SEPARATION OF POWERS IN THEORY AND PRACTICE: AN INTERNATIONAL PERSPECTIVE

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

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

pp.259-264

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

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

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

EU FINANCIAL LAW

by Sideek M. Seyad. Stockholm: Stiftelsen Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet, 2010. 471pp. Paper. kr572/€64.00/$92.00. ISBN: 9789185985005.

Reviewed by Michael Kohajda, Department of Financial Law and Financial Science, Charles University in Prague. Email: kohajda [at] prf.cuni.cz.

pp.256-258

EU FINANCIAL LAW by Sideek M. Seyad of the Stockholm University Faculty of Law deals with several different matters more or less related to financial law and European law. It is divided into fifteen basic chapters, starting with recent case law in the field of free movement of capital as one of the fundamental freedoms of the European Union. Later the book analyzes the regulation of financial market and its institutions, instruments and regulation, payment systems, and tax issues. In the end, the issues of euro currency and the Euroland system (with special stress laid on Swedish Accession to the Euroland) are also analyzed.

The EU financial law is derived from treaties, case law, and EU directives. Seyad discusses several important and interesting judicial decisions of the European Court of Justice in the beginning of the book, including ANDRÉ AMBRY, KLAUS KONLE v. AUSTRIA, TRUMMER AND MAYER, and ÉGLISE DE SCIENTOLOGIE DE PARIS v. PRIME MINISTER. The author works with these judicial decisions and deduces fundamental conclusions about the most important effects of these decisions.

Later Seyad pays close attention to the issues of the insurance market, both life and non life insurance services. He deals with legal requirements established by the E.U. legislation as technical reserves or solvency margins. The author analyses the Lamfalussy Report on the Security Market in detail. He also presents a plan of reform to the E.U. securities market.

In my opinion the chapter analyzing consumer protections in the financial market is very interesting. Seyad pays close attention to the existence of fundamental provisions regulating the consumer protection in the financial market. He comes to the conclusion that there is no clear provision in the original Treaty of Rome that would declare consumer protection as one of its objectives. He follows the development of this legal regulation issue in the Maastrich Treaty on European Union, the Treaty of Amsterdam and the Treaty of Nice. Further Seyad works well with case law, such as the very interesting discussion of the fundamentals of consumer protection, in the famous case CASIS DE DIJON. He also analyzes the more important and more relevant case ALPINE INVESTMENTS BV v. MINISTER OF FINANCIEN. Seyad deals with the E.U. directives that set a minimum level of protection of consumer protection in E.U. countries, especially the minimum level of deposit guarantees and depositors’ compensation or clients’ protection at credit transfers. Unfortunately I have to write that the factual information discussed is not up to [*257] date. An example is the amount of minimum level for protected deposits.

Seyad elaborates common European taxation issues as well. He starts with a discussion of information on direct taxation harmonization that is, politically, highly complicated to achieve. He focuses especially on taxation of cross-border saving incomes. Again I must mention that some information is out of date – for example the information that the Nice Treaty is awaiting ratification (p. 172). In my opinion this chapter's discussion of indirect taxation should be amended because it is largely more harmonized in the E.U. than direct taxes.

JOHN CHIPMAN GRAY: THE HARVARD BRAHMIN OF PROPERTY LAW

by Gerald Paul Moran. Durham: Carolina Academic Press, 2010. 334pp. Hardback. $45.00. ISBN: 9781594603983.

Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.

pp.253-255

In JOHN CHIPMAN GRAY: THE HARVARD BRAHMIN OF PROPERTY LAW, Gerald Moran seeks to accomplish two related goals. First, although Moran notes that his book should not be described as a “definitive biography” of Gray (p.8), the work nevertheless chronicles the life of an important figure in American legal history. Second, and related, Moran attempts to demonstrate that Gray’s most notable contribution to the field of property law – his synthesis of the abstruse Rule Against Perpetuities (RAP) – is, in effect, a personification of his own character. In Moran’s words, “the focus of this study is on the symbiotic relationship of a man and his rule of law. They are inseparable” (p.17). The succeeding pages of Moran’s narrative set out to illustrate that proposition.

In advancing this thesis, Moran speaks to Gray’s position in Boston’s intellectual community, references aspects of his childhood, describes his relationship to his older half-brother (and, ultimately, U.S. Supreme Court Justice) Horace Gray, Jr., and touches on his experiences in war, the practice of law, and the academy. Although the book strays from its thesis at times and, much more noticeably, is the product of exceedingly amateurish editing, Moran’s fundamental point – that Gray’s conceptualization of the RAP is a direct reflection of his character – survives intact.

In both the preface and Chapter One, Moran establishes the contours of the book by providing an executive summary of both Gray’s experiences and the RAP. In those portions of the book, Moran sketches the RAP’s historical progression from the DUKE OF NORFOLK’S CASE (1682) through Gray’s scholarship (see Gray 1886), and up to the present day. In doing so, Moran suggests that the RAP is no longer a particularly useful component of modern property law: “the rule itself [has been] recognized by some as an anachronism of excessive complexity and transformed somewhat into an arbitrary rule of a time past” (p.6). Given the modern prevalence of trusts, that is undoubtedly true. However, when Moran further asserts that “[the] underlying purpose of this essay is to challenge the traditional academic support for the relatively unexplored automatic application of the RAP to modern trusts,” he goes a bit too far afield (p.18).

In the book’s introductory pages, Moran references the fact that the RAP, for Gray, “[had] a certain and inexorable correct answer for each problem” (p.10), and this theme is developed at considerably greater length in the chapters that follow. Chapter Two, titled [*254] “Gray’s Cultural Experience and the Formulation of the RAP,” begins to situate Gray within both his own family and Boston’s Brahmin community. Arguably the most significant episode in John Chipman Gray’s early years surrounded his father’s bankruptcy. That experience, according to Moran, cultivated in Gray both a sense of responsibility and an uncompromising view of the law. In effect, “[t]he severity of Gray’s moralistic approach to the law imitates the strict accountability that his father faced and accepted” (p.40).

BEYOND CONSTITUTIONALISM: THE PLURALIST STRUCTURE OF POSTNATIONAL LAW

by Nico Krisch. Oxford, UK: Oxford University Press, 2010. 384pp. Cloth £50.00/$100.00. ISBN: 9780199228317.

Reviewed by Ming-Sung Kuo, University of Warwick School of Law. Email: M-S.Kuo [at] warwick.ac.uk.

pp.247-252

Since the collapse of the Berlin wall, the world order has been undergoing a long, great transformation. So has the legal world. Echoing the stories of globalization as to how issues have become transboundary, the “great divide” between international law and national law is seen as having been transcended. Yet, the legal landscape after this great transcendence is not as clear as the flat world perceived to be looming from economic globalization. It takes prescient observation, intellectual erudition, and creative imagination to map out the brave new world of law. Bringing his multinational academic background, Nico Krisch, currently based in Hertie School of Governance in Berlin, Germany, joins the myriad scholarly attempts to draw the new legal map as displayed in his prescient, erudite, and imaginative BEYOND CONSTITUTIONALISM: THE PLURALIST STRUCTURE OF POSTNATIONAL LAW. Engaging with the current debate between pluralists and constitutionalists as to the future of the legal order, Krisch in this book not only presents a systematic defense of the pluralist view but also provides an incisive diagnosis of the state of our globalizing world. Pace the world flattened to facilitate economic flows, Krisch portrays the legal landscape in postnational terms, envisioning a legal world overlayered with distinct jurisdictional regimes.

Departing from the post-Westphalian world order as characterized in academic literature and popular media following the end of the Cold War, Krisch subscribes to the postnational view of the configuration of the world legal order. On this view, the distinction between international law and national law can no longer hold up as more and more transboundary issues arise and require transnational collaboration. On the one hand, boundaries delineating jurisdictions between sovereign states have been overwhelmed by waves of transboundary issues. On the other hand, traditional international law tools have failed to live up to the challenges from transnational regulation. Neither traditional dualism nor strong monism that conceives national legal systems and international law in an integrated legal order provides the urgently needed answer. Rather, notes Krisch, we are faced with a “postnational law,” “a frame comprised of different orders and their norms…overcome[ing] the categorical separation between the spheres, without however merging them fully or necessarily defining the degree of authority their different norms possess” (p.12). If the postnational view provides a lens through which the post-Westphalian world order can be rightly characterized, the state of postnational law remains yet to be spelled out systematically. This is where Krisch [*248] intervenes with his strong pluralist position.

LINCOLN ON TRIAL: SOUTHERN CIVILIANS AND THE LAW OF WAR

by Burrus M. Carnahan. Lexington, Kentucky: The University Press of Kentucky, 2010. 165pp. Cloth. $30.00. ISBN: 9780813125695. eBook. $30.00. ISBN: 9780813173665.

Reviewed by Christopher N. Fritsch, Department of Social Sciences, Weatherford College. Stxoxfd [at] earthlink.net.

pp.243-246

Twice a year this reviewer has the opportunity to lecture upon the difficulties of the American Civil War. The lecture is based upon the dichotomy of Lincoln’s firm belief that Southern states could not and did not leave the union and the necessity of fighting a war against a uniformed and armed enemy. Lincoln’s beliefs may not appear problematic, but they were. At times, Lincoln believed himself bound by the Constitution and at other moments, felt compelled to ‘unleash the hounds of war.’

Burrus Carnahan offers us an interesting investigation, which at its heart is a study of Lincoln, the vacillating warrior. If Lincoln’s only mental and legal paradox was the impact of a naval blockade in relation to the international law of war, Lincoln’s war would have been easier to comprehend. On the one hand, Lincoln held to the Constitution in determining the government’s, and thus the military’s, relationship to citizens and their property in what was the Confederate States of America. However, Lincoln quickly understood that the conflict was a war that forced him to make difficult and, at times, unwanted decisions for all concerned.

Within weeks and months of the firing upon Fort Sumter and the first major engagement near Manassas, Virginia, Lincoln faced a number of international law/rules of war questions. At the conclusion of the First Battle of Bull Run, what was to be done with captured soldiers? Under international law, men fighting in uniform and under orders within a military unit were soldiers. They were recognized arms of a military structure that was part of a governmental system. In admitting this, however, Lincoln recognized the Confederate States of America as a belligerent under the rules of war. Thus, the creation of a program to exchange captured soldiers as prisoners of war maintained the interpretation that the United Sates and the Confederate States were sovereign nations at war with each other. Drawing this conclusion forced Lincoln and Jefferson Davis to new questions and conclusions in relation to the actions of non-uniformed citizens, retaliatory acts, and the bombing of cities. In many of these situations, Lincoln recognized the Confederacy as something beyond states in the throes of rebellion.

Lincoln, like politicians in any age, liked to pick and choose which occasions reflected the Constitution and which reflected the rules of war. It is precisely here that Carnahan shows us a Lincoln struggling between these two polar opposites. As much as Lincoln rejected the idea of recognition for the Confederacy, prisoner of war exchanges created this very idea. Rebels or traitors do not get exchanged; they were not [*244] legitimate combatants. On the other hand, privateers and their actions amounted to something very different. In theory, these sailors were not in uniform, as they attacked either American shipping interests or American naval forces. Within these situations, Lincoln decided that privateers did not fall under the category of legitimate combatants. American naval forces that captured Southern privateers held the right to bring the ship and cargo to a northern point, where they were considered prizes and the sailors considered pirates.

PERMIT BUT DISCOURAGE: REGULATING EXCESSIVE CONSUMPTION

by W.A. Bogart. New York: Oxford University Press, 2011. 396pp. Cloth. $75.00/£45.00. ISBN: 9780195379877.

Reviewed by Richard L. Pacelle, Jr. Department of Political Science, Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu.

pp.239-242

If there is a second edition of the book, PERMIT BUT DISCOURAGE, plenty of new examples can be readily found in the news and throughout the popular culture. A number of the recent restrictions seem to come from New York City bearing the clear fingerprints of Mayor Michael Bloomberg. Recently, the city has imposed limits on smoking, even outdoors. Then, there were the famous restrictions on soup served in restaurants because of elevated levels of sodium. These represent further examples of governmental attempts to regulate various private activities that are not illegal. In this interesting and provocative book, W.A. Bogart examines attempts to regulate the use of potentially dangerous products like cigarettes or limit the excessive consumption of unhealthy food or activities like compulsive gambling. The title of the book tells the essence of the basic story, the balance between permitting forms of potentially harmful activity, but trying to limit the scope of that behavior. One of the key themes of the book is the impact of the law and formal legal interventions on such over consumption.

W.A. Bogart is Professor of Law at the University of Windsor and the author of CONSEQUENCES: THE IMPACT OF LAW AND ITS COMPLEXITY (2002), a book which has a similar focus on the potential and limits of law in dealing with complex social and legal issues. Permit but Discourage concentrates on a number of issues in which consumption of some product or participation in some activity is permitted even as external agents seek means of minimizing the negative effects of excessive consumption. Bogart looks at a range of activities from those widely considered illegal like the use of recreational drugs to legal but clearly harmful activities like smoking to drinking and gambling that can become problematic. Bogart also investigates obesity, which is not illegal but can be problematic for a variety of health reasons.

Bogart devotes a section to each of the issues. In the chapters within each section, he traces the evolution of norms and various attempts to regulate the behaviors. The historical analysis often traces the roots of social mores and legal interventions back to England, but the present day discussions concentrate on the United States and Canada. Bogart provides ample examples of the change in norms and mores regarding each of the activities. For instance, smoking was considered glamorous for decades. Popular culture also glorified drinking and “one for the road.” Gambling, on the other hand, was considered a vice and was illegal in most jurisdictions. Through education, evolving public opinion, and reframing our notions of such activities, the norms of society can [*240] change. For instance, the author argues that smoking has been redefined from an acceptable social practice to a disgusting, addictive habit. Similarly, drunk driving and binge drinking have transformed attitudes about alcohol. In general, the author concludes that regulation that discourages excessive consumption has increasing public support.

TIERRA y LIBERTAD: LAND, LIBERTY, AND LATINO HOUSING

by Steven W. Bender. New York: New York University Press, 2010. 256pp. Cloth $39.00. ISBN: 9780814791257.

Reviewed by Louis DeSipio, Departments of Political Science and Chicano/Latino Studies, The University of California, Irvine. Ldesipio [at] uci.edu.

pp.235-238

Using the collapse of the subprime mortgage industry as a point of departure, Steven Bender analyzes the troubled relationship between Latinos and landownership, particularly homeownership, in the United States. Latinos, like many other poor populations and populations new to homeownership, were more likely to receive subprime mortgages and to lose their homes to foreclosure in the years since the collapse of U.S. housing prices and the recession that followed. As Bender demonstrates, however, Latinos have long been subject to loss of their land and homes. Bender traces this history to the beginning of the large-scale Latino presence in the United States, the period just after the U.S.-Mexican War in the mid-19th Century and to ongoing state efforts to restrict Latino (and immigrant) housing opportunities such as restrictive covenants, zoning laws, and efforts to restrict rentals to unauthorized immigrants.

TIERRA y LIBERTAD’s core assertion that Latinos were disproportionately disadvantaged by the subprime mortgage industry broadly fits with popular understandings of the victims of subprime housing lending. Bender is careful to observe that Latino disadvantage was multipronged in this era. Lower levels of English-language proficiency, weaker connections to the financial service industry, and lower incomes tracked a higher share of Latinos than non-Latinos into subprime mortgages as the industry grew in the late 1990s and early 2000s. Low incomes also ensured that Latinos who had entered the housing market in earlier periods refinanced at higher rates than non-Latinos as their homes appreciated. Refinancing could move a Latino borrower from a prime mortgage and home equity to a subprime mortgage and negative equity in the home. Bender notes that subprime lenders targeted Latinos and in some cases moved Latinos into subprime loans when they qualified for non-subprime lending. Latino immigrant status and larger than average household sizes opened them to predatory lending practices that included the falsification of income of family members, the creation of additional household members for the purposes of calculating household income and, most importantly, the failure to translate mortgage documents into Spanish or to explain the nature of loans with rapidly increasing interest rates. Unauthorized immigrants were particularly likely to be the victims of mortgage brokers who were able to make a quick profit on a loan that the borrower was unable to afford.

While this portrait of subprime lending fits popular understandings, it carelessly homogenizes the Latino experience into [*236] a single, and likely inaccurate, story. TIERRA y LIBERTAD would have been immeasurably enriched by a more detailed analysis of who in the Latino community was particularly victimized by subprime lending and how these patterns compared to patterns in other racial/ethnic communities. Bender’s discussion implies that immigrants with their limited English abilities would be most likely to be the targets of predatory lending, but this is implied rather than shown. Bender also focuses on Latino farm workers as having a history of exploitation in the housing sector, so this might reasonably be another Latino population in the scope of subprime lenders. Agricultural laborers, however, make up a small share of today’s Latino community. In the end, we really do not know from the discussion in TIERRA y LIBERTAD. We also do not get a sense of the magnitude of financial losses by Latino homeowners (again, in comparison to other racial and ethnic populations) or the relative rates of foreclosure. Clearly, the final data have not been collected on these questions, but Bender would have better made his argument about the subprime mortgage industry as just the latest chapter of Latino dispossession from the land if he had offered more analytical detail and comparative analysis.

HYBRID CONSTITUTIONS: MAKING AND UNMAKING POWER AND PRIVILEGE IN COLONIAL AMERICA

by Vicki Hsueh. Chapel Hill, NC: Duke University Press, 2010. 208pp. Cloth: $74.95. ISBN: 9780822346180. Paperback: $21.95. ISBN: 9780822346326.

Reviewed by Christopher Brooks, Department of History, East Stroudsburg University, East Stroudsburg, PA. Email: Christopher.Brooks [at] po-box.esu.edu.

pp.231-234

Jean Bodin defined an aristocratic state “as one in which the minority of citizens command the rest considered collectively, and each and all severally” (p. 71). And, like students of the seventeenth- and eighteenth-century British American colonies can observe, every colony considered itself “sovereign, without subjection to the laws and commands of the others.” They had “no obligation to one another other than those specified under the terms of their defensive and offensive alliances” (p. 71). This was the case for sixteenth-century Germany according to Bodin, but was not intended for the British Crown and its rapport with the American colonies. However, the salutary neglect of the Crown, and, for a time, British Parliament, led the American colonists through their constitutions to assume another significant point made by Bodin relevant to both the German Confederation and the British American colonies: “Each member of the Empire then constitutes itself a particular sovereign state” (p. 72). In that respect, Vicki Hsueh has done a wonderful job of demonstrating how this thinking on the part of British subjects, that the colonies enjoyed sovereignty while still being a part of an empire, is manifested in the hybridity of the constitutional design of its North American colonies.

Vicki Hseuh is most “interested in the specific forms of law and political power developed by proprietors, governors and settlers in the early modern period,” and is “particularly drawn to the elements of hybridity that emerged in the colonies” (p. 4). Her definition of hybridity does not stem from political or legal texts, but instead from the socio-cultural state of affairs. The author’s point of departure is Homi Bhabaha’s “Cultural Diversity and Cultural Differences,” to which she admits she owes an intellectual debt. In short, Hseuh has taken Bhabaha’s attempt to transcend Lyotardian binary opposites and set a path for a third way – one of hybridity, one allowing for the colonized and the colonizer to break bread and create something new. In Hseuh’s case, that something new is nothing new at all, as it took place approximately three centuries ago, and teasing that out from various colonial documents is the most interesting stream of Hseuh’s book.

A cynic might claim that hybridity is a manifestation of cherry picking: proprietors doing what served them best, especially those who actually resided in the New World. However, Hseuh sets out to demonstrate why that was not the case.

FREEDOM OF RELIGION: LOCKE v. DAVEY AND STATE BLAINE AMENDMENTS

by Douglas F. Johnson. El Paso: LFB Scholarly Publishing, 2010. 220pp. Hardcover. $65.00. ISBN: 9781593324322.

Reviewed by Thomas M.J. Bateman, Department of the Political Science, St Thomas University. bateman [at] stu.ca.

pp.226-230

Douglas Johnson’s book is at root an argument for comprehensive educational disestablishment. He laments the emergence of a Supreme Court jurisprudence allowing courts to uphold programs that involve the distribution of public moneys to institutions and persons with religious mandates and purposes. He is interested in advancing secular education and in rebuilding the strict wall of separation between church and state.

His particular interest is to defend the US Supreme Court’s 2004 decision in LOCKE v. DAVEY (2004). In 1999, the Washington State government established the Promise Scholarship Program, providing funds to academically gifted students to pursue post secondary educational programs at all nationally accredited state institutions – including those with religious mandates – in a professional, academic, or vocational area of their choice, except studies in “theology.” The parties in this case agreed that the term means “devotional” theology, suitable for pastoral ministry. Joshua Davey won the scholarship and planned to attend a Christian academy to study business administration and theology. Because of his choice to study theology, he was judged ineligible for the scholarship.

Washington’s constitutional protection of freedom of religion reads, in part: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” Is the denial of the scholarship to Davey contrary to the First Amendment? Davey lost at trial but won on appeal.

To the surprise of many, a 7-2 majority of the Supreme Court granted Washington’s appeal and upheld the terms of the constitution and thus of the scholarship program. For the majority, Chief Justice Rehnquist held that the program’s interference with Davey’s free exercise was marginal. “The state has merely chosen not to fund a distinct category of instruction.” The state, he concluded, is not hostile to religion; it merely is acting in accordance with a long American tradition separating public funding from the practice of religious vocations. Further, the program was tailored to accommodate religion. Funding was tenable at accredited religious schools, and students holding scholarships could take theology courses, though they could not major in the subject. Rehnquist found in the program no animus against religion.

THE FUNDAMENTAL HOLMES: A FREE SPEECH CHRONICLE AND READER

by Ronald K.L. Collins. Cambridge: Cambridge University Press, 2010. 448pp. Hardback. $95.00/£60.00. ISBN: 9780521194600. Paper. $29.99/£19.99. ISBN: 9780521143899.

Reviewed by Paul I. Weizer, Department of Economics, History, and Political Science, Fitchburg State University. Email: pweizer [at] fitchburgstate.edu.

pp.222-225

This book, by Ronald K.L. Collins, the Harold S. Shefelman Scholar at the University of Washington School of Law, presents a comprehensive and often compelling look at the life of Oliver Wendell Holmes. While Holmes is universally regarded as a giant in the field of American law and often thought of as one of the greatest Justices ever to serve on the Supreme Court, it is within the First Amendment realm where his legacy is most often attributed. Ironically, much of this attention is focused on his 1919 landmark opinion in SCHENCK v. UNITED STATES, which created the clear and present danger standard, as well as his passionate dissent in ABRAMS v. UNITED STATES that same year. Each of these opinions came both late in his life (he was 78 at the time) and late in his tenure on the Court (where he was in his 17th term).

It has been said that a man is the sum of his experiences. The main aim of this book is to explore the life of Holmes and the events which led to his free speech jurisprudence. This is done through a careful examination of the personal correspondence, public speeches and judicial opinions of Holmes. This book is billed as the first complete collection of works by Justice Holmes on matters related to free speech. However, it is more than just that. By providing letters and speeches, in addition to the traditional judicial opinions found elsewhere, Collins helps to provide a sense of the man and a view of the Justice.

The book is presented in six parts (plus a prologue and epilogue), each of which begins with an original essay designed to place the chosen excerpts in proper context.

Part one looks at Holmes’ Civil War experiences and the impact those encounters had on his worldview. While Holmes was born into the very wealthy Boston brahmin society and had access to all of the advantages that accompany such an upbringing. Yet he chose to fight in the war. His commitment to the abolitionist cause led him directly to the battlefield where he saw firsthand the dangers and horror of war. Despite being injured in battle (repeatedly no less), he continued to fight. He eventually left the service a changed man, one less idealistic and more cynical. The letters and speeches provided in this chapter are most illuminating and are among the most interesting in the book. The deep personal convictions, the spirit of liberty, and the re-examination of truth as an evolving concept, which are later famously articulated in his landmark court opinions, come through clearly in [*223] these life defining moments. Seeing how his life changed and his world view evolved from the ground level was fascinating. Additionally, after each selection, Collins provides extensive commentary to provide context and maintain the flow of the book.

IMMIGRANTS AND THE RIGHT TO STAY

by Joseph H. Carens. Cambridge, MA: The MIT Press, 2010. 128pp. $14.95/£11.95 (CLOTH) Trade. ISBN: 9780262014830.

Reviewed by Rebecca Hamlin, Department of Political Science, Grinnell College. Email: hamlinr [at] grinnell.edu.

pp.219-221

Modern liberal states are faced with a dilemma that Hollifield calls “the liberal paradox” (2004, 885). The economic logic of liberalism calls for free movement of goods, ideas, and people, but these liberal values of openness are in tension with the concept of bounded states and the sovereign right of border control. The task of figuring out how to resolve the tension of the liberal paradox is what makes immigration politics controversial. Modern states have struck the balance between openness and control in a variety of different ways, but the question remains a legal, political, and moral conundrum for western democracies because there are no easy solutions.

Political theorist Joseph Carens is known for his advocacy of resolving the liberal paradox by embracing open borders (1987). This is an ideal he still favors. However, in IMMIGRANTS AND THE RIGHT TO STAY Carens proposes a different scenario, one that is more cognizant of the political forces that shape the liberal paradox. In the interest of finding “common ground” with those who reject the idea of open borders, he assumes that states maintain a sovereign right of border control, and then asks what these states should do about unauthorized immigration (p.36). He argues that because undocumented immigrants spend significant amounts of time in receiving states, they put down roots, form ties, and become members of communities. Thus, he suggests that long-term undocumented immigrants gain rights over time, one of which is the right to participate in community governance. His proposal is for states to allow undocumented immigrants to adjust their status after about five years of residence. These immigrants should be granted amnesty because “there is something deeply wrong in forcing people to leave a place where they have lived for a long time” (p.12).

Carens’ argument about migrant rights is not just reliant on time, however. He also argues that undocumented immigrants should have access to some rights from the moment they arrive, including the right to join unions, safe working conditions, and minimum wage protections as well as the right to call upon police and other emergency services. Carens suggests a “firewall” between these protections and immigration law enforcement so that those who are vulnerable to deportation will not be reluctant to claim their other rights (pp.33-4). Carens does not go into detail about how this firewall would work and what immigration law enforcement would look like under this scenario, but presumably it would be predominantly focused at the physical border, and not in worksites or communities. [*220]

THE HART-FULLER DEBATE IN THE TWENTY-FIRST CENTURY

by Peter Cane (ed.). Oxford and Portland, Oregon: Hart Publishing, 2010. 360pp. Cloth £50.00/$75.00. ISBN: 9781841138947.

Reviewed by Keith J. Bybee, College of Law and Maxwell School, Syracuse University. Email: kjbybee [at] maxwell.syr.edu.

pp.214-218

In 1958, the Harvard Law Review published articles by H.L.A. Hart and Lon Fuller debating positivism, morality, and the nature of law (Hart 1958 and Fuller 1958). THE HART-FULLER DEBATE IN THE TWENTY-FIRST CENTURY, edited by Peter Cane, features essays and commentary written on the occasion of the two articles’ fiftieth anniversary.

In his preface, Peter Cane writes that the aim of the volume is “not to rerun the famous debate” nor is “the intention to confine discussion to the issues canvassed by Hart and Fuller” (p.v). Instead, the plan is “to look forward rather than backward, using the debate as a point of departure and inspiration” (p.v). This is an interesting approach to a classic debate. Unfortunately, it is not an approach that Cane attempts to flesh out or justify in any detail.

Cane notes that participants in the colloquium that gave rise to the volume’s essays were skeptical about using the debate as a “springboard” for analysis (p.v). Some colloquium participants wondered if the debate held anything more than historical interest and others questioned the value of discussing issues that neither Hart nor Fuller may have had in mind in 1958. Rather than defending his approach against such criticism, Cane writes that the colloquium ultimately “was counted as a great success by those who attended” and that the essays included in the volume are of “the very highest quality” (p.vi). I agree that the essays in the volume have a good deal to offer. Yet claims about the quality of individual contributions do not make a case for the essays as a collection. Cane would have given the volume a better start if he had significantly expanded his one-and-a-half page preface, elaborating the rationale and framework of the volume at much greater length. A more substantial introduction not only would provide the collection with a firmer foundation, but also would help guide readers across the broad terrain covered by the volume’s contributors.

The text is divided into sixteen chapters. Nine of the chapters are of significant length, and seven of these nine chapters are followed by shorter commentaries that critically engage the arguments of the longer chapters. The pairing of longer essays and targeted commentary is a great strength: it is a structure that creates a series of dynamic conversations within the volume. Although the volume’s organizing rationale and overall framework remain under-developed, the dialogue between chapters and commentaries helps pull readers into specific discussions, and will help stimulate the thinking of scholars and graduate students alike. [*215]

THE LEGAL RIGHTS OF THE CONVICTED

by Barbara Belbot and Craig Hemmens. El Paso: LFB Scholarly Publishing LLC, 2010. 262pp. Paper $42.95. ISBN: 9781593324247.

Reviewed by Raymond G. Kessler, Department of Criminal Justice, Sul Ross State University. E-mail: rkessler [at] sulross.edu.

pp.212-213

This 6” x 9” paperback has big aspirations for such a small tome. Fortunately, it mostly delivers. The goal of the authors, Barbara Belbot and Craig Hemmens, was to create a small and readable, but still relatively comprehensive, book about the constitutional rights of the convicted in the United States. The text covers not only prison convicts, but also those in jails, community corrections programs and probation and parole. Although suited for a variety of audiences, the primary market is probably undergraduate texts for criminal justice programs. They write that “students who are or are aspiring to become criminal justice professionals” must “understand the extent to which correctional supervision is governed by the law . . .” (p. 3). Both authors teach criminal justice at the university level.

The opening chapter provides a concise but excellent review of the history of the prisoners’ civil rights movement. It also covers the basic legal concepts, such as stare decisis, necessary to understand the law.

There are two chapters on First Amendment rights followed by single chapters on the Fourth Amendment, use of force, due process rights, and cruel and unusual punishment. The final three chapters cover litigation and reform, probation and parole, and civil liability of correctional personnel. The chapter on liability does an excellent job of concisely covering qualified immunity and related topics.

As might be expected, most of the material involves U.S. Supreme Court decisions and federal statutes. There are occasional separate text boxes in most chapters summarizing the important points, providing further discussion, or providing examples. More of these are needed as a foil to the text which sometimes seems to proceed at break-neck speed. There are also occasional references to and discussions of, some of the research on related issues. At the end of each chapter are “Discussion Questions” and “Suggested Readings and References.”

TORTURE, TERROR, AND TRADE-OFFS: PHILOSOPHY FOR THE WHITE HOUSE

by Jeremy Waldron. New York: Oxford University Press, 2010. 368pp. Hardback. $37.50/£19.99. ISBN: 9780199585045.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.

pp.208-211

Jeremy Waldron, a professor of Law at New York University who also holds a position at Oxford, continues his record of scholarship in the area of legal and political philosophy. Having published or presented research on the topics of torture and terrorism for most of the last decade, he combined it with original material in the present volume. He relies on a diversity of sources, including the writings of political philosophers, the text of international covenants and agreements, Supreme Court rulings, and pertinent secondary references.

Though the book is comprised of ten chapters, there is no overt division of parts. Still, five broad areas are discernible and will be covered here, starting with the Introduction. It is there that the author delineates the theme of the work: though the heinous attacks of September 11, 2001 changed our conception of what terrorists are capable of, laws and agreements pertaining to the use of torture did not change. For Waldron, torture “was and remains a moral as well as a legal abomination” (p.4). In order to justify those practices, U.S. officials sought to ignore or downgrade international law. However, America’s reputation abroad suffered as a result. Further, nations such as Italy have charged U.S. intelligence personnel with crimes associated with the use of certain interrogation methods.

Chapters 2, 3 and 4 offer critiques of responses to terrorism. In Chapter 2, Waldron examines the proposition that increasing threats against citizens mean that they must forfeit some liberties to achieve adequate security. Waldron worries that the tools delegated to governments to combat a perceived external enemy will be retargeted against the government’s opponents anywhere. He asserts that we “should not give up our liberties, or anyone else’s liberties, for the sake of purely symbolic gains in the war against terrorism” (p.47). Chapter 3 defines and differentiates concepts related to terrorism and discusses divergent intentions behind terrorist acts. Chapter 4 uses a 2004 paper by Jeff McMahan to make a point about the importance of international law and conventions. Whereas McMahan argues that there is no moral justification for a blanket prohibition against attacking civilians during war, Waldron retorts that “[a]bsent the laws and customs of armed conflict, all killing in war would be murder” (p.106).

CITIZENSHIP AND ITS EXCLUSIONS: A CLASSICAL, CONSTITUTIONAL, AND CRITICAL RACE CRITIQUE

by Ediberto Román. New York: New York University Press, 2010 (Critical America Series). 224pp. Cloth $45.00. ISBN: 9780814776070.

Reviewed by Julie Novkov, Department of Political Science and Women’s Studies, University at Albany, SUNY. Email: jnovkov [at] albany.edu.

pp.204-207

Ediberto Román’s CITIZENSHIP AND ITS EXCLUSIONS: A CLASSICAL, CONSTITUTIONAL, AND CRITICAL RACE CRITIQUE primarily analyzes exclusionary and partial practices of state recognition of citizenship in the United States. Román identifies several ways that citizenship as a concept, despite its universalist aspirations, fails to embrace all those subject to the laws of the United States in equal ways. Relying on T.H. Marshall’s tripartite classification of citizenship (political, civil, and social), Román shows in historical and contemporary terms that members of some groups (women, African Americans, and Latinos, for instance), do not achieve full access to the rights of citizenship in Marshall’s terms. However, he also notes that millions of individuals living under the sovereign authority of the United States possess rights of citizenship only at the whim of Congress because they live in territories rather than states. His goal is to show that, while “Western societies have uniformly accepted the aspects of citizenship discourse that have championed equality . . . these same societies have repeatedly denied disfavored groups full social, civil, and political citizenship rights” (p.12).

Román does not critique this situation on the basis of its mismatch with an ideal of equal citizenship. Rather, he suggests that this is a natural consequence of how citizenship has worked historically and theoretically. To understand citizenship, he argues, we must not look only to contemporary practices, but to the deeper roots of the concept both in practice and in theory. He thus provides a swift historical overview, beginning with Greek and Roman citizenship and tracing it through its medieval European evolution and into the Enlightenment. Through his historical work, he shows how citizenship began as a gradated and exclusionary status. The idea of full citizenship as simultaneously securing complete civic membership for its possessors and as investing in them the privilege and responsibility of governance dates back to Aristotle, but as Román reminds the reader, Aristotle’s conception of citizenship was complex and incorporated limits. Román summarizes the development of citizenship through the medieval period, as lingering Roman practices influenced feudalism and its decline through the emergence of cities with citizens. He describes how late medieval thinkers like Aquinas, Marsilius of Padua, and Bartolus drew from Aristotle and the Roman precedents to revivify citizenship as an aspiration but also as a crucial political building block for the state. These thinkers, he emphasizes, retained the exclusionary aspects of the concept. [*205]

UNDERSTANDING TORTURE: LAW, VIOLENCE AND POLITICAL IDENTITY

by John T. Parry. Ann Arbor: University of Michigan Press, 2010. 328pp. Paper $27.95. ISBN: 9780472050772. Ebook Formats. $27.95. ISBN: 9780472021789.

Reviewed by Jinee Lokaneeta, Assistant Professor in Political Science, Drew University. Email: Jlokanee [at] drew.edu.

pp.198-203

UNDERSTANDING TORTURE: LAW, VIOLENCE, AND POLITICAL IDENTITY by John T. Parry is an extremely powerful intervention in the field of Torture studies (an emerging field given the enormous amount of literature being written on the subject in recent years) as well as the debates on theories of rights and the nature of the modern state. While there have been a number of seminal works emerging on the subject such as Darius Rejali’s TORTURE AND DEMOCRACY; Alfred McCoy’s A QUESTION OF TORTURE, and Paul Kahn’s SACRED VIOLENCE: TORTURE, TERROR, SOVEREIGNTY, the strength of Parry’s work lies in an ability to effortlessly move from law, to liberal theory, to post colonial studies in diverse contexts to help understand torture.

The central argument of Parry’s book is that torture is not aberrational; rather it is already a part and parcel of the modern liberal state. As Parry puts it, “. . .torture – understood colloquially and broadly instead of as a strictly defined term of art – is already part of the modern state’s coercive apparatus” (p.12). This statement brings us immediately to the relationship between law and violence, and specifically law and torture. While acknowledging that law is actually meant to “channel and regulate” the violence (p.12), Parry ultimately argues that law in its various forms “will likely fail” to regulate state violence (p.13). Turning to rights theory that is closely related to the protections against torture, he argues, in fact, that rights are constitutive of the modern state’s ability to construct the individual and subjects, and therefore cannot be understood as adequate constraints on the state’s powers. Finally, Parry notes that identities of individuals play an important role in the way they experience both torture and the protections against torture.

Parry’s detailed discussion of each of the sites he chooses is extremely rich and powerful and he pulls together this ambitious project in an admirable way. He divides the book in three parts. The first part of the book is on the laws against torture, the second is a transition chapter explaining his theoretical project, and the third part focuses on developing the past and the present history of torture in democracies including U.S. as a way to “understanding torture in the war on terror.”

THE SUPREME COURT UNDER MORRISON R. WAITE, 1874-1888

by Paul Kens. Columbia, SC: University of South Carolina Press, 2010. 272 pp. Cloth. $49.95. ISBN: 9781570039188.

Reviewed by Ken I. Kersch, Director, Clough Center for the Study of Constitutional Democracy, Associate Professor of Political Science, History, and Law, Boston College. Email: kersch[at]bc.edu.

pp.191-197

Given the relative obscurity of the man serving as this book’s organizing subject, and the ostensible dullness (and brevity) of the period it covers (the presidencies of Ulysses S. Grant, Rutherford B. Hayes, James A. Garfield, Chester A. Arthur, and Grover Cleveland), many will doubtless – and mistakenly – pass over this entry in the University of South Carolina Press’s series surveying the Supreme Court’s chief justiceships. While period experts probably won’t learn a lot, the value-added to others from reading this book could be quite high. Moreover, in reviewing the trajectory of constitutional development in the period, even experts might be spurred by Kens’s account to appreciate in new ways the Waite Court’s perhaps surprising contemporary relevance.

Waite Court (1874-1888) themes included the relation between the national government and the states, the constitutional powers of governments to regulate the economy, and the powers of the community vis-à-vis big business. Significantly, the Court considered these issues not under the conditions of a now vanished “proprietary-competitive,” agrarian order, but at the very moment when our complex, interconnected, corporate-capitalist political economy was struggling to be born (see Sklar 1986). As such, the Waite Court was the first to grapple seriously with the application of the traditional system of government – and the Founders' Constitution – to the political economy of modern America.

Kens is ambivalent about applying the label “transitional” to the Waite Court – though he recognizes its purchase given the Court’s responsibility for wrestling with the legacy of Civil War, the revolution in commerce, and the winning of the west. “Transitional” might imply ambivalence. But Kens’s thesis is that Waite (and the Court’s other justices) had clear views on the constitutional questions of the day, which were squarely joined on the Court. He shows that Waite’s views largely prevailed, albeit, as time went on, by increasingly precarious margins.

COUNSEL FOR THE SITUATION: SHAPING THE LAW TO REALIZE AMERICA’S PROMISE

by William T. Coleman with Donald T. Bliss. Washington: Brookings Institution Press, 2020. 466pp. Cloth. $34.95. ISBN: 9789815704881.

Reviewed by John R. Vile, University Honors College, Middle Tennessee State University, jvile [at] mtsu.edu.

pp.187-190

William Coleman is best known for serving as President Gerald Ford’s Secretary of Transportation. However, he has earned so many honors, served in so many capacities, and has met and worked with so many important people that his account, co-authored by an associate Donald T. Bliss, sometimes has a Forest Gump quality to it, albeit by a man who was not only present at key moments but who also helped to shape them. The first paragraph of the first chapter begins with his description of a call that Coleman received from Donald Rumsfeld, and the last chapter ends by mentioning that Coleman once represented Frank Sinatra. The first person that Coleman records meeting at Harvard Law School was Elliott Richardson, and when Coleman’s son attended Yale Law School, he roomed with Bill Clinton. Coleman’s acknowledgements at the end of the book include a veritable Twelve Days of Christmas. With some redacting, the list includes a baker’s dozen of “Brahmins of color,” eleven U.S. Senators and business leaders, ten Supreme Court Justices, nine cabinet members, eight law deans and professors; seven law firm leaders; six other judges; five U.S. Senators; four grandchildren; three city colleagues, members of two political parties; and his wife of 65 years.

If Coleman’s noteworthy acquaintances could fill a phone directory, his narrative and accompanying chronology read like a giant resume. He was born in Philadelphia to an educated mother who loved Proust and to a father who directed Boys’ Clubs; encountered “Yankee racism,” as in a tenth-grade teacher who thought he would make a “wonderful chauffer” (p.7); graduated summa cum laude from the University of Pennsylvania; attended and graduated first in his class at Harvard Law School where he served on the law review; became the first African-American to clerk for a federal appellate judge; clerked for Justice Felix Frankfurter, where he and Elliot Richardson used to spend half an hour a day reading Shakespeare and English romantic poets (p.87); joined the NAACP Legal Defense and Education Fund; served as a partner in prestigious law firms in Philadelphia and in the Washington, D.C. Office of a Los Angeles firm; sat on the Warren Commission; became a member of the U.S. Delegation to the U.N General Assembly; served on the National Commission on Productivity and the Price Commission in the Nixon Administration; co-chaired a State Department Advisory Committee on South Africa; served on the White House Commission on Aviation Safety; argued 19 cases before the U.S. Supreme Court (including the Girard College case); and [*188] has received numerous awards included the Presidential Medal of Freedom. Rarely did he turn down an opportunity for public service, and even less rarely did he pass up a corporate client.

ABRAHAM LINCOLN, ESQ.: THE LEGAL CAREER OF AMERICA’S GREATEST PRESIDENT

by Roger Billings and Frank J. Williams (eds). Lexington: University Press of Kentucky, 2010. 263pp. Hardback. $40.00/₤35.95. ISBN: 9780813126081. Ebook $40.00. ISBN: 9780813126098.

Reviewed by R. B. Bernstein, Distinguished Adjunct Professor of Law, New York Law School. Email: rbernstein [at] nyls.edu.

pp.181-186

Though pivotal for understanding Abraham Lincoln, his life as a lawyer – the subject illuminated by this excellent symposium – has languished in neglect until recently. The essays collected in the book under review make two points: first, that Lincoln was a great lawyer, and, second, that those qualities making him a great lawyer were integral to his Presidency and to his claims to Presidential greatness. Further, in their multifaceted account of Lincoln as lawyer, these essays prove the value of studying the legal career of a great historical figure – an enterprise already represented by projects documenting the law practices of John Adams (Wroth and Zobel 1965), Alexander Hamilton (Goebel and Smith 1964-1981), and Daniel Webster (Konefsky and King 1982-1983).

Lincoln spent twenty-five years (forty percent of his life) practicing law (pp.19;38n6), and issues of law and constitutionalism pervaded his public career, inspiring many of his words and deeds as President. Even so, the Lincoln image created by that always influential but unaccountable cultural force, historical memory, was not learned in law or anything else, owing his greatness to inspiration rather than to hard intellectual work. The remembered Lincoln rarely read law, scoring great legal triumphs solely because of his goodness, honesty, and compassion. Not only does this misleading caricature retain its power despite historians’ and biographers’ efforts to dislodge it – since the 1970s, it has been joined by a equally bogus counter-image, promoted by such neo-Confederate writers as Thomas J. DiLorenzo, depicting Lincoln as a cold, unscrupulous corporate lawyer (pp.6; 16n4).

Though older monographs have examined Lincoln as a lawyer (Hill 1906, Woldman 1936, Duff 1960, and Frank 1961), not until 1989 did the hard work of documenting Lincoln’s law practice begin, when a devoted band of historians and legal scholars created the Lincoln Legals Project, which collected all surviving documentation of Lincoln as a lawyer. The first fruit of this project was the 2000 CD-ROM edition of these papers (Benner and Davis 2000); a selected print version in eight volumes followed (Stowell 2008), as well as a website making the entire project, in its second edition, available online (Benner and Davis 2008). Not only did the late David Donald of Harvard University, author of one of the best Lincoln biographies (Donald 2005), make extensive use of the project’s findings before publication, but the Lincoln Legals Project continues to inspire and undergird research. [*182]

TWILIGHT OF IMPUNITY: THE WAR CRIMES TRIAL OF SLOBODAN MILOSEVIC

by Judith Armatta. Durham: Duke University Press, 2010. 576pp. Cloth $39.95. ISBN: 9780822347460.

Reviewed by Mark A. Drumbl, Washington & Lee University, School of Law. E-mail: drumblm [at] wlu.edu.

pp.177-180

TWILIGHT OF IMPUNITY chronicles the prosecution of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia (ICTY). Milosevic was elected President of Serbia in 1989, President of the Republic of Serbia in 1990, and then President of the Federal Republic of Yugoslavia in 1997. In 2000, he lost elections. He was ousted from power soon thereafter, then arrested in 2001. At the ICTY, Milosevic – colloquially known both as the “Butcher of the Balkans” and the “Savior of the Serbs” – faced 66 charges involving genocide, crimes against humanity, and war crimes arising from nearly a decade of bloodbath in Kosova, Croatia, and Bosnia. He was initially indicted (for crimes in Kosova) while still a sitting head of state. (I follow the author in omitting accents and diacritical markings. I also follow her lead in the use of the Albanian Kosova instead of Kosovo.).

Milosevic’s trial ended on March 11, 2006. The process came to a close without conviction or sentence. Law did not draw the final curtain. The trial’s end came by way of death – Milosevic’s own – in his jail cell after four years’ of proceedings. In this regard, Milosevic cheated the very verdict his concerted dilatory antics had sought to postpone indefinitely.

Judith Armatta, a human rights lawyer and journalist, spent many days over nearly three years attending at Milosevic’s trial in The Hague. TWILIGHT OF IMPUNITY emerges as the ensuing work product. Although she modestly claims that TWILIGHT OF IMPUNITY is “not the definitive trial record” (p.x), it definitely serves as the definitive book about the trial.

Armatta’s encyclopedic compendium is impeccably researched, meticulous, detailed, prudent, and careful. It distinguishes itself as a must-read.

Her chronology follows that of the trial. She begins with the Kosova part of the indictment, then moves to Croatia, and then to Bosnia. She then explores Milosevic’s defense, which was partial in the sense he never came to answer for many of the charges leveled against him – in particular, that of genocide at Srebrenica. Textually, Armatta’s work is accessible. It is jargon-free, denuded of elliptical reasoning, and liberated from nomenclature. Yet it still conveys the complexities of substantive law, the improbabilities of securing convictions, and the often Sisyphean task of proving facts as matters of law rather than accepting them as self-evident happenings.