WHEN GOVERNMENTS BREAK THE LAW: THE RULE OF LAW AND THE PROSECUTION OF THE BUSH ADMINISTRATION

by Austin Sarat and Nasser Hussain (eds.). New York: New York University Press, 2010. 240pp. Cloth. $75.00. ISBN: 9780814741399. Paper $25.00. ISBN: 9780814739853.

Reviewed by Daniel Hoffman, Johnson C. Smith University, retired. Email: guayiya [at] bellsouth.net.

pp.171-176

This timely collection addresses an important and disturbing question: whether legal authorities, at home and/or abroad, should pursue claims that Bush administration officials committed criminal acts in their conduct of the war on terror. The question calls for a close look at the law/politics distinction and the nature of our current form of government. I must acknowledge a certain lack of impartiality on this subject. There are indeed multiple approaches to the rule of law concept. However, I cannot imagine that, in our republican form of government, the rule of law admits of a doctrine explicitly providing that people of a certain political or social status are immune from criminal punishment. Richard Nixon and Bill Clinton were not immune to either civil suit, criminal investigation or impeachment. None of the contributors to the present book makes a clear, principled case for treating Bush officials differently.

The English Revolution was, in significant part, a repudiation of the idea that the King, or anyone else, was above the law. Of course, it did not equalize the distribution of political influence. The American Revolution launched some further progress in that direction, but it is clear that elites still have a disproportionate influence in electing officials, framing the laws and enforcing them. That makes it even more crucial that they be held strictly liable when they break the laws.

The book consists of a lengthy introduction by the editors, followed by three chapters that argue for prosecution and three that argue against. As the Introduction explains, the focus of the book is not on whether anyone in fact violated the law. Rather, the question is whether, presuming crimes were committed, they should be prosecuted. “[T]he demands of a rule of law in the case of political crimes are not self-evident” (p.4). The editors briefly survey three categories of charges that have surfaced: unlawful domestic surveillance, misrepresenting the case for war with Iraq, and torture of suspected enemy combatants. The relevant legal materials thus include the Foreign Intelligence Surveillance Act, state laws against conspiracy to murder, international law concerning crimes against humanity and war crimes (the latter not expressly mentioned here), and the Convention against Torture, with its implementing domestic law. The ensuing chapters, however, focus mostly on torture.

AN INTRODUCTION TO THE LAW OF THE UNITED NATIONS

by Robert Kolb. Oxford: Hart Publishing, 2010. 274pp. Paper. £25.00/$40.00. ISBN: 9781841139371.

Reviewed by Spencer Zifcak, Professor of Law and Director of the Institute of Legal Studies, the Australian Catholic University. Email: Spencer.Zifcak [at] acu.edu.au.

pp.167-170

There have been a number of new books published recently that seek to cover the terrain of United Nations law. Each makes a distinctive and valuable contribution. The third edition of Bennedeto Conforti’s book, THE LAW AND PRACTICE OF THE UNITED NATIONS, provides a most accessible, interesting and lucid introduction to this sometimes complex domain. Professors Thomas Franck, Simon Chesterman and David Malone have compiled the first major book of texts and materials – LAW AND PRACTICE OF THE UNITED NATIONS: DOCUMENTS AND COMMENTARY. The absence of such a book has been keenly felt. It is a readable, educative and enlightening addition to the field, based on the course that the authors have taught at New York University for many years. Then there is the magnum opus, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY, compiled and edited by Professor Bruno Simma. A new third edition of this two volume work is due out soon. It provides the most comprehensive overview of the relevant law that one could imagine. Consequently, it has been the standard text with respect to UN law for the past two decades, providing an encyclopaedic survey of the field. But it runs to several thousand pages and costs almost US$700. So it will be beyond the reach of most, except in university libraries.

Professor Robert Kolb has now added to these his new text on the Law of the United Nations. As is made clear in the title, this is meant to be an introduction to the field and it serves this purpose well. It is relatively brief (at 176 pages) but is accompanied by appendixes containing the full text of the Covenant of the League of Nations and the United Nations Charter. These are most helpful when one is considering the sometimes somewhat arcane law that has developed from them, politically and judicially. Professor Kolb describes his perspective, in a personal vein, in the following terms:

“The perspective chosen is thus a sweeping view from the mountain peak: a sort of bird’s eye view of the valley below like the views one can see from the Swiss Jura mountains of Lake Geneva, where I go hiking in summer. It is not the perspective of a fully-fledged treatise or reference book” (p.v).

Appropriately, Professor Kolb begins by situating present UN law in its proper historical context. The book opens with a detailed chapter on the Covenant and operation of the UN’s precursor organization, the League of Nations. This Chapter sketches the background to the establishment of the League and describes the key provisions of its Covenant. It then elucidates the key similarities and differences between the League of Nations and the United Nations. It concludes with a concise analysis of the reasons for the [*168] League’s decline and fall. The underlying purpose of the discussion is to provide an effective foundation for an historical understanding of the United Nations Charter’s development and provisions. In succeeding brief chapters, the author traces the political processes leading to the UN’s formation, historical phases in its development, its founding principles and the author’s view as to its ideological underpinnings.

GIBBONS v. OGDEN: JOHN MARSHALL, STEAMBOATS AND THE COMMERCE CLAUSE

by Herbert A. Johnson. Lawrence, KS; The University Press of Kansas, 2010. 216pp. Cloth. $34.95. ISBN: 9780700617333. Paper $17.95. ISBN 9780700617340.

Reviewed by Mark Rush, Dean, Arts and Sciences, American University of Sharjah, U.A.E.. Email: markrush7983 [at] gmail.com.

pp.164-166

Herbert A. Johnson’s contribution to the University of Kansas’s series on Landmark Law Cases and American Society will not disappoint the scholar of constitutional law or the fan of the Kansas series. GIBBONS v. OGDEN: JOHN MARSHALL, STEAMBOATS AND THE COMMERCE CLAUSE provides a thorough, thoughtful analysis of this important Supreme Court decision as well as the history leading up to it and its impact. It is a very readable, elegantly written and thoroughly researched analysis.

The book’s most important contribution – and, it would seem, the principal contribution of the series – is the background it provides. Whereas casebooks and constitutional histories of the United States provide broad overviews and summaries of the nation’s constitutional development, the Landmark Law Cases series provides depth and historical analysis that simply cannot be squeezed into the typical constitutional law text. Johnson has not failed in this regard.

A full account of GIBBONS and the complex context in which it arose could easily fill a book of much greater scope than Johnson’s. Yet, in this volume he provides just enough detail and narrative to give the reader an appreciation of the complexity of the problems facing the new nation. While many students of constitutional law may recall the issues of federalism and the definition of commerce that preoccupied the new nation for most of its first century, Johnson also nicely weaves in a discussion of the importance of patents and how they too played an important a role in the development of the national economy as any vision of a free national economic system did.

Johnson begins with a thoughtful discussion of the debates about commerce in the constitutional convention and the importance of the Founders’ preoccupation with commerce and economic policy. While some scholars and critics may wish to downplay or criticize this aspect of the founding, there is no doubting that the health of the fledgling nation’s economy played an important role in the formation of the constitutional structure. He nicely discusses the troubles that had arisen under the Articles of Confederation in the absence of any centralized national economic policymaking authority.

The details of life under the Articles can be overlooked when one seeks to squeeze a complete constitutional history into the girth of even the most slender of casebooks. Accordingly, works such as Johnson’s provide important insights into the difficulties that loomed as the [*165] American economy teetered on the brink of balkanization. States were forced by necessity to cooperate and, as a result, the nation was characterized by a hodgepodge of agreements such as the one Johnson discusses between Virginia and Maryland regarding navigation along the Potomac. If states cooperated, they could benefit and coexist. If they did not, economic gridlock could ensue.

CONSTITUTIONAL THEOCRACY

by Ran Hirschl. Cambridge, MA: Harvard University Press, 2010. 314pp. Hardcover. $45.00/£33.95/€40.50. ISBN: 9780674048195.

Reviewed by Gary Jeffrey Jacobsohn, Department of Government, University of Texas at Austin. Email: gjacobsohn [at] austin.utexas.edu.

pp.158-163

Encountering a book with a title such as the one under review is likely to provoke one of two responses. The first is bewilderment at the author’s apparent obliviousness to the presence of contradiction. The second, much more likely given the reputation of the author as one of our most prominent comparative students of constitutions, comes with a prediction that as a reader you will be asked to reflect counter-intuitively in ways that will transform your thinking about the essentials of constitutionalism. Ran Hirschl, it turns out, is not oxymoronically challenged, and CONSTITUTIONAL THEOCRACY is a signal achievement in the enhancement of constitutional understanding.

Specifically enhancement is required in response to two profoundly important global developments: the strong revival of religiously inspired politics and the great expansion and proliferation of constitutionalism and judicial review. The convergence of these unmistakable trends is manifest in regimes of very different types, ranging from those whose commitment to constitutional principles is conjoined with democratic aspirations, as well as those where a dominant religious presence is the polity’s primary source of law and policy. It is, of course, in connection with the latter type that the placement of the constitutional modifier with the theocratic form of governance appears initially so jarring. Hirschl’s goal is to disabuse us of this common misunderstanding, and further to argue that the dynamic that renders plausible the co-existence of these strange bedfellows also merits our attention in regimes of the first type, which in myriad ways must cope with the stresses of the newly energized religious challenge.

There is significant variation within these two types, and in his first chapter Hirschl details the characteristics associated with the spectrum of possibilities associated with each. In doing so, he provides an extraordinary range of examples from around the world to illustrate alternative models of constitutional practice, a method that is employed to great effect throughout the book. The “ideal” model of constitutional theocracy exhibits several defining elements, only one of which is unique to it; the others may be found in constitutional orders that are in varying degrees deferential to religious demands and sensibilities but which are ultimately non-theocratic in terms of their core constitutive commitments. For example, a constitutional democracy may grant official recognition to one or more religions and yet not be tethered to any particular faith system such that its laws and policies must conform to the theological requirements of that faith. [*159] Such, indeed, is the crux of a constitutional theocracy, namely that all laws must correspond with the injunctions of the state-endorsed religion.

THEORISING THE GLOBAL LEGAL ORDER

by Andrew Halpin and Volker Roeben (eds). Oxford: Hart Publishers, 2009. 288pp. Paper. £36.00/$72.00. ISBN: 9781841132495.

Reviewed by Spencer Zifcak, Professor of Law and Director of the Institute of Legal Studies, the Australian Catholic University. Email: Spencer.Zifcak [at] acu.edu.au.

pp.153-157

Legal theory can be difficult at the best of times. And this is particularly the case where what is being theorized is itself conceptually contestable.

There is a surfeit of literature on globalization but while we know that the phenomenon exists, it can be perceived from a seemingly endless procession of perspectives. In this book at least, the reader knows that what is being discussed is the globalization of law. That narrows the field. But as law is as diverse as its multiplicity of contents and arenas, those seeking to theorize it still face immense challenges in nailing down what a ‘global legal order’ might be and how its creation and elaboration might best be understood and made operational.

There is another problem too. Theory, at least in my view, is meaningful only in so far is it casts light on practice. If it is instructive only in the abstract, it may provoke intense interest and discussion in rarefied academic circles. However, its influence upon international law, politics or diplomacy is likely to be minimal to non-existent. From my perspective then, it is preferable if theory can be made accessible to key actors in the relevant fields, in this case in law and politics, and can illuminate their perspectives and inform their practices. In that light, the task that this book assumes is a formidable one.

The book is an edited compilation of papers delivered at a similarly named conference held at the University of Swansea in 2008. The chapters are diverse and eclectic. It is not easy to discern a consistent thread or threads by which they are linked. Nevertheless, the chapters, taken together, do provide some thoughtful and stimulating insights into how the global order might best be understood, and into the difficulties of joining those insights into a coherent understanding of its character.

THE POLITICS OF IMPRISONMENT: HOW THE DEMOCRATIC PROCESS SHAPES THE WAY AMERICA PUNISHES OFFENDERS

by Vanessa Barker. New York: Oxford University Press, 2009. 264pp. Hardback. $35.00/£22.50. ISBN: 9780195370027.

Reviewed by Lisa L. Miller, Department of Political Science, Rutgers University. Email: miller [at] polisci.rutgers.edu.

pp.146-152

Vanessa Barker has made an impressive contribution to the politics of punishment literature in three key respects. First, she tackles the substantial variation across the U.S. states in terms of their responses to rising crime rates and large-scale social transformations of the 1960s through the 1980s. This is a crucial contribution as many scholars of crime and punishment have long noted the gap in attention to state politics. Barker’s book calls into question any general account of American punishment that does not consider the causes of cross-state variation.

Second, she takes political institutions seriously, suggesting that attitudes and ideas about punishment are filtered through the multitude of political institutions across the diverse and varied American states. In doing so, she is particularly attentive to how people interact with and form state governance in ways that are related to political economies, social orders and historic contingencies. Her effort to avoid the pitfalls of much punishment scholarship that describes outcomes without reference to any particular actors is laudable.

Finally, and perhaps most importantly, Barker questions the long-standing assumption that democratic processes necessarily lead to more punishment. Barker demonstrates that the states that have highly developed democratic and pluralistic processes can, in fact, be less punitive than those with less public participation. While the conceptual framework she employs has limitations, this contribution is enormously important as punishment scholars have tended to assume that democratic participation will always increase punishment. Barker rightly calls this into question and sets a framework for more empirical research on the relationship between democracy and punishment. Indeed, her work demonstrates that “increased democratization can support and sustain less coercive penal regimes” (p.12).

CHRISTIANITY AND LAW: AN INTRODUCTION

by John Witte, Jr. and Frank S. Alexander (eds). Cambridge and New York: Cambridge University Press, 2008. 400pp. Hardback. £55.00/$90.00. ISBN: 9780521194419. Paperback. £18.99/$29.99. ISBN: 9780521143745. Adobe eBook format. $24.00. ISBN: 9780511922671.

Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse, mcdougal.step [at] uwlax.edu.

pp.139-145

John Witte, Jr. and Frank Alexander have gathered a set of most useful scholarly essays on the multiple, complex relationships between formal western law and the European religious heritage of Christianity. The readings are original essays, but as the book’s title proclaims, they are crafted as introductions to relatively discrete topics within the larger field of Law, Politics and Religion. Consequently, the authors here are not blazing new trails of scholarship, so much as reiterating in abbreviated form the insights and evidence of their larger research efforts.

At the risk of making myself feel old, let me begin by saying that “whenIwasingradschool,” religion was not really part of the curriculum, nor even much of the academic landscape. Back then, “religious discourse” meant the emerging “Far Right” (as it was termed dismissively), yet its possible influence in society – and therefore upon society’s law – was at best a micro-specialty. The dominant viewpoint was that social science, secular philosophy, and institutional inertia would prevail. Both realist and critical legal scholarship alike saw little of intrinsic importance in religion. Much of mainstream socio-legal scholarship seemed to follow a modernist path of taking religious knowledge as more-or-less the inverse of scholarly knowledge, and critical scholarship treated religiosity more-or-less as it did most institutions and traditions of western civilization.

Time passed, of course, and politics happened – religious politics, especially in the United States. Academic political science coped. There has been growing sophistication in the past 25 years, to be sure. A “field” has emerged and become institutionalized within numerous associations. Several excellent journals exist.

Contemporary scholarship proceeds with far more respect for the tremendous complexity of faith in the human condition. In Witte’s and Alexander’s volume, the complexity and historicity of western law, politics, and Christianity are illuminated across a range of modern legal categories and concepts. Many of the essays are historical in scope, tracing the ancient lineage of our modern, bedrock (and presumptively secular) legal concepts, and illustrating how major aspects of modern law rest historically within the overtly Christian culture of late Rome, the early Church, the medieval Catholic Church, and the Reformation. Witte’s introductory essay makes the authors’ concerns clear: “How do legal and religious ideas and institutions, methods and mechanisms, beliefs and believers influence each other – for better or for worse, in the [*140] past, present and future?” (p.3). He characterizes the interaction as dialectical and cross-fertilizing. The individual essays illustrate this quite effectively.

THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE

by Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman. New York: Cambridge University Press, 2010. 190pp. Cloth, $85.00. ISBN: 9780521119580. eBook. $68.00. ISBN: 9780511771545.

Reviewed by George Thomas, Department of Government, Claremont McKenna College. Email: gthomas [at] cmc.edu.

pp.135-138

This is a curious book and, yet, a successful book. While the chapters that make up the book are written by different authors or sets of authors, and identified as such, the introduction makes a plea that this work be treated as a book and not an edited collection of essays. This plea gave me pause, but the three lines of research that began independently of one another do more or less come together to form a book. And the claim of Gary Lawson, Geoffrey P. Miller, Robert C. Natelson, and Guy I. Seidman is that the principle of fiduciary responsibility found in administrative law, the private law of agency, and corporate law can help us make sense of the “necessary and proper clause.”

As it happens, this is also a timely book. The necessary and proper clause has once again become central to debates about Congressional power – particularly with regard to health care reform. Indeed, if it was thought that Congress could easily reach health care under a broad reading of its power to regulate interstate commerce, scholars have show that many of the most expansive readings of Congress’s power under the commerce clause, such as WICKARD v. FILBURN and GONZALES v. RAICH, are in fact best understood as rooted in the necessary and proper clause. Just how this clause ought to be understood, then, has become a pressing constitutional question.

The necessary and proper clause is often thought to have obscure origins. Almost nothing gets said about it at the Constitutional Convention, though it was the subject of much discussion in the ratifying debates. Added by the Committee of Detail, its precise language has often been obscure. It has even been referred to, in a somewhat overwrought manner, as a “constitutional stupidity.” This head scratching is not without cause. And yet one does wonder if this is an overly academic exercise in head scratching. After all, Chief Justice John Marshall’s opinion in MCCOLLOUCH v. MARYLAND offered a fairly powerful – if commonsensical – understanding of the clause that drew in part on Alexander Hamilton’s interpretation of the clause in the debates over the first National Bank in 1791. As Marshall argued, “But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be [*136] required to prove, that in the absence of this clause, Congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional.” (MCCULLOCH, at 419)

CONSTITUTIONAL IDENTITY

by Gary Jeffrey Jacobsohn. Cambridge, Massachusetts: Harvard University Press, 2010. 388pp. Cloth. $45.00/£33.95/€40.50. ISBN: 9780674047662.

Reviewed by Martin Edelman, Department of History, Philosophy, Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.

pp.132-134

Gary Jeffrey Jacobsohn has written a major work. It deals with the role that constitutions play in contemporary societies. CONSTITUTIONAL IDENTITY makes important contributions to constitutional theory, comparative law, and comparative politics. Those contributions spin off the book’s central thesis: “Constitutions are in a decisive way characterized by disharmony, a process that may result in changes in identity that, however significant, rarely culminate in a wholesale transformation of the constitution” (pp.325-326).

Following Aristotle, Jacobsohn insists that a nation’s constitution is more than a written document; it also entails the fundamental norms and principles of a particular society. “The constitutional text is usually a critical component of constitutional identity but not coterminous with it” (p.78). This broad concept of constitutionalism enables him to include insightful discussions of the ongoing constitutional debates in Israel, which to this day lacks a formal, integrated, written constitution.

Unlike Aristotle, Jacobsohn maintains that not all nations have real constitutions. For him, the core of constitutional government is the rule of law and the administration of impartial justice (p.70). (So much for the sham constitutions perpetrated by the likes of Josef Stalin.) These are the universal essentials. The heart of a nation’s constitutional identity is how it blends such universal values into its own culture.

It is the blend with a nation’s particularistic history, mores, values and aspirations that defines its constitutional identity. A nation’s constitutional identity is never a static thing. (So much for ‘originalist’ theories of constitutional interpretation.) Rather, a constitutional identity emerges from the interplay of inevitably disharmonic elements (p.133).

Jacobsohn correctly argues that his major contribution to constitutional theory is that “disharmony, whether lodged within a constitution, or . . . in the gap between inscribed commitments and external realities, is the main impulse behind the shaping of constitutional identity” (p.335). Inscribed commitments frequently contain unresolved conflicts papered over in the compromises that produced a written constitution. In the United States, the 1787 Constitution deliberately left unresolved the contradiction between slavery and the Founders’ commitment to universal natural rights. External realities are the changed environments (political, economic, attitudinal) that all long-lasting architectonic texts must confront. In the United States, the industrial [*133] revolution generated a conflict over the role of the national government. The resolution of disharmonic elements leads to a modification of a nation’s constitutional identity.

INTELLECTUAL PROPERTY AND HUMAN RIGHTS: A PARADOX

by Willem Grosheide (ed). Cheltenham, UK & Northampton, MA, USA: Edward Elgar, 2010. 328pp. Cloth: €89.95/$160.00. ISBN: 9781848444478.

Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of the Intellectual Property Concentration at Suffolk University Law School in Boston. Email: Mrustad [at] suffolk.edu.

pp.128-131

The World Intellectual Property Organization (WIPO) and the Office of the United Nations High Commissioner for Human Rights (OHCHR) highlighted the significant questions raised in this book in their panel on “Intellectual Property and Human Rights” which took place in Geneva on November 9, 1998, to mark the Fiftieth Anniversary of the Universal Declaration of Human Rights (UDHR). Intellectual property rights (IPRs) were embodied as human rights first in the UDHR and later addressed in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1994. . By way of example, Article 27 of the UDHR states that all world citizens have a right to participate in the cultural life of the community. This volume updates the intellectual property/human rights connection with its thoughtful essays addressing issues such as access to culture, indigenous people’s right to preserve traditional knowledge, and the rights of authors and creative workers in an increasingly globalized, networked world.

This is a welcome volume because further research is needed on the complex relationship between intellectual property and human rights. One hypothesis is that intellectual property is at odds with human rights. Too much patent protection, for example, may have deleterious impacts on health care in less developed countries (LDCs). A patent is a right to exclude and therefore a drug patent may well exclude those without the means to pay for a pharmaceutical needed to sustain public health. The law of trade secrets for example requires the owner to use reasonable means to keep information secret. This requirement conflicts with the wide dissemination of traditional knowledge. This collection of essays on the relationship between intellectual property law and the law of human rights arises out of a conference held in 2006 to celebrate the twentieth anniversary of the Centre for Intellectual Property Law (CIER) at the Molengraaff Institute for Private Law at Ultrecht University in the Netherlands. This edited volume on the intellectual property/human rights nexus is the first in a series of scholarly works from the CIER.

The general introduction by Willem Grosheide of CIER is a telescopic outline of the origins and development of intellectual property rights and human rights. Professor Grosheide does an excellent job of explaining the roots of IPRs and explaining how they became internationalized with the Paris Convention of 1883 (PC) on industrial property (patent law) and the Berne Convention of 1886 on copyright law (BC) (p.4). He explains that the birth of [*129] human rights was made possible by general support for “self-determination without any distinction as to race or sex, as well as the broad promotion of social, economic, and political rights for everyone” (p.4). He asks whether human rights are culturally or universally defined (p.6). If intellectual property is a human right, it is questionable whether IPRs should be able to be exploited by corporate entities holding them (p.6). Another quandary is that IPRs are protected by private law, while human rights are embedded in public law (p.5). Also at issue is whether it makes a difference if IPRs are being exercised in the developed world as opposed to in LDCs (p.6). Grosheide’s general introduction explains how human rights are addressed through international treaties and instruments (pp.7-21). He examines instruments such as the BC, PC, and the WIPO Copyright Treaty (WCT 1996) (p.9) even though these instruments do not explicitly address human rights (p.13).

CRIMINAL PROCEDURE AND THE SUPREME COURT: A GUIDE TO THE MAJOR DECISIONS ON SEARCH AND SEIZURE, PRIVACY, AND INDIVIDUAL RIGHTS

edited by Rolando V. del Carmen and Craig Hemmens. Lanham, MD: Rowman & Littlefield Publishers, 2010. 382pp. Hardback $49.95. ISBN: 9781442201569. Paper ISBN: 9781442201583.

Reviewed by Salmon A. Shomade, Department of Political Science, University of New Orleans. Email: sshomade [at] uno.edu.

pp.123-127

Selecting and writing about the top twenty U.S. Supreme Court cases in any area of a law is a difficult but noble cause. CRIMINAL PROCEDURE AND THE SUPREME COURT: A GUIDE TO THE MAJOR DECISIONS ON SEARCH AND SEIZURE, PRIVACY, AND INDIVIDUAL RIGHTS proposes to present the top twenty Court decisions in criminal procedure. Noting that each of the top twenty cases was selected “based on its perceived impact on police work and daily police interaction with the public” (p.2), the editors surmise that even if the case specifics are not well understood, every case is or should be familiar to police officers and the general public. Editors Rolando V. del Carmen and Craig Hemmens complete the introductory pages by explaining the book organization – a sequential division of the twenty cases (each case constituting a chapter) into eight parts – and outlining the basic framework for each chapter generally comprised of a case introduction, analysis of the facts and opinions, updates, significance, and conclusion.

In the Introduction, Del Carmen and Hemmens maintain that many criminal procedure books used in criminal justice tend to lack in-depth discussions of cases mentioned while those used in law schools include lengthy case presentations but little case discussions or updates. The editors contend that their “book seeks to combine both approaches, choosing the most significant cases in criminal procedure, ranking them, discussing the decision in totality (including dissenting and concurring opinions), and updating and then placing them in perspective” (p.1). Del Carmen and Hemmens note that by utilizing a “vertical rather than a horizontal approach to learning criminal procedure” (p.1), readers are left with a better grasp of the most relevant decisions. Acknowledging that case ranking is a subjective enterprise, the authors claim, however if “properly used . . . rankings constitute a starting point for inquiry but should not be considered the final word. They can be useful tools for discussion and debate but should not be proxies for personal informed choices” (p.2). Not too many scholars will disagree with the selection of the twenty major cases presented, but conspicuously missing from the book is a list featuring the ranking within the cases. This is notable because the editors mention MIRANDA v. ARIZONA (1966) as “case number one” (p.2) and CARROLL v. UNITED STATES (1925) as “case number seven” (p.2) in the introduction, but the rankings of the other cases are not presented in [*124] the book. While the omission might be inadvertent or intentional, the rankings list could have been a significant contribution of this treatise to the literature. Nonetheless, the presentation of these top twenty cases written by different scholars, and complete with detailed analyses of facts, opinions, and subsequent histories, still makes the book a decent addition to one’s criminal procedure library.

THE CONSTITUTION OF SOUTH AFRICA: A CONTEXTUAL ANALYSIS

by Heinz Klug. Oxford: Hart Publishing, 2010. 311pp. Paper. $32.00/£16.95. ISBN: 9781841137377.

Reviewed by Theunis Roux, Faculty of Law, University of New South Wales. Email: t.roux [at] unsw.edu.au.

pp.117-122

Ten years ago, with the publication of CONSTITUTING DEMOCRACY (Klug 2000), Heinz Klug gave us one of the best accounts yet written of the causes and nature of South Africa’s transition to democracy. In carefully crafted prose he explained how first the 1993 and then the 1996 Constitutions were forged out of a dynamic interaction between South Africa’s tradition of democratic struggle and the available constitutional models in “international political culture.” Admirers of that book will find Klug’s latest offering, a “contextual analysis” of the 1996 South African Constitution, somewhat less ambitious in design and more workmanlike in execution. Reprising some of the themes developed in the earlier work, Klug on this occasion does not attempt to blend them into a coherent whole, and declines to offer a firm view on whether South Africa’s constitutional democracy is living up to international and local expectations.

The more open-ended approach adopted in the current book is no doubt attributable to the nature of the series for which it was written, Hart Publishing’s CONSTITUTIONAL SYSTEMS OF THE WORLD (under the general editorship of Peter Leyland and Andrew Harding). The blurb for the series declares its aim as being to “provide scholars and students with accessible introductions to the constitutional systems of the world, supplying both a road map for the novice and, at the same time, a deeper understanding of the key historical, political and legal events which have shaped the constitutional landscape of each country.” These are fairly modest goals, and Klug’s contribution to the series easily achieves them. The emphasis on accessibility, however, has produced a book that references very little of the scholarly literature on comparative judicial politics and gives a largely descriptive account of the major constitutional developments in South Africa after the transition to democracy in 1994.

The looser structure starts with Klug’s introductory remarks on his central theme, the notion of a “contextual analysis.” No definition of this term is provided, nor is there any real statement of the scholarly purpose behind this approach. As the discussion progresses, it becomes clear that by “context” what Klug means is something like social issue rather than the political and institutional context for judicial review in South Africa. Even then, however, his list of five issues, which Klug says “incorporate five general themes” (p.2), are somewhat different in kind and thus difficult to ascribe to any particular theoretical or conceptual framework. They comprise: “the legacies of colonialism and apartheid; pervasive social problems, such as crime, gender [*118] relations and HIV/AIDS; legal pluralism; aspiration for a rights-based culture; and democratic governance” (p.2). Absent a definition, it is hard to grasp what makes these issues contextual or what connects them to each other. Why these five and not any other five? All that we are told is that “[e]ach of these categories covers a number of specific issues, and will enable a general discussion of the ways in which the [1996 South African] Constitution – through its creation of institutions, allocation of power, and proclamation of rights – attempts to address the past and construct a future society that transcends the often desperate, violent, unequal and unforgiving realities of the present” (p.2). As academic prose goes this is all quite adequate, but it lacks the clarity of analytic purpose that marked Klug’s earlier book.

THE PSYCHOLOGY OF JUDICIAL DECISION MAKING

by David Klein and Gregory Mitchell (eds.). New York and Oxford: Oxford University Press, 2010. 360pp. Hardback. $75.00/£45.00. ISBN: 9780195367584.

Reviewed by Justin Wedeking, Department of Political Science, University of Kentucky. Email: justin.wedeking [at] uky.edu.

pp.112-116

If space is the final frontier for mankind, then understanding the psychology of judicial decision making is arguably the final frontier for judicial scholars. This edited book provides an overview of myriad ways scholars might think about studying how judges go about reasoning, exercising judgment, and making decisions – all important tasks that judges perform on a daily basis. The book is divided into three parts. The first part focuses on judges and human behavior generally, the second part examines judging as a specialized activity, and the last part concentrates on evaluating and improving judging. The list of contributing authors is long and distinguished, coming from a variety of perspectives in psychology, political science, and the legal academy. On many fronts, the book is a step in the right direction. Most of the authors are in agreement that more inquiry needs to be undertaken if we are to better understand what goes on inside the judicial mind. And rightly so, I think, because of the enormous legal and policy ramifications that judges’ decisions have on society and the law. In what follows, I provide a brief summary of the three sections of the book, highlighting what I believe are the especially provocative and important insights this collection of scholars brings to light, along with a few weaknesses. After that, I provide some general thoughts and critiques of the book as a whole and conclude by making some suggestions about how this book may be used in the classroom.

The book begins with a brief introduction (David Klein) that serves as a roadmap for the ensuing chapters. It serves a useful purpose, highlighting the origins of the book, the goals and themes of the corresponding sections and chapters, and a general disclaimer that the book was not intended to provide a complete framework for the study of psychology in judicial decision making (i.e., it does not cover emotion).

Part I, which examines judges in the context of human behavior, takes the starting point that humans act on a wide variety of motivations. The common theme is that these motivations need to be incorporated into our thinking of how to better analyze judges. The section begins with Chapter 1, where Lawrence Baum, who, after providing an overview of the decision making field, provides many useful points about the importance of incorporating cognition, motivation, and goals into a framework of decision making. Baum then proposes an existing framework in which we can think about judging, the heuristic-systematic model of information processing, which was developed by Shelly Chaiken and her colleagues. This “dual-process” model, which is but one of many versions in psychology, [*113] considers the motivational basis for goals, the two dimensions of motivation (directional and energizing), and motivational variation across individuals and situations. The chapter then closes by exploring a few implications that a psychological approach might have for our understanding of judicial decision making.

MAKING RIGHTS REAL: ACTIVISTS, BUREAUCRATS, AND THE CREATION OF THE LEGALISTIC STATE

by Charles R. Epp. Chicago & London: University of Chicago Press, 2010. 368pp. Cloth $72.00. ISBN: 9780226211640. Paper: $22.90. ISBN: 9780226211657.

Reviewed by Laura J. Hatcher, Department of Political Science, Southern Illinois University. Email: hatcher [at] siu.edu.

pp.107-111

As a professor who teaches administrative law and politics and is interested in the intersection of administrative law and constitutional litigation, I am always in search of theoretically-engaging and empirically grounded research for my upper division seniors and graduate students that is also readable. Charles Epp has produced such a work. In lucid prose, Epp develops an argument for understanding administrative change that takes into account pressures from within bureaucracies as well as from outside them. With a combination of interviews, content analysis of professional publications and court cases, as well as original survey data, Epp also gives his readers an excellent example of multimethod research that is driven by the question rather than a specific methodology. Through a close comparison of three case studies – policing, sexual harassment, and playground safety – Epp demonstrates that dynamic interactions among bureaucrats and activist reformers produced a framework for accountability that both proliferated throughout the country and has remained surprisingly resilient. In short, this is a book that is a must-read not only for administrative law and public administration scholars, but also for anyone interested in organizational change, social change, and litigation as a political process.

Many of Epp’s early pages are devoted to laying out a conceptual framework that provides an explanation of bureaucratic change over the course of the last 25 years. He introduces us to a policy framework he calls “legalized accountability” (p.2). He argues that beginning in the late 1970’s, reform-minded professionals and activists pressed for transformation in policy arenas where bureaucrats resisted (or sometimes simply refused) reform-oriented change. “Legalized accountability,” according to Epp, was a “law-styled attempt to bring bureaucratic practice in line with emerging legal norms” (p.3). Reformers wanted to see bureaucracies do more than simply adopt reforms on paper, and pushed for deeper implementation processes that included “written rules, formal systems of training, and internal systems of oversight to assess compliance with rules” (ibid.). These rules were not required through statute or legal decisions, but rather were adopted after the managerial professions sought ways to resolve conflicting norms within the professions themselves in response to the pressures from activists and reformers. Epp provides an analysis of how legalized accountability developed in the complex dynamics that developed between activists from outside the agencies and reform-minded bureaucrats within them. [*108]

According to Epp, pressures on bureaucracies to reform various practices came to a “critical juncture” in the late 1970’s and early 1980’s when “growing litigation threats against agencies and an emerging professional reform campaign within them fused, yielding an explosion in the fear of liability among professional practitioners” (p.3). One of Epp’s most intriguing findings is that the threat of liability (rather than the actual finding of liability by a court) became a lever to push for change among professionals seeking a mechanism to reform their agencies. Again and again in his case studies, we see professionals in bureaucratic organizations responding to the possibility of litigation as a threat to their professionalism, not merely as a financial threat. The possible embarrassment that a negative finding by a court would bring to their agency proved, according to Epp, to be more important than the potential financial loss. As Epp explains, “…bureaucratic reformers on the inside of the system – ostensibly the targets of liability – enthusiastically joined with external activists in using the threat of liability as a lever of reform” (p.3).

TWILIGHT OF CONSTITUTIONALISM?

by Petra Dobner and Martin Louglin (eds). Oxford: Oxford University Press, 2010. 360pp. Hardback. £55.00/$110.00. ISBN: 9780199585007.

Reviewed by Clifford A Bates, Jr., American Studies Center, Warsaw University. Email: c.a.bates [at] uw.edu.pl.

pp.104-106

This volume is one of those books European scholars now feel compelled to do after every conference or research gathering. Usually it is an attempt to justify the expense of such gatherings to university or national grant-giving bodies by the production of some published artifact of the event so those money-giving bodies can see some tangible thing that they can point to as proof that said money was well spent producing something. This particular volume is a product of one such endeavor. It was a product of a study group of a German "Advanced Study" center gathering a number of scholars from different social science disciplines to reflect on and think about the subject of 'constitutions beyond the nation-state.'

One does not truly expect that the essays in this volume to really be anything more than the various perspectives and thoughts of the various scholars in the various fields of constitutional studies (law, political science, sociology, public administration, international relations, etc.) on the possibilities the current world and regional environments pose for the very idea of constitutions and constitutionalism. Given the setting of the meeting, Berlin, one of the largest political capitals in Central Europe, that this volume so focuses on the possibility of constitutionalism beyond the realm of the nation-state is a telling bit of evidence of the continuing preoccupation of European elites of a politics that transcends the limits of traditional political environment of nation-states. We can take the very desire to talk about this issue still is a product of the climate that still lingers over Europe over the near-decade failure to produce a European Constitution for the enlarged European Union. The need for the European Constitution was seen as a necessity to insure that the EU was understood more than an instrument of political integration rather than merely economic integration. The very fact that the EU was more than merely an economic organization unifying the member states pointed to a possibility of politics and governance beyond the constraints of the traditional nation-states. Yet what this meant is very much a point of dispute and the fact of that dispute is rather reflected in the various positions taken among the papers in this volume.

The volume's core idea that there are possible constitutions that transcend the only existing political body currently recognized as a political body -- the sovereign nation state. The various scholars in this volume all seem to be dealing with the assumption that the forces of globalization have created a new environment where the traditional international system of nation-states are faced with problems that challenge their very sovereign powers and threaten their [*105] ability to do what they are supposed to do. The new consensus is that the reality of gloablization renders the traditional understanding of sovereignty problematic at best and in serious need of rethinking, or at least re-tooling. What is suggested is that to ensure that the new global environment becomes one governed by more than economics and ensures the survival of politics, there is a need to construct or at least envision an evolution in the concept of constitutionalism, one that will allow it to transcend the frame of states. But such a ‘political’ frame would require something beyond a merely economic instrument but a system that can make possible post-nation-state system of inter-state governmentality. A truly political frame which would insure the survival of the political dimension cannot be simply reduced to one of discussing mere economic distributions of social goods. The desire to escape the trend of reduction of politics into economics is one of the core issues faced by the current political reality shaped by the forces of globalization.

RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT

by John Witte, Jr. and Joel Nichols. Philadelphia, Pennsylvania: Westview Press, 2010. 384pp. Paper $42.00 US/ $53.50 CAN. ISBN: 9780813344751.

Reviewed by Gloria Cox, Dean, Honors College, University of North Texas. Email: Gloria.Cox [at] unt.edu.

pp.98-103

In this fine, scholarly book, the third edition of RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT, authors John Witte, Jr. and Joel A. Nichols construct for the reader an excellent foundation for understanding the religious issues that have captured the attention of Americans since European settlers first came to these shores. Religious issues are complex, of course, and have not only religious, but also sociological, political, philosophical, and economic dimensions. Recognizing the difficulty of getting one’s mind around so large a subject, the authors explain the origins of the prevailing religious views in the United States. It is the best overview of the subject I have ever read, and I am happy to recommend this excellent book to anyone with an interest in the subject. I dare say that Sir Francis Bacon, from whom the authors took inspiration for dealing with an idea “wandering, without any regular system of operations” would be proud of what Witte and Nichols present within these pages (p.xxii).

All students of religious issues in a legal context know that the two religion clauses of the First Amendment are just the beginning, and that understanding these Constitutional guarantees requires knowledge of dozens of important cases that give meaning and substance to the clauses. Once Witte and Nichols lay their foundation, they explain cases across the broad range of topics that have come to define free exercise and establishment. The detail is there, within a context whenever appropriate, making this a book that can serve the serious student of religious issues in America.

Many readers might conclude, as I did, that the first section of the book is the most valuable, as it provides a much-needed but rarely-heard historical foundation for understanding contemporary issues. Witte and Nichols lay at the feet of Constantine the Great the credit or blame, depending on one’s perspective, for unifying government and religion when he made Christianity the official religion of Rome after his own conversion. Their discussions include the effects of having a state religion, Rome’s unsuccessful attempts at religious toleration, and the awful treatment of heretics. The authors briefly explore St. Augustine’s concept of two separate realms, one of man and the other of God, neither of which was to tread on the other’s territory.

The authors go on to explore the rising strength of the Catholic Church and its Popes as the centuries passed, and the resultant dominance of religious over secular power. In 1050, Pope Gregory declared the Catholic Church “to be an independent and superior legal and political authority of Western [*99] Christendom” (p.7), leaving emperors and kings impotent in the face of church power. The result was centuries of conflict between church and state, popes and kings, followed by conflict within Christianity as the Reformation took place. For centuries, the setting was one of corruption within the Catholic Church coupled with civil and religious persecution of heretics, Jews, Muslims, and non-traditional Christians. Readers will want to pay close attention to the authors’ discussion of how the Reformation broke up Christian unity and brought about pluralism. As they note, the Lutheran Reformation territorialized the faith, the Anglican nationalized it, the Anabaptist communalized it, and the Calvinist congregationalized it (pp.10-11).

THE CONSTITUTIONAL PROTECTION OF CAPITALISM

by Danny Nicol. Oxford: Hart Publishing, 2010. 220pp. Hardcover. £35.00/$70.00. ISBN: 9781841138596.

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

pp.90-97

THE CONSTITUTIONAL PROTECTION OF CAPITALISM is an ambitious title, which makes a worthy academic promise by posing a foundational question. The theoretical fathers of modern constitutionalism viewed property as a pre-political right attached to personality. Locke’s argument in the SECOND TREATISE, where ‘estate,’ life, and liberty are analytically on the same par and inextricably interlinked is the classic example. Consequently, protecting property from public interference as a matter of principle meant respecting personal dignity and safeguarding natural individual and –incidentally-- societal autonomy against the state. Even censitary suffrage was justified in an essentially individualistic-meritocratic key: holding a certain amount of property was perceived to reflect both a “rough index of capacity, stability, and good will in the individual” (Pitkin 1967, p.191) and the best indicator of independence from undue influence. Actual legal arrangements (constitutional law) mirrored the philosophical presuppositions of limited government (constitutionalism). Classical systems guaranteed property protections as a matter of foremost principle, with the federal US Constitution of 1787 as the harbinger and preeminent example. By the same token, the defense of property against political encroachments regarded as illegitimate by constitutional default conferred upon public law an ancillary character. Just as the classical liberal state was the accessory of society, classical constitutional law was in effect “the accessory of private law” (Grimm 1987, p.195).

The entire paradigm started to be called into question with increasing urgency during the second half of the 19th century, not just as a result of the rising mass democracy but also, and perhaps primarily, by virtue of a structural economic upheaval: the advent of technologically standardized and concentrated late capitalism. In US law, due to the entrenchment of property protections in the Constitution and the legal and political entrenchment of the Constitution itself, the juridical stakes of the transformation were higher and more visible than in other Western democracies. The legislative and judicial ambivalence surrounding the Sherman and Federal Trade Commission Acts evinced foundational uncertainties from the onset (Henderson 1924). By the turn of the new century even the most fiery regulators and trustbusters were somewhat at a loss as to the deeper causes of and the possible solutions to the problems at hand, as Mr. Dooley’s rendition of Theodore Roosevelt’s first Message to Congress forcefully indicated: “Th’ thrust are heejous monsthers built up be th’ inlightened [*91] intherprise iv th’ men that have done so much to advance pro-gress in our beloved counthry. On wan hand I wud stamp thim undher fut; on th’ other hand not so fast.” (in Hurst 1984, p.84) The uncertainty remained, as the uneasy coexistence of different and irreconcilable economic philosophies within the New Deal reveals (Hawley 1966) and was by no means fully resolved by the post-New Deal (respectively, in other Western democracies, post-WWII) constitutional retrenchment to accommodate the rising administrative state. The ‘state of the industrial society’ (Forsthoff, 1971), with its blurred social, economic, political, and constitutional realities, was already firmly in place and there to stay.

The crux of the constitutionalist dilemma has been from the beginning of these metamorphoses: to what extent could property continue to be given a preferred constitutional status as a fundamental right once the general conditions of its acquisition, use, and disposition had changed so fundamentally? A deeper latent question was whether the initial constitutional protection of an individual right to property had reverted by force of the intervening events into the unjustified protection of an impersonal system, potentially oppressive of the individual. The reverse implication was also apparent. Constitutionalism (limited government) presupposes by definition a residual individual and societal zone of freedom from state interference but how and where would the new boundary be drawn, once a problem of first principle had turned into a matter of uncertain degree? The intervening time has magnified exponentially the scope of the challenges, as the causes of the initial domestic dilemma have been progressively universalized and intensified by the set of transnational processes collectively referred to under the umbrella concept of “globalization.”

SURVEILLANCE IN THE TIME OF INSECURITY

by Torin Monahan. New Brunswick: Rutgers University, 2010. 224pp. Cloth. $72.00. ISBN: 9780813547640. Paper. $24.95. ISBN: 9780813547657.

Reviewed by Kimberly A. McCabe, Department of Sociology and Criminology, Lynchburg College, Lynchburg, Virginia. Email: McCabe [at] lynchburg.edu.

pp.88-89

In his book SURVEILLANCE IN THE TIME OF INSECURITY, Torin Monahan provides insights into the subjects of security in the 21st century and the vulnerability fueled by politicians, media, and private manufactures of new-tech security efforts. Through two distinct parts, Monahan provides the readers with updated perspectives on security culture to include situational awareness of the security industry and vulnerable identities and surveillance infrastructures that would complement any contemporary policing or security course.

Monahan begins his text with an introductory discussion of the social construction of insecurity. Included in this discussion are examples of how an individual, who feels vulnerable in a certain area, may be more likely to view competition in that area as a threat. In addition, this introductory section lays the framework for the two parts of the text by clarifying that the phrases security culture as referring to prevailing understandings of threats and appropriate responses and surveillance infrastructures as the technological systems that are used to mitigate risk and regulate populations.

The first part of the text, Security Cultures, is divided into five chapters. In the first chapter, Monahan discusses some of the efforts by the United States to achieve national security and the feelings of insecurity by the American population perhaps as a result of the publicized government efforts to ‘keep folks safe’. The second chapter, Twenty-Four Hour Exceptions, discusses our lack of preparations for future disasters while using the television show 24 as reference. Of course, if one is unfamiliar with 24, then one is at a disadvantage when reading this chapter. The third chapter, Situational Awareness of the Security Industry, discusses the security industry and its short-comings. In addition, this chapter, through the use of the Virtual Alabama project, introduces the value of public and private efforts for national protection. The fourth chapter, Vulnerable Identities, focuses on identity theft as a threat to individuals every day and is the most applicable chapter in this part. The fifth chapter and final chapter, Leaving Others Behind, uses the Left Behind book series and its religious foundations as a basis for explaining the roles of various technologies for identification and paths of vulnerabilities. By citing examples from the various books, the vulnerabilities of the individual and society are brought forth as risk factors for a secure future.

In the second part of his text, Monahan discusses in four chapters the power behind surveillance and the control of [*89] society that is afforded within the various infrastructures. Chapter Six, Residential Fortification, continues the discussion of identity theft from chapter four. However, this chapter utilizes a comparison of low-income public housing and gated communities to support the notion that community surveillance is not equally distributed. Chapter Seven, Controlling Mobilities, is focused on the surveillance and security dimensions of intelligent transportation systems (ITS) in the United States. This chapter, probably the strongest and easiest read in the text, conjectures that as long as streets are viewed simply as a means to travel from one location to another and not as their own place in need of security, vulnerabilities will continue to exist. Chapter Eight, Masculine Technologies, offers a discussion on the gender dimensions of surveillance systems. Chapter Nine, Countersurveillance, the final chapter of the text, focuses on proactive approaches and the advantages of countersurveillance activism.

INTERNATIONAL REFUGEE LAW

by Hélène Lambert (ed). Ashgate Publishing, 2010. 554pp. Hardback. $300.00/£155.00. ISBN: 9780754628132.

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

pp.82-87

In America and other democratic societies (where freedom and tyranny normally do not reign together), international refugee law and the much involved diplomacy that comes with it many times goes unnoticed. In recent news, it has become a laughing matter by many when Randy and Evi Quaid were seeking refugee status in Canada citing a “star whacking” threat. Many ask: What is a Refugee or Asylum Seeker?

If the study of international refugee law causes you to yawn, perhaps there is reason for you to change your opinion. Even I at first did not want to know about the topic, but then after reading the first essay I was hooked and continued to read. I discovered that international refugee law has affected my family history and will become a central focus in immigration policy in the near future. Scanning the internet sources dealing with international refugee law, there is an obvious bias for asylum seekers to choose the United States, which recognizes persecution “on account of race, religion, nationality, political opinion, or membership in a particular social group” (INA § 208; 8 U.S.C. § 1158), and most asylum seekers come to the United States in hope of better employment, education, and the possibility of being reunited with their families. How does a judge decide who is allowed to stay and who is not, when many times individuals do not have the evidence they need to support their claims?

The history of granting asylum goes all the way back to the days of pre-Christian Greece, when it was known as an “ancient, decent, and civilized tradition” that was divinely sanctioned by Zeus. This response to a refugee bodes well in an ideal world, yet by today’s standards some, like Andrew Bolt, feel otherwise – the “asylum seeker” could be replaced with “in truth, people after a richer life” (Minas 2010), that in fact is hitting the taxpayer with staggering bills.

In addition, while society is protecting the asylum seekers, who is going to protect us from them? In the 1940s, the United Nations created a convention listing rights and protections that countries should offer to asylum seekers, including a strict review process. More than 80% of applicants are denied because of these rules (TRAC Immigration, Asylum Law 2011). Asylum decisions in the United States are made by a group of 200+ Immigration Judges (TRAC Immigration, Immigration Judges 2011), and even before 9/11 a connection to terrorism made the applicant ineligible for asylum and subject to deportation. Because the Executive Office for Immigration Review (EOIR) is the administrative body of the Justice Department which oversees the immigration courts, with a motto of [*83] “Equal Justice Under the Law” (a phrase that is above the Supreme Court’s entrance), many immigration attorneys are finding fault with the system, claiming misconduct (most notable Attorney General Alberto Gonzales (Ryan 2006)) and requesting reviews of immigration courts across the United States. When first hit with this accusation of misconduct, the EOIR would not comment, citing a “strict no-interview policy”(TRAC Immigration, Immigration Judges), causing dismay among conservatives, and also leading to a request for “immigration reform.” This was envisioned in the Dream Act, which was most recently rejected on December 18, 2010 by the Senate (Bolton 2010). Besides, what does “asylum seekers” have to do with illegal immigrants who are not refugees? How relevant is the 1951 Refugee Convention when looking at domestic issues? And how do regional judicial systems fare when compared to the European Union when looking at international refugee law?

KHRUSHCHEV’S COLD SUMMER: GULAG RETURNEES, CRIME, AND THE FATE OF REFORM AFTER STALIN

by Miriam Dobson. Ithaca, N.Y.: Cornell University Press, 2009. 280pp. Cloth. $45.00. ISBN: 9780801447570.

Reviewed by Matthew Light, Centre of Criminology, The University of Toronto. Email: matthew.light [at] utoronto.ca.

pp.78-81

The title of this important study is drawn from a movie made in the final years of the Soviet Union, THE COLD SUMMER OF 1953, a fictional story which recounts the travails of a group of prisoners released from the Soviet prison camp system, known as the Gulag, as a result of a major amnesty that was implemented following the death of the country’s tyrannical ruler, Joseph Stalin. The movie’s premise reflects a remarkable feature of Soviet history in the period: the partial dismantling of the Gulag. Over the remaining years of the 1950s, under the rule of Stalin’s successor, Nikita Khrushchev, the total number of prisoners fell rapidly, and in 1960, the Gulag’s population reached a low of 550,000. This number represents the lowest such figure since 1935, and only one fifth of the figure at the time of Stalin’s death (pp.109, 154). This 80 percent decline resulted from two factors: first, some four million persons were actually released from prison camps; and second, new admissions to the camps also declined, as Soviet criminal justice policy tried to emphasize non-carceral measures for dealing with crime. Yet, in the next two years, the decline in the Gulag population abruptly reversed itself, and the number of prisoners rose to almost a million in 1962 (p.185). Miriam Dobson’s admirable study, KHRUSHCHEV’S COLD SUMMER: GULAG RETURNEES, CRIME, AND THE FATE OF REFORM AFTER STALIN, both explains the politics that led to criminal justice policy changes, and recounts the human story behind the figures through details about the life experiences of released prisoners. The book holds obvious interest to students of Soviet political history interested in the transition from Stalin. It also deserves to be read by scholars who are interested in understanding the causes of punitiveness in criminal justice policy.

KHRUSHCHEV’S COLD SUMMER can be read as part of a new wave of scholarship on Stalinist repression that examines the fate of the great masses of ordinary and obscure people who were swept into the Gulag or executed during Stalin’s rule, rather than looking at the trials of a handful of prominent political figures and intellectuals. Some of those sent to the Gulag or summarily executed had committed ordinary crimes, others had committed explicitly political offenses, and still others simply fell into social categories that the Soviet government viewed as its enemies, notably the prosperous peasants known in Soviet political parlance as kulaks. In some respects, Dobson’s book could be viewed as the companion to another recent study, Paul Hagenloh’s STALIN’S POLICE, which examines the gradual conflation of ordinary and political crime in Soviet criminal justice policy, which led to the rapid expansion [*79] of the Gulag and a wave of mass executions in the late 1930s (Hagenloh 2009). Dobson, in contrast, examines the aftermath of Stalin’s rule, and in particular Khruschev’s attempt to undo the most odious aspects of Stalin’s policies without destabilizing the entire Soviet regime.

In the context of criminal justice, Khrushchev’s program of “destalinization” involved several related components. First, he wanted to distance the Soviet government from Stalin’s misdeeds, such as mass killings or the imprisonment of opponents of Stalin. Both as a matter of political expediency and probably of his own conscience, Khrushchev understood that there would have to be a major break with Stalinist policies, and that this would entail mass release of prisoners from the Gulag. Within certain limits, such former prisoners would even be permitted to express publicly their grief and anger at their mistreatment, and the press and government would take note. For the future, Khrushchev also wanted to reestablish the distinction between political and non-political crime that Stalin had systematically undermined, with such horrific results. At a conceptual level, this meant reinterpreting crime as a social problem, rather than (as in the Stalinist view) a form of war against the state. Criminals would henceforth be seen not as “enemies of the people” who needed to be destroyed, but erring fellow citizens who needed to be corrected (p.96). At the policy level, Khrushchev publicly and repeatedly called for a renewed emphasis on “socialist legality,” which meant a break with the extra-judicial imposition of punishment by secret police tribunals, which had been a characteristic feature of the Stalinist Terror; in future, criminal justice would be administered by professionals in accordance with established procedures (p.102). In addition, methods of punishment were to move away from the extreme punitiveness of Stalin’s methods and would instead feature shorter terms of incarceration and alternatives to incarceration.