DEGRADATION: WHAT THE HISTORY OF OBSCENITY TELLS US ABOUT HATE SPEECH

by Kevin W. Saunders. New York: New York University Press, 2011. 256pp. Cloth $45.00. ISBN: 9780814741443.

Reviewed by Jeannine Bell, IU Maurer School of Law-Bloomington. Email: jeabell [at] indiana.edu.

pp.505-507

Professor Kevin Saunders’ book addresses two topics in of First Amendment law not commonly associated with one another, obscenity law and hate speech. Obscenity is viewed as primarily concerning “sex,” and hate speech is considered to be about “race.” As Saunders explains, obscenity law focuses on the rights of individuals to access sexually explicit materials. Saunders includes within his ambit several types of hate speech including racist, sexist and homophobic speech, although some speech categories are not as developed as others. He immediately locates the similarities between obscenity and hate speech in his introduction to hate speech, citing critical race theorists including Richard Delgado and Mari Matsuda, who characterize hate speech as assaultive and note the physical injury that such speech causes (Matsuda, et al.,1993). The aim of Saunders’ book appears not just to demonstrate the similarities between these two types of speech, but also to suggest how examining the legal treatment of obscenity in the United States can guide the sanctioning of hate speech, if at some point society wishes it.

Saunders begins the book with an extensive treatment of pornography, dating back to the Greek and Roman eras. He maintains that sexual obscenity is linked to the relationship between “humans and God or gods on the one hand and humans and animals on the other” (p.75). In tracing the acceptance of open sexuality in Greek and Roman culture, Saunders notes the absence of sexually obscene material or even a concept of obscenity in these societies. In Chapter 5, “A Look at Other Cultures,” Saunders finds a similar lack of shame concerning sex in Islamic as well as Jewish culture. In this chapter, Saunders also explores the effect of religious culture on attitudes towards sex in India, China, Japan and Scandinavia. In distinguishing Western Christian civilization, Saunders gives several reasons for the increased regulation of pornography and the creation of a category of obscene materials. He notes that in the West, increased regulation of obscenity occurred during the Enlightenment and the French and Industrial Revolutions. At these various time periods, in a wide variety of places pornography came to be seen at least in part “as depicting humanity in a less than human way” (p.73). Saunders distinguishes China and Japan from the Western approach. In China and Japan, people, along with gods and animals, were engaged in natural and enjoyable activities, “and with no shame associated with those activities, the depictions of human sexuality can be open” (p.86).

Saunders provides a nuanced discussion of the Supreme Court's approach to [*506] regulation of obscenity in the United States, the social disdain for obscenity developed into law with the Supreme Court first recognizing a legitimate state interest in government regulation of obscenity in 1957 in its decision in ROTH v. UNITED STATES. The Court continued its willingness to limit free expression in the context of obscenity. Prohibition of obscenity applied in two contexts, when children may be affected or when unwilling viewers might encounter obscene materials.

THE LANGUAGE OF LAW AND THE FOUNDATIONS OF AMERICAN CONSTITUTIONALISM

by Gary L. McDowell. New York: Cambridge University Press, 2010. 428pp. Hardback. $99.00/£60.00. ISBN: 9780521192897. Paperback. $32.99/£20.99. ISBN: 9780521140911. eBook. $26.00. ISBN: 9780511922145.

Reviewed by Stephen M. Feldman, Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. Email: sfeldman [at] uwyo.edu.

pp.500-504

THE LANGUAGE OF LAW AND THE FOUNDATIONS OF AMERICAN CONSTITUTIONALISM, by Gary L. McDowell, is a difficult book to review. On the one hand, it is a brilliant history, meticulously researched, but on the other hand, it is marred by its blatant political goal. One might say that McDowell, the Tyler Haynes Interdisciplinary Chair of Leadership Studies, Political Science, and Law at the University of Richmond, has written a wonderful book that nonetheless falls far short of accomplishing its objective.

McDowell seeks to describe the history of originalism as an interpretive approach to the American Constitution. From his perspective, this history demonstrates that originalism rests on a moral foundation: in a democracy, where the people are sovereign, originalism is the only judicial method in constitutional cases that can avoid arbitrariness and tyranny. Whereas many other defenders of originalism have sought to justify it pursuant to philosophical or theoretical arguments, McDowell largely aims to justify it through history. He traces the development of originalism stretching over more than two centuries. In McDowell’s hands, Thomas Hobbes, Joseph Story, and a host of others all share one consistent outlook: originalism. Hobbes, Story, and the others maintain that legislators and the like, such as constitutional framers, choose their words to communicate specific ideas. Good and receptive readers, such as certain Supreme Court justices, attempt to read a written text so as to glean the author’s intentions. When interpretation is done well, then the language of the law directly communicates the ideas from the mind of the writer to the mind of the reader.

The great strength of THE LANGUAGE OF LAW lies in the details. McDowell provides close readings not only of luminaries such as Story but also of lesser lights such as Giles Jacob and Sir Fortunatus Dwarris. For many of the luminaries, in particular, McDowell offers up interesting and sometimes surprising quotations suggestive of an originalist approach. For example, McDowell mines several sources to reveal John Marshall invoking “the intention of the framers” (p.312) and “the mind of the Convention” (p.313). Likewise, Marshall is shown saying that the “great object of language … is to communicate the intention of him who speaks” (p.323). In a similar vein, McDowell quotes Story stating that “the ‘first and fundamental rule in … interpretation’ is to discern the ‘intention of the parties’” (p.362) and that the “Constitution is … to have a fixed, [*501] uniform, permanent construction” (p.363).

DEMOCRACY, LAW AND GOVERNANCE

by Jacque Lenoble and Marc Maesschalck. London, UK and Burlington, VT: Ashgate Publishing Company, 2010. 276pp. Hardback. $124.95/£65.00. ISBN: 9781409403951. E-book. ISBN: 9781409403968.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu.

pp.490-494

Clearly she was encouraged by the options Charlotte had described; they were structures after all. Engineering of an imaginary sort, which nevertheless resembled real engineering. So Nadia was tapping away at her screen, sketching out designs as if working on a building, a small smile tugging the corners of her mouth.
“You’re happy,” Art said.
She didn’t hear him. But that night in their radio talk with the travelers, she said to Sax, “It was so nice to find that political science had abstracted something useful in all these years.”
Eight minutes later his reply came in “I’ve never understood why they call it that.”
(Robinson 1997)

When Nadia Cherneschevsky was putting together the Martian constitution she might have found this book useful. Jacque Lenoble and Marc Maesschalck are trying to do exactly what she was talking about: provide a set of engineering principles that can be used to build new structures of governance in a rapidly changing environment. Their solution – what they call a “genetic approach to governance” – is sufficiently interesting to warrant the careful reading their work requires. I remain unconvinced by some of their arguments for reasons I will give in a later section of this review. But first, I need to give those arguments the close review they deserve.

Let us join Lenoble and Maesschalck in considering the problem of collective public action in democracies. The authors identify the problem here as the need to accommodate the shift to “governance” – the increased use of private-public interactions to coordinate public policy favored by neo-liberal regimes. Their main concern is to formulate the imaginary engineering Nadia favors to accomplish this goal while at the same time preserving democratic processes. But, according to Lenoble and Maesschalck, this is not as easy to do as might be thought. They assert that there are two main obstacles to introducing democratic processes into the evolving legal situation. I will follow them by presenting these in order.

THE FREE PRESS CRISIS OF 1800: THOMAS COOPER’S TRIAL FOR SEDITIOUS LIBEL

by Peter Charles Hoffer. Lawrence: University Press of Kansas, 2011. 168 pages. Cloth. $34.95. ISBN: 9780700617647. Paper. $16.95. ISBN: 9780700617654.

Reviewed by Eric B. Easton, University of Baltimore School of Law. Email: eeaston [at] ubalt.edu.

pp.486-489

When Federalist John Adams was elected president in 1796, his party and Thomas Jefferson’s Republicans were deeply divided on both domestic and foreign policy issues. In the continuing European hostilities, for example, Republicans sentimentally and philosophically leaned toward the French, while the Federalists benefited from strong economic ties with Britain. Both European powers harassed the new American nation, but the Federalists controlled all three branches of government and had reached a modus vivendi with England. By 1798, partly because of clumsy French diplomatic intrigues, and partly because the Hamilton wing of the party willed it, the Federalists in Congress eagerly anticipated war with France.

In the wake of that expectation, the Federalist Congress enacted four statutes known collectively today as the Alien and Sedition Acts. One of them, The Sedition Act, levied a fine of up to $2,000 and imposed imprisonment for as long as two years on anyone convicted of writing, publishing, or speaking anything “false, scandalous, and malicious” against the U.S. government, the president or either house of Congress, or “to excite against them the hatred of the good people of the United States... ”; or of entering into unlawful combinations to oppose the execution of national laws, or aiding or attempting “any insurrection, riot, unlawful assembly, or combination.”

The principal target of the Act was the Republican newspaper press, which not only maintained a steady drumbeat of criticism against President Adams and his policies, but also promised to become a formidable political weapon in the election of 1800. The Act was vigorously enforced by Secretary of State Timothy Pickering. At least twenty-five persons, including the leading Republican editors, were arrested; from fourteen indictments under the Act, eleven Republicans were tried, convicted and jailed, eight of whom edited newspapers. All federal prosecutors were Federalists, as were all of the presiding judges. Juries were chosen by federal marshals, all of whom were also Federalists. No Federalist was ever charged under the Act.

MUSLIM MARRIAGE IN WESTERN COURTS: LOST IN TRANSPLANTATION

by Pascale Fournier. Farnham, Surrey: Ashgate, 2010. 228pp. Hardcover. £55.00/$99.95. ISBN: 9781409404415.

Reviewed by Asifa Quraishi, University of Wisconsin Law School. Email: aquraishi [at] wisc.edu.

pp.480-485

One of the popular topics in western discourses about law and religion today is whether secular legal systems should accommodate sharia. What is rarely acknowledged, however, is that they already do. Pascale Fournier’s recent book is valuable to anyone interested in going beyond the “should we or shouldn’t we” theoretical debate to instead appreciate what is actually happening in western courtrooms when Islamic legal concepts are presented as relevant to a case. Fournier selects the topic of mahr, a principle fundamental to Islamic marriage law, and traces its treatment by judges in the United States, Canada, France and Germany over the past several decades. Her approach skillfully highlights the variety of practical uses that mahr serves in the lives of Muslim men and women, as well as the variety of ways in which it has been understood by western judges.

In fact, it is in explaining the nuances of western judicial attitudes in these cases that I believe Fournier really shines. She skillfully untangles what might at first look like a jumble of inconsistent rulings by using a powerful typology of liberal ideologies (“legal pluralist,” “formal equality,” and “substantive equality”) employed by western judges. Applying this typology to individual cases, Fournier illustrates the effects of each of these ideologies – and their respective background presumptions – upon the way that a given judge chooses to frame key legal issues, deem facts relevant or irrelevant, and ultimately weigh evidence to reach a final result. I believe Fournier’s typology will be incredibly valuable to two audiences in particular: (1) lawyers working with Muslim clients in western countries, for the “law in action” insights it gives litigators seeking to frame legal arguments appropriate to each type of judge, and (2) academics and other analysts interested in the nuances and diversity of thought within liberalism, for the up-close view it provides upon how different liberal ideologies are subtly embedded in the judicial philosophies operating in western legal systems.

In sum, Fournier’s MUSLIM MARRIAGE IN WESTERN COURTS is an important work, not for what it says about “Muslim marriage” or even about Islamic family law, but rather, for what it enables western readers to understand about western courts. As I read the book, the topic of mahr serves as merely a case study that enables Fournier to set out upon a much larger project: investigating the nature of western secular judicial ideologies as they encounter (and are themselves shaped by) the challenges presented by religious practices of minority communities. Where I find the book lacking is primarily in its failure to identify its own strengths. Rather than explaining [*481] specifically how and why her study can influence scholars and practitioners in the field, Fournier seems to deliberately avoid drawing any conclusions about the ultimate impact of her work. This not only creates a frustrating anti-climactic feeling at the end of the book, but it is, I believe, unnecessary. Below is a summary of a few of the important contributions that I think are made by Fournier’s book, along with some suggestions for improvement in the next edition.

THE EUROPEAN COURT’S POLITICAL POWER: SELECTED ESSAYS

by Karen J. Alter. Oxford and New York: Oxford University Press, 2009. 368pp. Hardback. £45.00/$93.50. ISBN: 9780199558353. Paperback. £19.99/$40.00. ISBN: 9780199595143.

Reviewed by Evan Rosevear, Department of Political Science and Faculty of Law, University of Toronto, Canada. Email: evan.rosevear[at]utoronto.ca.

pp.476-479

THE EUROPEAN COURT’S POLITICAL POWER is a collection of the author’s published work on the European Court of Justice (ECJ) supplemented by introductory and concluding chapters, a chapter of previously unpublished research and the addition of a case-study to the discussion of Agents versus Trustees in chapter eleven. Published between 1994 and 2009, these works represent a corpus of work that compellingly advances the study of (supra-national) law and politics in a manner that balances the hardline scepticism underpinning power- and interest-oriented narratives of the law, with the more principled understanding of judicial decision-making that, broadly, characterizes doctrinal approaches to the topic.

The book’s thirteen chapters are divided into four sections. The first contextualizes the study of the ECJ, the second treats its development into a powerful political actor (1952-1980), the third its influence once developed (1980-2005), and the fourth consolidates conclusions drawn from her study of the ECJ and the study of international courts in general. Without seeking to minimize the contributions of each of the chapters, the remainder of this review will be restricted to highlights of the work and offer a more general analysis of the body of research as a whole.

Several propositions that Alter feels should be taken as settled in the study of the ECJ/international courts are set out in the introductory chapter. First and foremost is the notion that legal interpretation sits somewhere in the middle of the principled application of doctrine and the exercise of power, and the degree to which it is pulled one way or the other is the “stuff” of law and politics. Second, understanding the transformative capacity courts requires something more than the analysis of legal decisions. Finally, she advocates the twin rejections of neo-functionalist theory as an appropriate means of understanding legal integration (at least in the context of the EU) and of principal-agent theory as a useful meta-framework for the study international courts.

UNJUST ENRICHMENT AND PUBLIC LAW: A COMPARATIVE STUDY OF ENGLAND, FRANCE AND THE EU

by Rebecca Williams. Oxford: Hart Publishing, 2010. 304pp. Hardcover. £50.00/$100.00. ISBN: 9781841134147.

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

pp.472-475

Many in the United States do not think about how cases are decided in Europe;most Americans do not know what the English Unjust Enrichment Law is or how it compares to the French or EU law. A comparison of these four “legal systems” (including the U.S. courts) shows they are all different, which means that the way that each decides cases is also different. One place this is demonstrated is in determining the role the public and private law have to play in deciding cases in each European legal system.

In Europe there have been numerous discussions regarding the public and private law issues involving cases (such as WOOLWICH EQUITABLE BUILDING SOCIETY v. IRC, MINISTRE DE LA RECONSTRUCTION ET DU LOGEMENT C SOCIÉTÉ SUD-AVIATION, and Mannesmann AG v. HIGH AUTHORITY), mainly questioning the differences in the court systems and the claim amounts given out from their decisions. Some experts, such as Peter Birks feel that public and private law issues are difficult and want to stay in the private realm. This view is not always the norm though, and can be considered pragmatic, because it does not consider theoretically where the dividing line between public or private law is for a given case (Mitchell and Oliver 2009), where public bodies may require public laws putting them under a different set of rules. Without a theoretically clear dividing line, it is unclear what actually would prompt the use of public law; many times it can be just the litigants' preference for a certain type of public law procedure.

Private law usually reflects property ownership or employment issues, cases that involve an individual. Until recently, jurisdiction was clearer, and cases were decided on ahead of time to be only private or only public. Now there are two hybrid models being used to determine where to draw the public and private line. These two models together are known as remedies jurisprudence (or “natural procedural autonomy” (Galetta 2010) if most of the responsibility is given to the Members States). This concept is mapped out by van Gerven in order to show the division of labor between the European Court of Justice (ECJ) and the national courts (p.501). Van Gerven further defined the concepts of the terms starting with rights being legal positions, remedies being classes of action, and procedures being what govern the classes of action and uphold the legal positions. Even a simple definition like this is confusing. Birks defines van Gerven’s concept of “remedy” even better as an “actionable story,” and many of Birks's conclusions are similar to van Gerven’s. How do the hybrid models help us understand the difference between public law and unjust enrichment? And, why is this important? [*473] How does law work in England, France, and also the European Union (EU) when looking at cases that involve both the private and public laws?

POLITICAL AND LEGAL ADVENTURERS: FROM MARX TO MOYNIHAN

by Jeffrey O’Connell and Thomas O’Connell. Durham, NC: Carolina Academic Press, 2009. 302pp. Paper. $30.00. ISBN: 9781594602849.

Reviewed by Sheila Suess Kennedy, Professor of Law and Public Policy, School of Public & Environmental Affairs, Indiana University Purdue University Indianapolis. Email: shekenne [at] iupui.edu.

pp.469-471

I enjoyed reading this book. Unfortunately, I found it enjoyable for the same reason I found it flawed: reading it was like eavesdropping on a conversation between two men of a certain age (in this case, brothers) who are reminiscing over drinks about people they had known and worked with over the course of accomplished careers. There were all sorts of interesting tidbits and insights into the lives and characters of those they chose to chronicle, but the book also has the meandering, uneven, unstructured quality that characterizes such reminiscences.

The book is best described as a collection of “mini-biographical chapters,” some of which are devoted to one person, others of which compare and contrast two people who may or may not have been contemporaries and may or may not have had any other recognizable connections.

Some of the figures chosen for inclusion will be familiar to most readers – Pat Moynihan, Karl Marx, Felix Frankfurter, John Kenneth Galbraith, Walter Lippman. Others are considerably less well-known: Joseph Tumulty, William Beveridge, Keith Joseph, Belle Moskowitz.

The authors divide the book into four sections, focusing first on figures who at one time or another held elective office, then on people who operated “behind the throne,” and concluding with subjects whom they categorize as “zealots” and “litigants.” Those somewhat arbitrary and unexplained section headings provide the entirety of the book’s structure. There does not seem to be any overarching theme or expository thesis that would explain why the authors chose the particular individuals they included in the book and why they did not choose others. The book does not appear to be chronologically ordered or discernibly thematic. Most of the subjects were from the United States, but several others were not. Some were lawyers; others were not. In short, if there was any systematic justification for either the choice of their biographical subjects or the decisions to pair up some of them and not others, it was not apparent to this reader. If, as one suspects, these subjects were chosen because the authors either knew them personally, or found them interesting, an introduction explaining that fact would have been preferable to simply presenting readers with an unconnected jumble of chapters.

PUBLIC LAW AFTER THE HUMAN RIGHTS ACT

by Tom Hickman. Oxford, UK and Portland, OR: Hart Publishing, 2010. 360pp. Paperback. £45.00/$90.00. ISBN: 9781841139692.

Reviewed by Stephen James, Centre for Dialogue, La Trobe University, Australia. Email: Stephen.James [at] latrobe.edu.au.

pp.465-468

Tom Hickman’s work on the United Kingdom’s Human Rights Act 1998 is ‘about how human rights principles have integrated with public law doctrines and, most importantly, how they should integrate. It is a book about the transformation of public law’ (p.1). Even the term ‘public law’ reflects some of this transformation, as does its use in Australia. While the term public law had always been used in Australia and the United Kingdom to broadly differentiate law that revolved around the state (such as criminal law) from the private law of contracts and torts, for example, its use to encompass constitutional law, administrative law, and arguably the constitutionalism associated with it, is much more recent. In this respect there is a clear contrast with the long use of the term in the more explicitly rights- and value-oriented context of American constitutional law (a fact reinforced by the teaching of ‘public law’ in American departments of ‘government’, ‘politics’ or ‘political science’; think, for example, of professors Edward Corwin and Walter Murphy at Princeton University).

Hickman, a ‘public law’ and human rights barrister at Blackstone Chambers, London, brings practical understanding to bear on his thoroughly researched, lucid, elegant and sometimes witty analysis of the relevant academic literature and English and selected European cases, and of the brief but useful Australian (e.g. the state of Victoria’s legislative Charter of Human Rights and Responsibilities (2006)), Canadian and New Zealand examples he employs.

The book essentially defends the capacity of English common, administrative and constitutional law and constitutionalism to adapt to the new culture and provisions of the Human Rights Act, which draws upon the civil and political rights of the European Convention on Human Rights (1950).

ENCOUNTERING RELIGION IN THE WORKPLACE: THE LEGAL RIGHTS AND RESPONSIBILITIES OF WORKERS AND EMPLOYEES

by Raymond F. Gregory. Ithaca, NY: Cornell University Press, 2010. 280pp. Hardcover. $55.00. ISBN: 9780801449543. Paperback. $19.95. ISBN: 9780801476600.

Reviewed by Dylan Weller, Department of Political Science, Hobart and William Smith Colleges. Email: dweller [at] hws.edu.

pp.462-464

ENCOUNTERING RELIGION IN THE WORKPLACE by Raymond F. Gregory, while short on analysis, is a well-rounded and engaging synopsis of religious discrimination law. Gregory has written three previous books on the legal rights of workers regarding age discrimination, gender discrimination, and sexual harassment. This book on religious discrimination rounds out his investigation of Title VII cases, providing both a readable overview, as well as a unique first-hand perspective from a lawyer with decades of experience in the field.

The book is generally well structured, beginning with an examination of some fundamental questions regarding religious discrimination and the workplace. Gregory provides a good deal of basic information related to Title VII, and examines a variety of cases, which serve to illuminate the central points of contention that can lead to workplace related, religious discrimination claims. Some common themes include proselytization in the workplace, religious symbols and garb, the observance of religious rituals inside the workplace, and the observance of religious holidays requiring absence from work. Gregory also examines a variety of cases related specifically to religion in the public-sector workplace, drawing careful distinctions between the differing obligations of both public-sector and private-sector employers. In one of the most intriguing sections of the book, Gregory turns to some interesting exemptions to religious discrimination laws granted to religious institutions. The book concludes with some general principles regarding both employers’ and employees’ responsibility to find reasonable accommodation for religious practices; as well as some summary remarks on the importance of exploring alternatives to litigation.

As Gregory observes, many of the basic issues pertaining to Title VII claims are seemingly simple questions that prove exceedingly difficult for courts to uniformly address. Gregory makes use of an amply stocked supply of case summaries to wade through murky judicial waters, taking considerable time to ponder a variety of perplexing questions: What is a religion, legally defined? Will an employer run afoul of Title VII if an employee is fired for belonging to a “religious” group whose sole mission is the advancement of white supremacist ideology? How do the courts determine sincerity of belief? If an employee suddenly avows an increased devotion to observing the Sabbath after being asked to work a weekend shift, are the courts likely to accept the employee’s profession of belief? Gregory recounts case after case, [*463] drawing attention to the difficulties courts face in attempting to iterate some general guidelines for assessment. The book highlights those areas in which legal precedent has been clearly established, while remaining always attuned to the areas of Title VII law that are less concretely defined.

ADVANCING THE BALL: RACE, REFORMATION, AND THE QUEST FOR EQUAL COACHING OPPORTUNITY IN THE NFL

by N. Jeremi Duru. New York: Oxford University Press, 2011. 224pp. Hardback. $24.95/£15.99. ISBN: 9780199736003.

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

pp.459-461

In the beginning of the 1989 National Football League (NFL) season, all of the 32 head coaches were white. In the 2010 season, there were seven African American head coaches at the helm of NFL teams. In ADVANCING THE BALL, N. Jeremi Duru, a law professor at Temple University, traces the struggles that led to the expansion of head coaching opportunities for African American men and other men of color. In so doing, Duru has written a masterpiece of social inquiry, depicting an important modern-day civil rights story.

Duru tells a persuasive story, in a compelling way. The book reads like a legal drama with character development, thick descriptions, suspense, and seemingly insurmountable obstacles to overcome in the fight for race reformation in the NFL. The central protagonist of the story, Cyrus Mehri, is a lawyer made famous in legal circles through successfully winning a civil case against Coca-Cola. Mehri begins a fight against racial injustice in the NFL out of pure interest with no possible remuneration. His fight is guided not just by injustice in the NFL, but by the important example the NFL sets for American society given its popularity as a central institution of American culture. Duru suggests that Mehri’s motivation stems largely from a belief that “racial progress in the sports world often helped propel broader societal progress” (p.30).

As the plot continues, Duru describes how Mehri enlists the help of others to further his cause. He joins forces with another charismatic lawyer, Johnnie Cochran, who is best remembered for successfully defending O.J. Simpson in a high-profile murder trial. The two lawyers formed a team that was both successful in their vocations and had public notoriety from high-profile cases they had won. Fighting the NFL would prove to be a difficult challenge, however, because there was no complainant to which they were seeking damages, nor a clear target to wage their battle against. From the outset, it was unclear whether it was the individual owners and managers of teams in the NFL who were to blame for racial inequalities, or if it was the main office of the league. Mehri and Cochran decided that it was both, but that the league could step in and dictate the terms that could lead to the end of racial injustice within each organization.

CULTURES OF LEGALITY: JUDICIALIZATION AND POLITICAL ACTIVISM IN LATIN AMERICA

by Javier A. Couso, Alexandra Huneuus, and Rachel Sieder (eds). New York: Cambridge University Press, 2010. 312pp. Hardback $85.00/£55.00. ISBN: 9780521767231. eBook. $68.00. ISBN:9780511731044.

Reviewed by Miguel Schor, Visiting Professor of Law, Drake University School of Law, 2010-2012, Professor of Law, Suffolk University Law School. Email: mschor [at] suffolk.edu.

pp.456-458

Latin America democratized in the 1980s and underwent profound constitutional transformations. It has proven easier to implement electoral democracy, however, than to realize constitutional guaranties. How to institutionalize the operative rules of the democratic game has become, therefore, a pressing research issue. While there is a reasonably vast literature on democratization, the literature on how to make constitutions work, on the other hand, is significantly thinner. The relative dearth of literature on constitutionalism says less about the importance of the topic than it does about the state of interdisciplinary scholarship in academia.

CULTURES OF LEGALITY: JUDICIALIZATION AND POLITICAL ACTIVISM IN CONTEMPORARY LATIN AMERICA plays an important role in helping to fill this gap. It is a challenging collection of essays written by a group of first-rate scholars well versed in the political science literature on courts. The introduction (Huneeus et al. at pp.3, 7) defines legal culture as a set of contested and changing ideas and argues it is a useful construct in understanding the role that courts play in the new democracies throughout the region. Although ideas matter in understanding why citizens are increasingly turning to courts to deal with disputes once thought to be political in nature and why courts are responding with useful outputs, the role of legal ideas has been understudied and under-theorized by the social science scholarship on courts (Schor 2009, pp.188-192).

The various chapter studies both deepen and challenge the thesis that ideas matter in understanding judicial behavior. Kapiszewski’s (pp.51, 52) study of the Brazilian national high court argues that we need to combine institutional and cultural explanations for an adequate account of why courts “become engaged in politics.” Judicial independence and professional competence are a necessary but not a sufficient explanation for judicial behavior. Kapisweski (p.59) concludes that judicial “ideas about law and the judicial endeavor, and the practices they develop as they do their job, are at the heart of the cultural approach to explaining judicial decision-making.” The Mexican Supreme Court presents a puzzle since it first inserted itself into politics by vigorously enforcing separation of powers rather than effectuating constitutional rights. Ansolabehere (p.78) explores the role of “interpretive frameworks” in explaining why that court is becoming more active in effectuating rights. Huneeus [*457] examines why national high courts in Chile, Argentina, and Venezuela have resisted rulings from the Inter-American Court of Human Rights. The answer, she suggests (p.112), is that “judicialization and regional integration are not mutually reinforcing phenomena but, rather, in competition.”

PROTECTION OF FIRST NATIONS CULTURAL HERITAGE: LAWS, POLICY, AND REFORM

by Catherine Bell and Robert K. Paterson (eds). Vancouver: UBC Press, 2009. 464pp. Hardcover. CDN$85.00/US$94.00. ISBN: 9780774814638. Paperback. CDN$34.95/US$34.95. ISBN: 9780774814645.

Reviewed by Christa Scholtz, Department of Political Science, McGill University. Email: christa.scholtz [at] mcgill.ca.

pp.453-455

Editors Catherine Bell and Robert K. Paterson have put together a very thoughtful, valuable, and informative collection on the protection of First Nations cultural heritage. While only the names of the editors are on the book jacket, this publication is the heavy fruit of close collaboration and partnership between legal scholars, anthropologists, at least one archeologist, and First Nations communities. The First Nations research partners are the Hul’qumi’num Treaty Group, the Ktunaxa Nation, the Luuxhon House/Gitanyow, the Mookakin Cultural Society (Kainai Nation), the Oldman River Cultural Society of the Piikani Nation, and the U’mista Cultural Society. The depth of analysis and nuance conveyed in this volume would have been impossible without such a layered collaboration, and it is this which distinguishes the publication from the many other academic volumes on First Peoples and the law, in Canada and elsewhere.

This is the second volume in a two-part series on cultural heritage. Where the first volume (edited by Catherine Bell and Val Napoleon) features detailed community case studies and First Nations voices more directly, this second volume primarily bears the imprint and voice of its legal academic expertise. This second volume examines how First Nations cultural heritage exists at the intersection of “First Nations laws, the common law of property, aboriginal constitutional rights, and federal and provincial property and other legislation” (p.3). This “complex web” (Bell and Paterson at p.3) is examined with respect to four key heritage issues or categories: the repatriation and trade in First Nations material culture; the treatment of heritage sites and ancestral remains; intangible heritage, defined here as traditional knowledge and intellectual property; and international human rights law and policy. The authors thus address a wide range of issues, but a unifying message is heard throughout. That is, the authors struggle with the limitations of these regimes. It is first voiced in the preface by Chippewa scholar Darlene Johnston, when she writes “… I remember a time when … I believed that law was the answer” (p.vii). While many of the authors have dedicated their academic lives to legal study, this is not a tome by a law school cheerleading squad. The protections and advantages of law are never untethered here from their very real limitations and impediments, including possible incommensurabilities between First Nations conceptions of their heritage and those of settler law (Ziff and Hope, at p.196). Instead, there are issues which recur and defy legalistic resolution (Paterson at p.172). In light of this serious consideration of law as a [*454] necessary imperfection, chapters on non-legal instruments (Bannister at p.278) and a re-embedded political approach to cultural heritage protection (Napoleon at p.370) are critical parts of a broader reform agenda.

CONSTITUTIONAL SENTIMENTS

by András Sajó. Yale University Press. New Haven and London, 2010. 400pp. Hardcover. $ 75.00. ISBN: 9780300139266.

Reviewed by Bogdan Iancu, University of Bucharest, Faculty of Political Science. Email: bogdan.iancu [at] fspub.unibuc.ro.

pp.446-452

Modern constitutionalism, as we know it, is a creation of the Age of Enlightenment. Of course, wholesale references to the Enlightenment obfuscate the ambiguous and metonymical character of the term and phenomenon. Both elude doctrinaire reductions and stand as proxies for a congeries of irreducible and often contradictory ideas and tendencies (see Stollberg-Rilinger 2000). Nonetheless, caveat aside, the dominating philosophical/ideological theme of the eighteenth century is an adamant belief in human reason. Slightly oversimplifying, according to the main tenet of this new-found faith in rationality, human reason unaided and unabetted was to reign supreme, freed from the fetters and props of all forms of antiquated prejudice and irrationality (see Cassirer 2007).

Needless to say, human reason as such and unwavering belief in it are two somewhat different matters. One needs only cursorily glance through Kant’s 1784 manifesto and, behind the cold and unassailable logic of the argument, a subdued yet strong emotion is immediately apparent: the quasi-religious enthusiasm with which the philosopher urges decanting human thinking powers, to liberate reason from all past hindrances. The famous Kantian formulation is ‘walking aids’ (“Gängelwagen” der Vernunft): once redundant prostheses are removed, reason could stride freely and its march would in turn liberate mankind from its limitations. To his French contemporary, the Marquis of Condorcet, the future progress of this rational humanity was not only unavoidable but also limitless. From the vantage point of Gallic panache, the achievement of immortality itself seemed only a matter of time (Condorcet 1988).

The normative constitution is commonly believed to reflect emphatically these intensive, Enlightenment-derived demands on and of rationality: it is, unlike its older, ‘descriptive’ counterpart, a purposefully contrived, unitary juridical codification of the major rules governing the polity and predetermining the legal system (Grimm 1988). Indeed, from a juridical standpoint the fundamental law literally constitutes the legal conditions of the possibility of the state. Namely, the modern, written, normative constitution replaces older, “external” criteria of legality and legitimacy deriving from natural law and natural right with “its own transcendental-theoretical kernel of self-referentiality evinced by the reflexive reason (die sich selbst beurteilende Vernunft)” (Luhmann 1990, at 187).

FUGITIVE SLAVE ON TRIAL: THE ANTHONY BURNS CASE AND ABOLITIONIST OUTRAGE

by Earl M. Maltz. Lawrence, Kansas: University Press of Kansas, 2010 (Landmark Law Cases and American Society Series). 192pp. Cloth. $34.95. ISBN: 9780700617357. Paper $17.95. ISBN: 9780700617364.

Reviewed by Mark Golub, Department of Politics and International Relations, Scripps College. Email: mgolub [at] scrippscollege.edu.

pp.439-445

It may be difficult for modern readers fully to grasp the extent to which public life in Boston was consumed by the events surrounding the capture and rendition of Anthony Burns in the spring of 1854. A fugitive slave from Virginia, Burns came to serve as a focal point in sectional and national crises over the place of slavery in the expanding Republic and, more importantly, the possibility of containing those crises within the existing constitutional order.

At every stage of the case, crowds gathered outside the courtroom (itself ringed with chains and military guard) as abolitionist mobs contemplated the use of force. A botched rescue attempt left one guard dead but failed to liberate the prisoner. On the day of his rendition, tens of thousands of protesters filled the streets to see Burns – surrounded by a hollow square of 100 U.S. Marshals and their deputies, a detachment of U.S. Army Infantry, two companies of marines, an artillery troop with nine-pound artillery piece, and the entire Boston police force – transported from the courthouse to the wharf and then, by boat, on to Virginia and slavery.

Earl Maltz has written a sleek, streamlined history of the Burns case – his second contribution to the University of Kansas’s Landmark Law Cases series – that no doubt will become the standard reference for legal scholars while at the same time providing a suitable introduction for a more general reading audience. FUGITIVE SLAVE ON TRIAL: THE ANTHONY BURNS CASE AND ABOLITIONIST OUTRAGE follows the legal proceedings closely, while providing just enough social and historical context to make sense of the case as a product of political forces larger than itself. In just 158 pages (plus a helpful chronology and brief bibliographic essay in lieu of footnotes) the book covers relevant constitutional background, Burns’ escape, capture, trial and rendition, as well as the case’s aftermath – in which pro-Union political forces brought indictments against abolitionist rioters/rescuers while abolitionists targeted Judge Loring, the Federal commissioner who presided over the proceedings, for removal from office.

KEEPING FAITH WITH THE CONSTITUTION

by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder. New York: Oxford University Press, 2010. 248pp. Hardcover. $21.95/£13.99. ISBN: 9780199738779.

Reviewed by Philip Shadd, Department of Philosophy, Queen’s University (Kingston, ON). Email: philip[dot]shadd[at]queensu[dot]ca.

pp.434-438

Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder frame their argument in KEEPING FAITH WITH THE CONSTITUTION by dividing existing theories of constitutional interpretation into two camps, and by presenting their own theory as a third option (pp.25-26). On the one hand are theories that argue the constitution should be interpreted as the original Framers would have understood it; on the other are those that argue the constitution should be viewed as a “living tree.” The theory proposed by the authors – “constitutional fidelity” – is preferable to both because it recognizes that in order to be faithful to the constitution, interpretations must account both for the principles of America’s jurisprudential past as well as for the changing social contexts in which those constitutional principles must now be applied. Only in this way can the constitution remain a vital and democratically legitimate document for future generations of Americans. Although they initially frame their approach as an alternative to two others, it becomes clear as the book progresses that the main position with which constitutional fidelity is to be contrasted is Originalism. Indeed, while one way in which the argument of the book might be sharpened is to more clearly distinguish constitutional fidelity from “living tree” approaches, one of KEEPING FAITH WITH THE CONSTITUTION’s main achievements is the anti-Originalist argument it convincingly makes with reference to a host of cases from American history.

The book breaks naturally into two parts. The first two chapters provide a brief introduction to the history of the American constitution and explain the theory of constitutional fidelity. Chapters 3 through 9 illustrate the practice of this style of constitutional interpretation with cases from American history. The opening historical discussion includes a survey of relevant aspects of the 1789 Constitution, of the Bill of Rights, and of the Reconstruction and Post-Reconstruction Amendments. It helpfully familiarizes the reader with many of the relevant constitutional facts that will be under analysis for the rest of the book, and is part of what makes the book a very readable and user-friendly volume. Most of the work’s philosophical elaboration of the theory of constitutional fidelity proceeds in Chapter 2.

BONG HiTS 4 JESUS: A PERFECT CONSTITUTIONAL STORM IN ALASKA’S CAPITAL

by James C. Foster. Fairbanks: University of Alaska Press, 2010. 384pp. Paperback. $29.95. ISBN: 9781602230897.

Reviewed by Jerome O’Callaghan, Associate Dean, Arts and Sciences, State University of New York at Cortland. Email: Jerome.Ocallaghan [at] cortland.edu.

pp.430-433

In his introductory notes to BONG HiTS 4 JESUS, James C. Foster identifies the tradition of in-depth analysis of particular Supreme Court cases that he truly admires; the tradition involves taking one case (or a small set) and delving into its legal, political, anthropological, and literary dimensions. He refers to authors such as Alan Westin, Peter Irons and Anthony Lewis in this context – many readers will immediately know what to expect. While Westin, Irons et al. tackled landmark opinions, Foster takes his microscope to a case somewhat less elevated, MORSE v. FREDERICK, a student free speech case originating in 2002 in Juneau, Alaska. MORSE took a five year odyssey to the United States Supreme Court in 2007 and then came to a painful conclusion in the fall of 2008. As Justice Holmes once put it, “the character of every act depends upon the circumstances in which it is done” and it is the circumstance of MORSE v. FREDERICK that entices Foster to a book-length analysis.

In the beginning we should have the facts of the case but in MORSE some key facts are problematic. Beyond dispute is that a school district approved an event where students would line the street to cheer on the Winter Olympic torch relay as it passed in front of Juneau-Douglas High School. Students were released from the school building and lined both sides of the street; some were on school property, some were not. It was January in Alaska, no one was going to stay waving at the relay, or the TV cameras, for very long. Principal Deborah Morse was present, trying to minimize snowball incidents. One group of students wanted to attract TV coverage by displaying a banner with a provocative slogan. The slogan they chose was "BONG HiTS 4 JESUS." Joseph Frederick was one of that group, and he was the one holding the banner when the Principal crossed the street, confronted him and seized the banner. Frederick was subsequently punished for a variety of infractions of school policy. As for why the banner had that particular slogan, Frederick can only offer that we "wanted to piss people off" (p. 27).

One of the key complications of this case is that the banner was not on school property, neither was the student who was punished. In fact Frederick had not yet attended school that day; he was, at least in his own eyes, a truant. The relay was not a school event -- but cheering it on was a school-sponsored event. There are strong arguments on each side as to whether this was a school speech case in the first place. The other contextual problem is the meaning of the slogan. It has been characterized as both gibberish and pro-drug advocacy. Priding himself on being an outsider and provocateur, Frederick claims it was not designed to [*431] advocate anything. He wanted to assert his rights, simply, to be controversial. Somehow he was surprised when the controversy blew up in his face.

CRITICAL CRIMINOLOGY IN CANADA

by Aaron Doyle and Dawn Moore (ed). Vancouver, British Columbia: UBC Press, 2011. 336pp. Hardcover. CDN$90.00/US$99.00. ISBN: 9780774818346 Paperback. CDN$34.95/US$37.95. ISBN: 9780774818353.

Reviewed by Caryl Segal, Department of Criminology and Criminal Justice, University of Texas at Arlington. Email: csegal [at] uta.edu.

pp.426-429

Unlike in the United States, criminology is a very popular undergraduate major in Canada. Government job opportunities are limited in both countries because of fiscal constraints and, in some cases, political party affiliation. The Canadian Conservative government is not open to any expertise that does not support the law and order agenda it espouses, which has also served to close the potential employment door for many.

In spite of falling crime rates, and its own research showing that mandatory minimums are counterproductive and cost ineffective, the Canadian Conservative government will not consider revisions from its stated agenda, according to the introductory material in CRITICAL CRIMINOLOGY IN CANADA, edited by Aaron Doyle and Dawn Moore. This has negative impacts upon researchers, especial those in critical criminology.

The various authors contributing to this anthology can be grouped into six areas of expertise that range from the future of “critical criminology” to the role of criminologists in politics and criminal justice policy in Canada. The editors decry the lack of places to publicize their findings, which are often contradictory to governmental policy. They also claim that this results in public ignorance.

When asked to approve bonds to build more prisons or spend money in other criminal justice areas, public voting is rarely based on a study of the facts. The authors note that blogs and wikis are opening areas for a different form of news-making criminology, but whether they are being fully or even partially utilized to publicize critical criminology theory is not mentioned. Major failings of the book include the many statements made without explaining the basis for the statement, and no references are provided for further information. In addition, Doyle and Moore embrace the premise that American criminology has been compromised by its alignment with the criminal justice system; however, little explanation is given as to the basis of this belief or its rationale. Nor do they explain what they actually mean by compromised and how this is a negative.

A Reply to Professor George W. Liebmann’s Review of REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM

by David E. Bernstein. Chicago: University of Chicago Press, 2011. 208pp. Cloth. $45.00 ISBN: 9780226043531. E-book. $7.00 to $45.00. ISBN: 9780226043180.

pp.424-425

Author’s reply: David E. Bernstein, Foundation Professor, George Mason University, School of Law. Email: dbernste [at] gmu.edu.

(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

I am writing in response to George W. Liebmann’s review of my book, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM, that appeared in Volume 21, No. 7 of LPBR.

To borrow a phrase from Liebmann, his review is not without its merits. But I feel moved to respond for several reasons.

First, Liebmann begins his review by claiming that the book is “essentially a brief for ‘conservative’ judicial activism,” and he later advises that I implicitly call for a “return to economic due process.” This is incorrect. REHABILITATING LOCHNER is a work of history. It concludes that LOCHNER v. NEW YORK “has been treated as a unique example of constitutional pathology to serve the felt rhetorical needs of advocates for various theories of constitutional law, not because the decision itself was so extraordinary, its consequences so bad, or its anti-statist presumptions so clearly expelled from modern constitutional law.”(page 6)

But the book draws no normative conclusions about current constitutional practice and indeed explicitly disclaims such conclusions. As I write on page six of the book, “even the soundest history cannot provide a theory of constitutional interpretation, nor can it dictate one’s understanding of the proper role of the judiciary in the American constitutional system.” The history I present, therefore, is inherently agnostic on whether LOCHNER or any other case discussed in the book was correctly decided, much less on the proper outcome of broad contemporary debates about “judicial activism.” Liebmann should have reviewed the book that was actually written, not the strawman-of-a-book that he proceeds to knock down.

INTERNATIONAL RELATIONS THEORY AND INTERNATIONAL LAW: A CRITICAL APPROACH

by Adriana Sinclair. New York: Cambridge University Press, 2010. 210pp. Hardback $90.00/£55.00. ISBN: 9780521116725. Paper $29.99/£17.99. ISBN: 9780521133463. eBook. $24.00. ISBN: 9780511911156.

Reviewed by Benjamin O. Arah, Department of History & Government, Bowie State University. E-Mail: barah [at] bowiestate.edu.

pp.421-423

Adriana Sinclair is a specialist in the fields of globalization, international relations, and international political history at the University of East Anglia. In writing this important interdisciplinary text, she endeavors to critically examine and explicate the pivotal role that international law plays in informing and influencing contemporary international relations and global politics. One of her goals is to use this book to subtly expose and “challenge our unthinking assumptions about law.” She demonstrates the dynamic relationship between international relations theory and international law, would maintain that international law has become a “pervasive field,” and her emphasis is on legal methodology and jurisprudence. Sinclair’s point is clear and coherent, and she puts it succinctly that international law is inseparable from and central to international relations. The choice of “critical approach,” as reflected in the sub-title of the book, is self-explanatory and an indication that the author is evaluative and passionate in her bold effort to challenge the existing constructivist inadequate scholarship and theorization about international law with respect to its pervasive role in shaping contemporary international relations. Thus, the book is an open invitation to her three audiences (international relations theorists who work in the area of international law, all international relations theorists, and lawyers interested in international relations) to develop a better understanding of this intricate relationship and, by implication, is necessary in order to rectify and remedy, what she considered to be, the “serious errors” in conceptualization that lead to “poor theorization of international law and its place in international politics.” Sinclair would blame part of the “unthinking assumptions” and misunderstanding of the critical role of law in politics on the international relations’ constructivist school for the apparent flaws or errors in both its theoretical foundations and treatment of law.

In order to set the record straight and, in a way, rehabilitate or develop a more acceptable understanding of the intricate “cross-over” relationship between law and politics, Sinclair undertakes a critical and detailed examination of the contemporary constructivist positions for an exposition of is theoretical weakness and inadequacy. She succeeds remarkably in this effort, by confronting and engaging the celebrated ideas and works of Nicholas Onuf and Friedrick Kratochwil. Both Onuf and Kratochwil are considered as the pioneers of the international relations school of constructivism, as discussed in Chapter 1. Sinclair’s assumptions and [*422] perspectives, with respect to her argument about the increasing role of international law in international politics, make sense and is persuasive. This book is unique and has provided a new paradigm for looking at and understanding the relationship between international relations and international law, as both are inseparable from each other. A good working knowledge of international law is crucial for understanding international relations in the post-9/11 global politics. What she advances, with this paradigm, is that international relations theorists need to have well-ground understanding of international law in order to have a deep appreciation of the reciprocal relationship that exists between international law and international politics, but knowledge of international politics alone without a corresponding knowledge of international law will continue to remain inadequate and produce incoherent, inaccurate and untenable theorization and uncritical assumptions.

CONGRESS SHALL MAKE NO LAW: THE FIRST AMENDMENT, UNPROTECTED EXPRESSION, AND THE U.S. SUPREME COURT

David M. O’Brien. Lanham, Md: Rowman & Littlefield Publishers, Inc., 2010. 150pp. Hardcover. $29.95. ISBN: 9781442205109. Electronic. $29.95. ISBN: 9781442205123.

Reviewed by Brian K. Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu.

pp.416-420

David M. O’Brien, the Leone Reaves and George W. Spicer Professor of Politics at the University of Virginia, is a scholar whose works are probably known to most readers of this review. As the author of the well-respected STORM CENTER, as well as a popular undergraduate textbook for Constitutional Law-Civil Liberties courses (CONSTITUTIONAL LAW AND POLITICS), among other books and a vast number of articles, O’Brien has for decades now been one of the nation’s most astute observers of the Supreme Court — and especially the political significance of the institution. In CONGRESS SHALL MAKE NO LAW, O’Brien offers his contribution to the “Free Expression in America” series of the First Amendment Center, which as the series editor explains, “attempts to buttress the proud edifice of the First Amendment by better informing Americans about it” (p.xii).

The book contains six substantive chapters and one appendix, packaged in a scant eighty-five pages of actual text. Chapter One opens with what will be a familiar review of free speech case law for anyone who teaches the material. O’Brien fleshes out the differences in reasoning between “ad hoc balancing” and “absolutism,” with the cases (e.g. ABRAMS v. UNITED STATES and DENNIS v. UNITED STATES) providing examples of the various approaches; he then explains how “the Court gradually evolved a principled or definitional balancing approach to the First Amendment” (p.11), meaning that the Court began conceiving of speech in terms of categories that either were or were not protected forms of expression per se. Definitional balancing conveys the current Court’s approach to the First Amendment, O’Brien argues, although within both categories the justices have “balanced freedom of expression and perceived harms — harms both public and private — based on the context and medium of expression” (p.13). And so, the following chapters take up the charge of evaluating the judicial line-drawing in this arena, specifically attending to obscenity, defamation, commercial speech, and fighting words/disruptive expression, while also exploring how and why these categories failed to find constitutional protection in various contexts.

Chapter Two deals with obscenity, pornography, and indecent expression and includes a review of the familiar cases in this domain (e.g. ROTH v. UNITED STATES and MILLER v. UNITED STATES) and the reasoning that sustained them, while explaining as well the Court’s contemplation of the “special case” of children (e.g. NEW YORK v. FERBER and UNITED [*417] STATES v. WILLIAMS) and potential harms to captive audiences and the general public when indecent expression is involved (e.g. COHEN v. CALIFORNIA and F.C.C. v. PACIFICA FOUNDATION). Drawing on his summaries of these and other cases, O’Brien concludes that as the Court confronts future First Amendment challenges to its line-drawing in different contexts, its responses “will turn not on a categorized approach, but rather a highly contextualized, nuanced approach to the circumstances, alleged harms, and modes of communication, as well as its own changing composition and deference to Congress and the states” (p.36). As I will discuss more below, conjecture of this sort is difficult to dispute when set forth in such an abbreviated manner.

THE NEW LAW OF PEACEFUL PROTEST: RIGHTS AND REGULATION IN THE HUMAN RIGHTS ACT ERA

by David Mead. Oxford and Portland, OR: Hart Publishing. 2010. 530pp. Paper. $90.00/£45.00. ISBN: 9781841136219.

Reviewed by Deidre Bourke, Faculty of Law, University of Auckland. Email: deidre.bourke [at] gmail.com.

pp.411-415

This text, by David Mead, provides a comprehensive review, and critical analysis, of the legal framework regulating protest in the United Kingdom today. This is no small task in a field growing ever more complex due to the introduction, in recent years, of a huge array of overlapping criminal justice and anti-terrorism laws. The powers of the police, the range of new criminal sanctions available and rules regulating where and when protest may occur are examined. However Mead’s review extends still further to consider the use of private law measures, such as the tort of nuisance and civil injunctions by companies and other private bodies against protesters. In this way Mead provides an often over-looked aspect of the framework: how the public-private law divide impacts on protesters, both in terms of affecting where people can protest and what sanctions can be imposed on them. Mead pulls together the plethora of domestic legislation and case law affecting the right to protest in order to critically assess how protest rights operate in practice and what balance is currently being struck. A core part of his analysis involves tracing the impact of the Human Rights Act 1998 (‘HRA’) in this environment. In addition to an extensive review of the domestic framework Mead also provides the first detailed analysis of Strasbourg case law on Articles 10 and 11 of the European Convention on Human Rights 1950 (‘ECHR’), dealing with freedom of expression and freedom of assembly and association. Mead’s analysis of the Strasbourg jurisprudence is used to inform his evaluation of the domestic position and provides an interesting point for comparison. So detailed is the review of the ECHR case law many no doubt will find the text invaluable simply for this resource alone.

In the early chapters Mead explains some of the core distinctions made in his analysis. Protests for example are distinguished on the basis of whether they are entirely peaceful, disruptive or obstructive, and whether that disruption is incidentally or inevitably disruptive. The categorisation scheme adopted is that of Fenwick and Phillipson and their framework provides the basis for much of Mead’s analysis. Correspondingly, chapter 5 considers the rights of protesters in relation to peaceful protests where any disruption is incidental or short-lived, while chapter 6 deals with protests intentionally disruptive or obstructive. While such detailed categorisation may seem to overly complicate matters, and will always be blurry at the edges, the value of adopting such a framework becomes immediately clear when the domestic and Strasbourg jurisprudence is examined. The framework assists to disentangle, at least in part, the reasoning of the judges both in the United Kingdom and at [*412] Strasbourg. Mead’s analysis clearly demonstrates for example that obstructive and deliberately disruptive protest has little chance of protection under either the ECHR or HRA, and that restrictions on persons protesting in such a manner will inevitably be seen as both a justified limit on the protesters’ rights, and as proportionate. Interestingly however he notes that there appears to be increasing acceptance, at Strasbourgh, of incidentally disruptive protests, with the court more clearly starting to differentiate between simple disruption and actual disorder. This softening up in approach reflects clearer judicial recognition of the important role protest plays in a liberal democracy, and acceptance that to be an effective right, protests must be allowed to annoy or disrupt to at least a degree.

THE LEGAL FOUNDATIONS OF INEQUALITY: CONSTITUTIONALISM IN THE AMERICAS, 1776-1860

by Roberto Gargarella. New York : Cambridge University Press, 2010. 288pp. Hardcover. $85.00/£55.00. ISBN: 9780521195027. E-Book format. $68.00. ISBN: 9780511740794.

Reviewed by José Antonio Aguilar Rivera (CIDE), División de Estudios Políticos, CIDE, Mexico City. Email: joseantonio.aguilar [at] cide.edu.

pp.406-410

Roberto Gargarella’s book, THE LEGAL FOUNDATIONS OF INEQUALITY, has two undeniable merits. On the one hand it considers constitutions as important elements to explain political outcomes in Spanish America. For a long time constitutions in that part of the world were easily dismissed as irrelevant pieces of paper with no impact on real governance. Gargarella knows better: “the documents despite their mistakes and defects, actually defined the main features of the institutional structure of the countries in question” (p. 5). On the other, it sets out to give a proper account of constitutionalism in both Americas in the 18th and 19th centuries. Gargarella rightly examines American constitutionalism as a broader phenomenon that comprises both the American constitution and the Latin American charters. Very often the American case is analyzed in isolation as if the numerous Latin American constitutions were not part of the same political and legal experiment.

Gargarella asserts that constitutional democracies are in trouble since significant numbers of people do not trust their representatives and do not participate in party politics. One of the factors that might explain this situation, he claims, is the structure of the institutional system, as organized by its constitution. Thus Gargarella probes the historical origins of American constitutionalism. He finds three constitutional models: radical, conservative and liberal. Populist or radical constitutions were characterized by their political majoritarianism and their defense of moral populism, conservative models were defined by their defense of political elitism and moral perfectionism and liberal charters emphasized political moderation and moral neutrality. Gargarella divides the book in four sections. In the first three chapters he accounts for each one of these models as they gave life to the American charters. In the last one he makes a plea for egalitarian constitutionalism. The thesis of the book is clear: “I claim that, after the founding period examined here, the structure of most American constitutions reflected the liberal ideals or, as occurred in many Latin American countries, a combination of liberal and conservative ideals. I also claim that, in the end, these constitutions undermined, at least in part, the egalitarian commitments that were present at the time of the various revolutions seeking independence a commitment to the idea that all men are created equal as much as a commitment to the idea of collective self-government” (p.8). Yet, it is very difficult to place each constitution neatly in a single category. The author is well [*407] aware of this, since he acknowledges that “most American countries represented strange mixtures” of the three models. However he still proceeded as if such distinction could be tenable in most cases.

EFFECTIVE JUDICIAL REVIEW: A CORNERSTONE OF GOOD GOVERNANCE

by Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden, and Anne Scully-Hill (eds.). Oxford: Oxford University Press, 2010. 496pp. Cloth $175.00/ £75.00. ISBN: 9780199581054.

Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University. Email: oneillt [at] southwestern.edu.

pp.402-405

It is a daunting task to review a book with five editors and thirty-two authors. It is a challenging task when the subject is a comparative analysis of administrative law systems in nine nations. It is a frustrating task when, despite the editors’ best efforts, the whole is less than the sum of its parts.

The reader doesn’t find a clear statement of the central goals and assumption of the book until page 61: “core values of judicial review” operating in a common law system of administrative law “transcend constitutional and other differences between different legal systems,” making a comparative study worthwhile. The introduction asserts that the book’s central questions are “not just about how judicial review” facilitates "good governance” but also “whether it should be placed centre-stage” and what is good governance itself (p.4). The authors generally accept that the rule of law, procedural fairness, and the protection of human rights are at the heart of effective judicial review in administrative law. They are not always clear how and why judicial review demonstrates what “good governance” actually entails beyond this conventional trinity of court-centric concerns. Successive sections explore what are the foundations of judicial review, its role in administrative law, what is necessary for effective judicial review, the conditions necessary for an independent judiciary, and focused discussions of Hong Kong and Chinese trends in administrative law.

The rise of the modern administrative state poses special challenges to common law systems. Unlike the French administrative law tradition, where independent administrative courts were created with their own specialized procedures and mechanisms of legality, common law systems have had to either adapt common law perspectives to supervise bureaucratic policy-making through traditional due process doctrines or to create hybrid systems of traditional common law courts and new administrative tribunals.

In post-industrial nations there are “millions of contestable administrative decisions” made annually. Absent administrative dispute resolvers such as administrative tribunals, the formal court system would collapse (p.86). At the same time problems of overzealous or abusive bureaucratic practices have been compounded by the trend toward privatization of what were once assumed to be purely governmental activities and the concentration of power in the hands of the executive. The authors attribute the growth in court supervision of administrative actions to the increased scope and complexity of the [*403] administrative state, the passage of new constitutional instruments such as Hong Kong’s Basic Law, and a rights conscious citizenry willing to use the law to challenge or correct perceived abuses of public power (p.xxxiii).

THE POLICING OF TERRORISM: ORGANIZATIONAL AND GLOBAL PERSPECTIVES

by Mathieu Deflem. New York: Routledge, 2009. 230pp. Hardback $140.00. ISBN 9780415875394. ISBN 9780415875400. Paper $41.95. ISBN: 9780415875400. eBook. $39.95. ISBN: 9780203860380.

Reviewed by William R. Wood, University of Auckland, Department of Sociology. Email: w.wood [at] auckland.ac.nz.

pp.398-401

In the decade since September 11th, there has been a deluge of works on the political responses to terrorism in the United States. The bulk of these works have focused on how the U.S. has responded rightly, or wrongly, to terrorism since this time. Mathieu Deflem’s THE POLICING OF TERRORISM is not one of these works. Indeed, on the surface it does not take an overt position regarding what some see as the massive blunders of the Bush administration’s political response to September 11th, and others see as a largely successful response to terrorism that prevented further large-scale terrorist attacks in the United States.

Deflem does not ignore these debates, and mentions them in several places though his work. However, his primary focus is rather on the question of how policing agencies in the United States, Europe, Israel, and elsewhere are organized to respond to terrorism, and under what auspices such agencies function. The bulk of Deflem’s book thus involves a thorough overview of the organization and strategies of counterterrorism by policing agencies in the United States and globally. Deflem devotes significant attention to the policing of terrorism in the United States, particularly following September 11th, but he also gives ample attention to policing efforts in other countries (in particular Israel, Iraq and Afghanistan), as well as to international policing organizations, such as Interpol involved in counterterrorism.

However, it would be a mistake to read Deflem’s book simply as a thorough description of the policing of terrorism in these regions, even though many will undoubtedly find the book useful on this account alone. Rather, THE POLICING OF TERRORISM represents a continuation of Deflem’s earlier works, in particular his POLICING WORLD SOCIETY (2002), where Deflem has developed his theory of the “bureaucratization of police” as a means by which to both understand the historical emergence of modern police organizations, as well as a means by which to sociologically analyze their functions and actions within modern states. In the case of terrorism specifically, Deflem (p.19) argues, “Following the work of Max Weber (1922), the bureaucratization theory holds that modern counterterrorist police efforts are autonomously conducted on the basis of professional standards regarding the means and objectives of counterterrorism.” In this regard, Deflem’s argument in setting forth the need for a sociological investigation of the policing of terrorism is that policing agencies in industrial, democratic countries such as the United States [*399] function as more than simply an arm of political administrations or legislatures. “These policing activities take place even where political leaders and legislatures are unable to implement concrete counterterrorism measures,” argues Deflem (p.4), and it is inaccurate to simply read the “war on terror” as an amalgamation of military, intelligence, and policing agencies. Rather, Deflem (p.5) argues that a sociological approach to the analysis of the policing of terrorism “can elucidate what is important and peculiar about police work against terrorism relative to other efforts in the wider constellation of counterterrorism.”

DEBATING RESTORATIVE JUSTICE

by Chris Cunneen and Carolyn Hoyle. Oxford, UK, and Portland, Oregon: Hart Publishing, 2010. 210pp. Paperback. £15.00/$30.00. ISBN: 9781849460224.

Reviewed by William Lyons, Professor of Political Science and Director of the Center for Conflict Management at the University of Akron. Email: wtlyons [at] uakron.edu.

pp.393-397

DEBATING RESTORATIVE JUSTICE is the first volume in a new series called Debating Law, edited by Peter Cane, which seeks to provide two “strong and intellectually rigorous argument[s] on a topic of contemporary and ongoing debate” that will “stimulate, challenge and inform by bringing contrasting perspectives together in one volume.” In this volume, Carolyn Hoyle makes the case for restorative justice, while Chris Cunneen focuses on the limitations of restorative justice.

As a practitioner, critic and advocate of restorative justice, I was excited about the opportunity to review this volume. While the Cunneen essay is well worth reading, I was, however, deeply disappointed in the Hoyle essay on its own merits and as a counterpoint for Cunneen. For that reason, I would not assign this book to my students and recommend others consider both essays carefully before using this text.

The Limitations of Restorative Justice
Cunneen presents a carefully constructed and thoughtful critique of the substantial gap between restorative justice as a normative theory (let alone a transformative social movement) and a diverse set of practices, that at best fit comfortably within current punitive approaches or, at worst, practices that construct a ‘common sense’ legitimizaation for criminological and governance trends that reinforce existing inequalities and distort our ability to understand the complex relationship between law, governance, crime and punishment.

Cunneen argues that the gap between rhetoric and reality here obscures the informal and restorative elements of state criminal justice systems as well as the bureaucratic and retributive elements of restorative justice practice. Even more important, claims about the universality of restorative justice reveal a generalized insensitivity to context, contributing to a tendency to essentialize victims and offenders (as “unambiguous and uncomplicated individuals,” p.161) and rely on unexamined conceptual dichotomies like state and community or restorative and retributive that together create an image of restorative justice as “an international business” (p.103) designed more for reinforcing than challenging structural inequalities and injustices in our approaches to social control (p.106).

REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM

by David E. Bernstein. Chicago: University of Chicago Press, 2011. 208pp. Cloth. $45.00 ISBN: 9780226043531. E-book. $7.00 to $45.00. ISBN: 9780226043180.

Reviewed by George W. Liebmann, Liebmann and Shively, P.A. of Baltimore and Visiting Fellow of Wolfson College, Cambridge. Email: george.liebmann2 [at] verizon.net.

pp.388-392

This tendentious monograph is essentially a brief for ‘conservative’ judicial activism. It has been acclaimed by some defenders of fashionable ‘liberal’ jurisprudence like Jack Balkin and Mark Tushnet for disclosing “attractive resources in libertarian themes” and “discordant undertones [to] progressive themes.” Its villains are the ‘progressive’ judges: Holmes (the arch-villain), Brandeis, Frankfurter and Learned Hand; the role of Charles Evans Hughes is curiously slighted. A new generation of law students is to be taught that these judges were indifferent to state-imposed racial segregation, sex-specific labor laws, restrictions on private schooling and coercive eugenics and were “products of their prejudiced times,” Mr. Bernstein’s era being one of true enlightenment. Holmes is charged, not for the first time, with rejecting ‘natural law’ in favor of ‘German legal positivism.’ What is implicitly sought are judges who will return to an alleged libertarian ‘mainstream’ in politics and economics, in which “individual rights” are sustained against the assumed arbitrariness of legislatures by periodic forays by wise judges enforcing “natural rights” and condemning “class legislation.”

The monograph has its virtues. It exhausts the secondary law review literature on its subjects (though scarcely touching the historical and economic literature). Its prose is compressed and clear, though marred by the increasingly fashionable use of contractions and colloquialisms; there are many “didn’t”s and “won’t”s; the apostrophe appears to be the author’s favorite punctuation mark. We are thankfully spared the academic “liberal’s” promiscuous scattering of feminine pronouns. The proofreading is generally good, though there is one memorable howler; Holmes is converted into a born-again monarchist by a quotation (page 147 n.135) “I see no meaning in the rights of man except what the crown will fight for.” It is not the first book on the Lochner case; Paul Kens’ LOCHNER v. NEW YORK: ECONOMIC REGULATION ON TRIAL (1998) is more thorough and even-handed.

Professor Bernstein begins his historical account with the assertion that Dred Scott was not the first manifestation of substantive due process, pointing out that the Free Soil Party and the 1856 and 1860 Republican platforms advanced similar theories on the opposing side. This is certainly true, but no reader of the Lincoln-Douglas debates let alone the literature collected in Edmund Wilson’s PATRIOTIC GORE can doubt that competing constitutional [*389] fundamentalisms were a major cause of the Civil War. Prudential arguments, and the meliorative legislation they might have inspired, were lacking. As the Harvard philosopher William Ernest Hocking observed about abuses by the reactionary Weimar judiciary: “Right is psychologically a claim whose infringement is met with a resentment deeper than the injury would justify, a resentment that may amount to a passion for which men will risk life and property as they would never do for an expediency.”

SOVEREIGNTY AND THE STATELESS NATION: GIBRALTAR IN THE MODERN LEGAL CONTEXT

by Keith Azopardi. Portland, Oregon: Hart Publishing, 2009. 456pp. Hardback. £62.00/$124.00. ISBN: 9781841139166.

Reviewed by Lee P. Ruddin, LLB, MRes, PgCert, Roundup Editor, History News Network. Email: leepruddin [at] yahoo.co.uk.

pp.384-387

Keith Azopardi’s study on Gibraltar’s contested sovereignty is a worthy addition to the sparse literature on Sub-state governance.. Azopardi, a practicing lawyer, writes that “it is impossible in seeking a resolution to the legal dimensions of the Gibraltar dispute to sever this from the political context.” (p.123) Former Deputy Chief Minister Azopardi reaffirms this by stating in the same chapter that the “dispute is not only legal but also intensely political. It is a perfect example […] of the need to consider the linkage between law […] and politics.” (p.108)

“What Happened Then Matters Now,” goes History Today’s masthead, and there is no reason why Spain will give up its 300-year-fight against Britain for Gibraltar; indeed, if recent election results are anything to go by, the former is set to increase pressure on the latter to return the tiny peninsula on its southern coast. Although Anglo-Spanish relations are cordial at present, Socialist Party losses in local and regional elections are certain to rock relations pertaining to the “Rock”. Spain’s move to the right, to be sure, renders Azopardi’s analysis of this European flashpoint all the more timely. I say this since to understand why Spanish police and naval units have violated Gibraltarian territorial waters on some 15 occasions since 2009 has little to do with environmental protection. Likewise, Gibraltar being unable to participate in international sporting bodies has very little to do with UEFA membership rules. It all, rather, has to do you with events dating from 1701.

For all the talk of law and politics, though, it is history which hangs over this particular dispute. As Azopardi recounts, the long-standing tensions between the two major European powers over a territory located on the southern end of the Iberian Peninsula at the entrance of the Mediterranean coast can be traced back to the War of Spanish Succession (1701-1714). It was then, at the start of the eighteenth century and after the English government backed a non-French candidate for the Spanish throne, that Gibraltar first fell into British hands. Although the plan to install Archduke Charles of Austria ultimately failed (with Philip, Duke of Anjou, becoming King of Spain) and British and Dutch troops, in turn, were unable to advance to Madrid, allied forces did succeed in occupying Gibraltar. The 1713 Treaty of Utrecht, which escorted the cessation of hostilities, stipulated that Britain would hold the territory gained.

DETENTION AND DENIAL: THE CASE FOR CANDOR AFTER GUANTÁNAMO

by Benjamin Wittes. Washington : The Brookings Institution, 2011. 160pp. Hardcover $22.95. ISBN: 9780815704911.

Reviewed by Genevieve Lennon, School of Law, University of Dundee. Email: g.obroinlennon [at] dundee.ac.uk.

pp.380-383

The photographs of inmates in their orange jumpsuits in Camp X-Ray in Guantanamo Bay remains one of the enduring images of the ‘War on Terror.’ While President Obama has pledged to close Guantanamo, neither he nor his opponents have articulated a coherent policy detailing the objectives of or the controls over the counter-terrorist detentions of the type occurring in Guantanamo and Bagram. A similar obfuscation is evident in relation to counter-terrorist detentions which occur squarely within the criminal justice system, where suspects have been held under the material witnesses statute or under immigration law, rather than under the criminal law for terrorism offences. In DETENTION AND DENIAL: THE CASE FOR CANDOR AFTER GUANTANAMO, Benjamin Wittes pleads for coherence and honesty in relation to the policy of what he terms ‘preventative detention.’ Drawing on his experience as a senior fellow in Governance Studies at the Brookings Institution and his work with the Hoover Institution Task Force on National Security and Law, Wittes sets out to convince readers of the urgent need for a principled and open approach to preventative detention which is, and Wittes argues will continue to be, a feature of American counter-terrorism policies. He succeeds comprehensively in his task, outlining with clarity and brevity the current state of preventive detention and why a considered position must be taken in relation to its future, rather than continuing the present approach of lurching from legal crisis to legal crisis, blindly hoping that the current problems will fade from memory and not recur. The book is a ‘short, big-picture book’ explicitly aimed at ‘the general interest reader’ that avoids getting bogged down in legal technicalities or jargon, while remaining of interest to specialists who want a brief overview of the subject (pp.vii; ix).

The introduction highlights the moral, political and legal imperatives in developing a coherent policy towards counter-terrorist preventative detention. Chapter 1 outlines current US policy. Wittes argues that Obama’s promise to close Guantanamo is ‘a complicated symbolic gesture . . . replete with conflicting signals’ (p.20). On the one hand it signals a break with the Bush-era triumphalism; an acknowledgment ‘that there is something lawless and disreputable about’ Guantanamo and something shameful more generally about preventative detention. On the other, preventative detention continues out of sight and beyond the domestic courts’ jurisdiction at other facilities, such as Bagram, or suspects are passed to ‘proxies,’ such as the Afghan or Iraqi military or police. Wittes argues that ‘[c]losing Guantanamo . . . is not a repudiation of detention. It is a repudiation of detention at Guantanamo, [*381] a repudiation of detention in the open’ (p.21). He suggests that the ‘shame’ around preventative detention incentivises the military to carry out renditions and targeted killings, a corollary of which is a decrease in intelligence gathering. Wittes argues that, while the status quo is manageable, it rests on a series of fictions: that numbers of detainees will not peak again; that proxies will continue to be able to take the majority of detainees; and that the judiciary will not expand their jurisdiction beyond Guantanamo.

MAKING SENSE OF MASS ATROCITY

by Mark Osiel. New York: Cambridge University Press, 2009. 276pp. Hardback. £53.00/$98.00. ISBN:9780521861854. Paperback. £29.99/$50.00. ISBN: 9781107403185. eBook. $78.00. ISBN: 9780511590269.

Reviewed by Scott Straus, Department of Political Science, University of Wisconsin, Madison. Email: sstraus [at] wisc.edu.

pp.376-379

MAKING SENSE OF MASS ATROCITY, one of several books that Mark Osiel has published recently on atrocity and the law, is terrific. In the book, Osiel squarely brings to bear an empirical understanding of mass atrocity with some of the limits of the law in achieving criminal accountability. Osiel asks tough questions, he is sensitive to the empirical complexities of mass violence (in part due to his embrace of social science scholarship), and he makes persuasive critiques of existing prosecutorial strategies. The book has obvious and immediate relevance to scholars and practitioners who toil in the field of international criminal justice. More generally, any scholar working on transitional justice should read the book. Even for scholars who work on the dynamics of political violence, Osiel’s book makes a compelling and refreshing case for how legal studies should be married to empirical, social scientific scholarship.

A Professor of Law at the University of Iowa, Osiel writes that the two main questions that frame the book are the following. First, how does mass atrocity happen, and, second, how should criminal law respond? (p. vii) The emphasis in the book is clearly on the latter, but one of the most interesting and persuasive arguments in the book is how the former should shape the latter. Throughout the book, Osiel argues that in a number of ways the law’s most common conceptual tools for responding to mass atrocity are a poor fit with the empirics of what happens in mass atrocity. This is a fundamentally important point; in effect, Osiel is arguing for a closer link between empirical studies of political violence, on the one hand, with legal study and the practice of criminal law, on the other. To his credit, he argues against the notion that the law should simplify our understanding of mass atrocity; rather, he argues, it is our complex understanding of mass atrocity that should change how we think about the law.

The book makes a number of arguments for the ways in which criminal law is currently limited when faced with the realities of mass atrocities. In general in criminal law, Osiel argues, the alleged criminal is conceived of as acting independently or at least as part of a world of separate persons. The criminal is further imagined to deviate from a country’s laws. By contrast, in atrocity cases, the empirical dynamics generally involve collective behavior; violence is perpetrated by groups and against groups, and it involves many. Moreover, atrocity is often a function of official endorsement and bureaucratic enforcement, rather than being at odds [*377] with state policy, and people participate in the crimes because of loyalty to the state or to their profession. “The moral world that the law assumes is thus rendered topsy-turvy,” writes Osiel (p.xi).

LAW IN CRISIS: THE ECSTATIC SUBJECT OF NATURAL DISASTER

by Ruth Miller. Stanford, California: Stanford University Press, 2009. 248pp. Cloth. $60.00 ISBN: 9780804762564. E-book. $60.00. ISBN: 9780804772426.

Reviewed by Renee Ann Cramer, Drake University’s Program in Law, Politics, and Society. Email: renee.cramer [at] drake.edu.

pp.370-375

The night before I sat down to draft this review, I read a (pretty bad) mystery/thriller. It was about a woman (Sarah) who works with her dog (Monty) to rescue victims of natural disaster, some of which are being engineered by a mastermind sociopath bent on mass destruction, for very personal and pathological reasons. I read the book in one day – mostly because I wanted to have it done, and not because it was that compelling – and I spent much of my time reading it reflecting variously on the loveliness of my own sweet dog (Clementine), the recent earthquake in Japan, and how much more compelling a different book on a similar topic, LAW IN CRISIS: THE ECSTATIC SUBJECT OF NATURAL DISASTER, by Ruth Miller, is.

In this contribution to Stanford University’s series on “The Cultural Lives of Law,” Miller engages legal and cultural texts from a wide range of settings; her research spans a vast geography and time frame. Though she focuses primary attention on four earthquakes: 1894, Istanbul; 1906 San Francisco; 1923 Tokyo-Yokohama; 1999 Istanbul/Marmara, Miller engages much more in this volume. Most importantly, she draws on, and contributes to, several strands of political theory. Among them are colonial and postcolonial theory, rhetorical analysis, and theories of the everyday. Central, though, are her connections with and contributions to feminist political theory, and legal theory.

Miller's argument is that the normative subject of lawmaking – long thought to be the rational, bounded subject – is in fact the “ecstatic” subject. For those, like me, tempted to read “ecstatic” wrongly, it is helpful to note Miller’s meaning of the term (a return to original meanings); ecstatic subjects are those “shattered, displaced and beside themselves” (p.1). She argues that disaster law “defined broadly here as the legal and political structures that appear in the aftermath of crises such as earthquakes, floods, or fires” has a dual purpose, “first, to make the disaster intelligible by, second, assigning a politically normative function to the subject in ecstasy” (p.1). Returning to what she sees (rightly, in my view) as a missed opportunity growing out of critical theory-building work thirty years ago, Miller understands ecstasy, and the ecstatic subject, as central to law, rather than at it’s periphery (where it is more commonly understood).

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.