts to look at the treatment of student off-campus speech in the lower courts, but this work has tended to be limited in scope – focusing on a few discrete decisions, and designed to provide evidence of inconsistency to press for Supreme Court intervention.

Jesulon Gibbs’ book provides a comprehensive compilation of relevant lower court cases, and examines them in an attempt to delineate the potential limits imposed by the First Amendment on educators’ efforts to use traditional school disciplinary tools such as school suspensions and expulsions to address cyber- bullying and other offensive off-campus speech. The book could not be more timely. If she is correct in her assessment of the material, school officials may have a hard time responding adequately to disruptive speech outside of the school system. Professor Gibbs sets out two related objectives: first, to provide clarity to the lower court actions, and second, based on this to “offer a model framework for [*289] school administrators, courts of law and scholars to use as a uniform standard” in approaching and resolving the disputes generated by “off-campus student speech” (p.6). To this end, Gibbs examines relevant published lower court cases and presents their issues and the court’s conclusions and supporting rationale. This material is the core of the book. It is organized by circuit and by state and district rather than by issue, and appears in chapters five through eight. Gibbs also provides charts to summarize much of the foregoing material and make it easier to sort out the issues, arguments, and outcomes.

THE UNITED STATES AND TORTURE: INTERROGATION, INCARCERATATION, AND ABUSE

by Marjorie Cohn (ed). New York: New York University Press, 2011. 368pp. Cloth $39.00. ISBN: 9780814717325.

Reviewed by Adam L. Kress, Department of Political Science, University at Albany. Email: alk58 [at] cornell.edu.

pp.285-287

In this volume Marjorie Cohn brings together a diverse interdisciplinary group of experts in an attempt to understand the historical underpinnings the United States’ post-9/11 embrace of torture as well as the subsequent attempts to justify it. The book is sectioned into three parts: 1) The History and Character of Torture, 2) Torture and Cruel Treatment of Prisoners in U.S. Custody, and 3) Accountability for Torture.

Part I taken together with Cohn’s Introduction paints a historical narrative wherein torture was suborned and brushed-off by the United States when ignorance of its use served political interests in countries such as Guatemala, Columbia, El Salvador, Chile and Iran. Yet, after 9/11 Cohn argues the gloves came off and the United States moved from suborning torture to actively requiring its use. Historian Alfred McCoy underscores this contention by arguing in his chapter “Mind Maze: The CIA’s Pursuit of Psychological Torture” that the out-stretched postures and black-hoods which are now inextricably linked with the Abu-Graib prison scandal took their genesis in cold war era CIA intelligence gathering programs (pp.25-26). However, as McCoy points out, more troubling than outlining the techniques or their sanction in extreme cases, was the Bush Administration’s fervent desire to see them used in all cases regardless of the success or failure of internationally accepted humane methods of interrogation. A posture which McCoy argues was ineffective drew the rebuke of agents in the field and stood in striking contrast to more humane techniques which were used by teams in the field to gather more reliable intelligence (p.45).

McCoy’s introductory chapter is followed by two case studies which attempt to make the case that the United States has taught and sanctioned torture in other nations. The first, “Torture and Human Rights Abuses at the School of the Americas-WHINSEC” by Bill Quigly alleges that the United States taught torture techniques to foreign operatives who came to study at the School of the Americas. The chapter also alleges that such tutelage has created a series of violent military dictators such as General Romeo Vasquez, General Juan Melgar Castro, and General Paz Garcia as well as other unnamed despots throughout the Southern hemisphere — examples which then are used to justify Quigley's resounding call for openness and investigation (pp.53, 62). Following Quigly is Terry Lynn Karl’s case study of El Salvador entitled “U.S. Foreign Policy, Deniability, and the Political 'Utility' of State Terror.” In this chapter Karl takes a great deal of time developing the concept of “deniability” which was seen by top political leaders [*286] as the marketable solution for atrocities of war committed in El Salvador, but as Karl shows ultimately backfired on Congress and showed that the American people were being misused and manipulated by intentional failure to account in this case (pp.79, 86). Rounding out Part I of this volume is a piece entitled “Fundamental Human Rights and the Coercive Interrogation of Terrorists in an Extreme Emergency” by John W. Longo wherein the author ponders the moral relativism and perhaps moral hazard associated with invoking torturous methods in extreme situations. Using the historical cases of Hiroshima and Nagasaki, Lango argues that there is some logic for not expressly prohibiting acts that would otherwise be seen as cruel, unusual or inhumane. However, his major caveat to this thought exercise is that while such acts can be rationalized as the lesser of two evils in certain extreme cases, they ought not be carried-out under the assumption of moral righteousness and absolution. He strongly argues for changing international law so that it expressly states that there is no moral justification for acts of torture and that necessity is not a defense. Rather, those who use such means should be required to follow a protocol which seeks to measure the greater good at the same time they must accept the moral implications of their acts (pp.97-99). Thus, Longo feels his desired changes to international law would allow for the use of needed force and coercion in extreme instances where it arguably serves a greater good, but at the same time prohibiting legal rationalization by nations that could be used to make any act undertaken in time of national duress a permissible act of torture (pp.113-114).

SPECIALIZING THE COURTS

by Lawrence Baum. Chicago: University of Chicago Press, 2011. 296pp. Hardback. $85.00. ISBN: 9780226039541. Paperback. $27.50. ISBN: 9780226039558. E-book $7.00 to $27.50. ISBN: 9780226039565.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University, Email: Richard.Brisbin [at] mail.wvu.edu.

pp.280-284

In SPECIALIZING THE COURTS Lawrence Baum presents the first comprehensive comparative examination of the politics of special jurisdiction courts in the United States. Going beyond simple descriptions of the multitude of these courts, his objective is to answer questions about the reasons for the creation of such courts and the political outcomes of their adjudicatory and policymaking activity. Although his book does not fully answer these questions, it is a noble scholarly inquiry that leads the reader to consider a variety of potential hypotheses about the internal decision making and political consequences of the existence of such courts. In brief, Baum’s book establishes a research agenda that should encourage judicial politics scholars to reconsider their fetishistic devotion to the study of the Supreme Court of the United States and to explore other judicial institutions that affect the everyday lives of Americans and the conduct of business in a global economy.

Effectively Baum’s study of specialized courts has four segments. His first segment addresses the scope of his inquiry and his unit of analysis. What is a specialized court? To this reviewer, the answer offered in his first chapter is the most debatable aspect of the book. The fluidity of the meaning of separated powers has meant that adjudications occur within a wide range of institutions in the United States. Additionally, Martin Shapiro, whose work Baum cites as a source of inspiration for his study, has written that, “in reality there are very few if any societies in which courts are so clearly delineated as to create absolute boundaries between them and other aspects of the political system” (Shapiro 1981, p.1). However, Baum chooses to narrow Shapiro’s definition of courts as political institutions that exhibit a “triadic structure of conflict resolution” for a definition closer to traditional separation of powers logic and nearer to what Shapiro called the “conventional prototype” of courts (see Shapiro 1981, pp.viii, 1-64). Assuming the generalist court is a traditional third branch institution adjudicating all sorts of conflicts, Baum defines specialist courts as institutions with high “case concentration,” high “concentration of judges,” or both (p.7). He admits that case concentration, or jurisdiction over cases about a narrow area of the law, and judge concentration, or judges “who concentrate on a limited range of cases,” are ambiguous and imprecise.

Additionally, to provide for a “manageable” study of specialized courts, Baum chooses not to devote much attention to the cause or consequences of four other forms of specialized “triadic conflict resolution.” He excludes specialized administrative [*281] agency adjudication from his study even when the adjudication is before independent administrative law judges or occurs within institutions that carry the label “court,” such as federal Immigration Courts. He reasons that most agencies are specialized and cannot readily be compared to largely nonexistent generalist agencies and that agencies’s location in the executive branch “reduces their comparability with generalist courts” (pp.9-10). Second, he chooses not to examine federal and state general jurisdiction courts that assign their judges to specialized tasks (pp.11-12, 19-20). For example, he excludes courts such as the Allegheny County Court of Common Pleas in Pittsburgh that assign judges to long terms of specialized service in civil, criminal, family, and orphans’ divisions. Third, he does not consider courts whose venue causes them to specialize in particular cases (p.11). For example, the Superior Court in LaPorte County, Indiana has two courthouses, and the judge sitting in the courthouse nearest a state penitentiary is assigned all cases involving crimes committed by prison inmates. Finally, Baum discusses but excludes from his study appellate courts that assign specific categories of cases to panels of judges, allow specialization in opinion writing by specific judges, or assign judges temporarily to specific tasks, such as the management of asbestos litigation (pp.13, 18-21).

REGULATING THE BUSINESS OF INSURANCE IN A FEDERAL SYSTEM

Joseph F. Zimmerman. Albany: State University of New York Press, 2010. 196pp. Hardcover. $70.00. ISBN: 9781438433578. Paper. $23.95. ISBN: 9781438433585. eBook format. $70.00. ISBN: 9781438433592.

Reviewed by William Haltom, University of Puget Sound. Email: Haltom [at] ups.edu.

pp.278-279

This quirky monograph may interest and profit a specialized, sophisticated readership. A sense of its quirkiness and specialization may be gathered from its third to last paragraph: “The evidence presented herein does not support the following hypothesis presented in chapter 1: An operational federal insurance charter system, similar to the dual charter banking system, provides policyholders and company shareholders greater protection than the current state charter system” (p.133). Although any reader would by that page anticipate that conclusion, I doubt that the reader would ever have imagined the exercise to involve hypothesis-testing. Rather, Joseph F. Zimmerman, in his first chapter, articulates a thesis; then, in succeeding chapters, he amasses evidence to “disconfirm” it. I found that mode of proceeding curious. The reader would by that page also be familiar with the systems of insurance and other terms of the hypothesis, but those terms and that hypothesis are so technical and esoteric that few readers will likely persevere to that page. The abstruse subject and specialized assay would seem amenable less to ersatz experimentation than to arguments about the stakes of this discussion for readers in sociolegal studies or social science. Moreover, inside the dust jacket the publisher reveals the outcome of the gathering and sifting of evidence and arguments.

The curious framing of the monograph does some disservice to the meticulousness with which Zimmerman builds his case against congressional proposals and fashions recommendations that seem superior to recently proposed bills. That case is logically ordered and succinctly rendered. After the first chapter proposes the thesis that will fail to be supported and defines some key terms, the second chapter characterizes states’ regulation of insurance in the second half of the 20th century. The third chapter reports the insurance industry’s perspectives on state insurance regulation as premises or pretexts for calls for congressional action, and the fourth chapter describes and to a degree assesses efforts to achieve greater uniformity of state insurance regulation. Chapter 5 narrows scrutiny further to Senate bill 40 (2007) and House bill 1880 (2009). In a concluding chapter, Zimmerman then arrays evidence and argument and draws conclusions that bear [*279] on the hypothesis in the first chapter.

PRESIDENTIAL POWER IN ACTION: IMPLEMENTING SUPREME COURT DETAINEE DECISIONS

by Darren A. Wheeler. New York: Palgrave Macmillan, 2008. 209pp. Cloth $74.95. ISBN: 9780230603691.

Reviewed by Bruce E. Altschuler, Department of Political Science, SUNY Oswego. Email: bruce.altschuler [at] oswego.edu.

pp.274-277

Writing that “perhaps the most vivid example” of the Bush administration’s expanded claims of presidential power was the detention of suspected terrorists and the methods proposed to try them, Darren Wheeler examines four Supreme Court cases limiting these powers that were decided in 2004 and 2006. He argues that the conventional portrayal of these rulings as rebuking President Bush’s detainee policy is contradicted by the administration’s ability to implement policy in ways that allowed the executive branch to retain control. These events are used to ask how two different concepts of presidential power – Richard Neustadt’s plural executive whose power comes from the ability to persuade and the competing view stressing unilateral powers – apply to Bush’s response. The substance of the book consists of chapters examining each ruling and its implementation, followed by a concluding chapter analyzing the competing theories of presidential power in light of these cases. There are also useful secondary discussions of such topics as writs of habeas corpus and criminal versus military approaches to terrorism suspects.

Although the consistent misspelling of Sandra Day O’Connor’s surname as “O’Conner,” even in the index, and Judge Rosemary Pooler’s three times as “Pool” gives pause about the quality of the analysis, the book does a very good job of clearly explaining the complexities of each of these cases, as well as the lower courts’ attempts to interpret them as other detainees sought to assert their rights. Even more informative is the analysis of how the administration was able to assert compliance without substantially changing its policies. For example, even though HAMDI v. RUMSFELD (2004) was widely viewed as a setback for the administration because it ruled that detainees were entitled to a degree of due process, the Court agreed that Hamdi could be detained as an “enemy combatant,” a term they chose not to define, at least until hostilities in Afghanistan ended and that whatever due process rights he was entitled to could fall considerably short of those of criminal defendants. The administration then established Combat Status Review Tribunals (CSRT) that seemed to have elements of due process. Detainees were presumed innocent unless the government proved by a preponderance of the evidence that they met the criteria of enemy combatants, had a right to be present at hearings, were given an interpreter and a personal representative, could call “reasonably available” witnesses and present evidence in their favor before a panel consisting of one military judge and two other officers. These protections, however, provided so few actual rights that approximately a third of detainees declined to participate. [*275] Because personal representatives were not attorneys, conversations with them were not privileged. Only a few spoke at the hearings, and some who did so made comments that harmed their clients. Personal representatives could see classified evidence but were forbidden from discussing any with clients. The government did not produce a single witness in any hearing, while supplying documentary evidence in only five percent of them. All detainee requests for witnesses not physically present at Guantanamo were denied, with even three-quarters of requests for testimony from other detainees turned down. When one panel unanimously ruled in favor of a detainee, it was instructed to rehear the case with the government providing additional evidence. Wheeler reasonably concludes that, while the Supreme Court may have rejected the most extreme claims of executive power, it agreed to enough of the administration’s interpretation to allow the president largely to prevail. The results suggest that “a determined president, using unilateral powers, can dominate the judicial implementation process,” even when the court’s decision is widely viewed as a defeat (p.51).

REAPPRAISALS IN THE LAW OF PROPERTY

by John V. Orth. Burlington, VT: Ashgate, 2010. 172pp. Hardback. £60.00/$99.95. ISBN: 9780754677314.

Reviewed by David Schultz, School of Business, Hamline University. Email: Dschultz [at] hamline.edu.

pp.272-273

Property law is a vexing topic for lawyers but an often ignored topic for public law political scientists. In law school, first year law students are perplexed with the rule against perpetuities, reversions, reverters, life estates, and seisin, and practicing lawyers confront the baffling world of real estate purchasing agreements, trespass, and zoning. While for political scientists, property law is seldom considered, except perhaps for an occasional eminent domain case. In fact, for the political science community, land use and property law is dismissed as unimportant, as was my experience when returning to graduate school and wanting to craft a dissertation about it. Yet the very perplexity and oversight speak to why there is a need to examine property law in more detail. Exploring the conundrums of property law is the subject of this volume.

John V. Orth’s focus is on property law in the United States, but it might as well speak to the law on this subject in England and many of the Commonwealth countries. Property here is mainly real property or real estate, but Orth also addresses other forms of property. He acknowledges from the onset that the subject of property is a large subject, growing as new technologies create new types of possessory interests. The aim is to make sense of the rules of property, to bring order to the disparate and various forms of ownership that exist. But there is an overarching theme here – the rules of property make little sense. They are the product of the common law and traditional practices. They are the accumulation of many centuries of rules, reflecting bygone social practices and traditions that are bundled together to form current property law. Instead of altering possessory rules to reflect new social relations, old rules are retained, gerrymandered to fit the present, and new rules and exceptions are promulgated. What has emerged is that property, in Orth’s words, is less a bundle of rights than a bundle of rules. The vexing and confusing nature of property law is a product of dead social practices weighing on the present, with old analogies about possession awkwardly fitted to the present. Real changes in ownership law are needed, but it will not occur because of the conservative nature of property law.

The book divides into two sections. The first examines classic cases or problems in property law – the staple of law school and the bane of a 1L’s existence – while part two looks to the forces that drive the problems revealed in these cases. The first eight chapters in part one cover traditional ground for law professors. These problems include the law of abandoned property and findership. Specifically, when has someone abandoned property, such that they have given up title and another can [*273] then claim ownership? Critical here is determining intentionality of the prior possessor. Chapter two explores the Rule in Shelley’s Case, an arcane 1581 British decision addressing the willing of property to someone and then her heirs. Without explaining the details of the problem, the simple issue is about the type of estate the different parties receive and what their interests are. Other problems in the first half of the book examine issue of rights in joint tenancy and tenants by entirety and who gets to devise property to whom, leases, easements, escheat, and implied covenants of habitability. All of the property issues have become problems because of efforts to accommodate ownership rights with new social policies and practices. For example, implying covenants of habitability in leases for the purposes of landlord/tenant law confuses property with contract law, yielding confusing legal issues regarding what rights respective parties can contract for.

DOMESTIC VIOLENCE AND INTERNATIONAL LAW

Bonita Meyersfeld. Oxford: Hart Publishers, 2010. 368pp. Hardback. $90.00/£45.00. ISBN: 9781841139111.

Reviewed by Denise DeGarmo, Department of Political Science, Southern Illinois University. Email: ddegarm [at] siue.edu.

pp.269-271

Domestic violence encompasses a wide array of violent behaviors including but not limited to physical aggression, sexual and/or emotional abuse, intimidation, and stalking. Typically these behaviors are most likely to occur in intimate relationships, including marriage, dating, or cohabitation. However, additional forms of domestic violence have entered the world stage: genocide, mass rape, and torture, to name a few. While these characterizations of domestic violence are generally agreed upon globally, it is important to note that awareness, responsiveness, and documentation of these forms of violent behavior varies from state to state. Despite the fact that domestic violence is a serious and preventable problem, the reality is that most cases of domestic violence go unreported by the victim because of fear of retaliation, sympathy for the offender and/or police silent endorsement of violence. Reporting instances of domestic violence is further complicated by social and cultural norms. Underreporting of domestic violence is a global phenomenon.

If states fail to protect their citizens from domestic violence, what alternatives are available to protect innocent victims? Bonita Meyersfeld, in her book DOMESTIC VIOLENCE AND INTERNATIONAL LAW, provides a comprehensive legal analysis to promote the idea that, when states fail to protect their citizens from and to prosecute perpetrators of domestic violence – Meyersfeld refers to it as “systemic intimate violence” – then states can be held accountable for violating international human rights law because they have become complicit in the act of violence.

The book is divided into four parts, detailing the important aspects of Meyersfeld’s argument: domestic violence as an international human right; human rights and the state’s obligation to protect those rights; the state’s responsibility in terms of systemic intimate violence; and, the benefits of international law for victims of systemic intimate violence. In the first chapter, “Domestic Violence as a Violation of International Human Rights,” Meyersfeld identifies instances of customary international law, international women’s rights law and the actions of various non-governmental, transnational and international organizations to provide a historical backdrop to the development of a norm that identifies certain kinds of domestic violence as an international human rights violation. The foundation of this norm is found specifically within the work of the Committee on the Elimination of Discrimination Against Women where there is a justification for domestic [*270] violence ceasing to exist as an “exclusively domestic affair.”

THE PRACTICE OF EXECUTION IN CANADA

by Ken Leyton-Brown. Vancouver: University of British Columbia Press, 2010. 216pp. Hardcover. CDN$85.00/US$94.00. ISBN: 9780774817530. Paperback. CDN$32.95/US$35.95. ISBN: 9780774817547.

Reviewed by Greg Marquis, Professor of History, University of New Brunswick Saint John. Email: gmarquis [at] unb.ca.

pp.265-268

Execution was legal in Canada until 1976, when the death penalty was abolished under the Trudeau government. The de facto end to executions was in 1962, when two convicted murderers were hanged in Toronto’s Don Jail. In the preceding years, the sentences of most convicted murderers had been commuted to life in penitentiary. Between Confederation in 1867 (when the federal government acquired control of criminal law) and abolition, several hundred people were hanged in Canada’s local jails (unlike in the United States, hanging was the only method of execution used). An equal number of convicted murderers also had their sentences commuted. Historians have produced case studies (such as the 1899 trial and execution of Hilda Blake, a Manitoba domestic servant), analyzed how race, ethnicity, religious and social class have affected murder trials and campaigns for executive clemency, and explored the evolution of issues such as criminal responsibility in legal practice. Ken Leyton-Brown attempts something different, an examination of “what befell those who left the death cell only to go to the gallows” (pp.viii-ix). His view, influenced by practice theory, is that execution can be understood as “a complex social institution” (p.ix). Leyton-Brown refers to earlier work on structuration theory by the sociologist Anthony Giddens (1986), which informs historical thinking about execution and practices surrounding it as ritual. The primary sources for this study are federal Department of Justice Capital Case Files, which were created for each prisoner sentenced to death, and newspapers in a dozen cities in seven out of Canada’s ten provinces.

Leyton-Brown argues convincingly that execution was “a social institution (p.8) and that the authorities used these occasions for a number of public purposes, including ‘Canadianizing’ First Nations and immigrants and reinforcing the legal and social order. In Canada there was no organized movement against the death penalty until the mid 20th century, but the new Dominion followed British practice in 1869 by amending its criminal law to make executions ‘private.’ This gave legal force to a trend that local authorities had been practicing for a number of years. Henceforth, only justice officials and possibly members of the press would be present at hangings that took place inside jail compounds. The public, who once gathered in large numbers to witness executions, was notified by a black flag and a toiling bell, as well as by newspaper accounts of the final hours of the condemned, the hanging and the post-mortem inquest. Over the next several decades some of the traditional practices surrounding [*266] execution changed or were no longer practiced uniformly, but important continuities remained. The author classifies the stages of the practice of execution: trial and sentencing, redemption, confession, procession, hanging, display, inquest and finally, disposal of the remains of the executed.

SEPARATION OF POWERS IN THEORY AND PRACTICE: AN INTERNATIONAL PERSPECTIVE

by Leny E. deGroot-van Leeuwen and Wannes Rombouts (eds). Nijmegen, the Netherlands: Wolf Legal Publications, 2010, 252 pp. Paper. €35.00/ ISBN: 9789058504944.

Reviewed by Michael L. Mezey, Department of Political Science, DePaul University. Email: MMEZEY [at] depaul.edu.

pp.259-264

There always has been a certain tension between the principle of judicial independence and the idea of representative democracy. On the one hand, an independent judiciary has been viewed as an essential element of democratic societies to the extent that it guards against the exercise of arbitrary power, prevents democratically elected majorities from using their power to threaten the basic rights of minorities, and guarantees that individual human rights will be protected when a citizen stands accused by the state of violating the law. The idea of an independent judiciary is a key component of the theory of separation of powers, a theory that guards against the dangers that arise when too much power is concentrated in too few hands, and, as Montesquieu saw it, promotes moderation by government leaders and thus protects individual liberty.

On the other hand, advocates of representative government argue that public policy should be made by elected officials and that the governing majorities that citizens put into office should be able to govern unimpeded by those who do not have such a democratic mandate. In most instances, judges, rather than being elected, are appointed, ostensibly on the basis of merit rather than political considerations, and they typically serve for lengthy periods of time, often for life or until a mandated retirement age. These arrangements are supposed to insulate the judiciary from both public opinion and governing majorities, thereby strengthening its capacity to reject the improper decisions of elected officials. But, whenever the decisions of judges trump the decisions of elected officials, representative government, its proponents argue, is at risk.

Thus, separation of powers as it applies to the judiciary is simultaneously an essential element to free and democratic systems and an element that can thwart the popular will as it is reflected in the actions of elected representatives. This democratic dilemma posed by judicial independence has been a traditional topic for scholars of the American judiciary, as over the years they have wrestled with the normative issue of how aggressive the federal courts should be in overturning laws passed by states and by the Congress. However, the strong American commitment to a system of separate institutions sharing power, each with the capacity to check the other, has meant that the role of the Court, although often questioned, has seldom been seriously challenged.