Author: Peter McCormick


Book Review: Robertson’s The Judge as Political Theorist

David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press, 2010) 432 pages.

The sub-title of this book should really be “Constitutional Review in the Rest of the World” because its basic premise is that we can learn a great deal about contemporary judicial review by leaving the United States out and looking at what everybody else is doing.  This is a counter-intuitive gambit — if only because they have been in the game considerably longer than anyone else, American scholars have developed a powerful arsenal of research techniques, and their literature has worked through a series of critical issues with rigor and panache.  But that is precisely Robertson’s concern; Americans have developed a particular way of framing the discussion, and have organized themselves around some very specific problematics, but these are not necessarily the frame or the problematic at the heart of the practice of judicial review elsewhere.  Maybe the counter-majoritarian problem is not the first river we have to cross; perhaps an attitudinal approach to judicial votes and decisions will not open the most useful windows on what is “really” going on in the constitutional court conference room.  Robertson believes there is a different story waiting to be told, and this book introduces us to it.

The first chapter, easily the best part of the book, fully delivers on this promise.  In many countries, he suggests, a constitution is not understood as a list of discrete and separate elements, but rather as the embodiment of a pervasive core of values, such that it is the duty of the courts to make sure that those values are broadly and sympathetically applied.  This is the transformational element of modern constitutional review, and it is demonstrated by his exemplar countries, each of which underwent a critical major shift in its organization or its values, such that the constitutional mandate is as much to oversee change of a certain sort as it is to preserve a status quo.  This is clearly the case for South Africa and for the post-communist regimes of central and eastern Europe; it is arguably the case for Canada’s adoption of an entrenched Charter; it seems a little more of a stretch for him to begin the account with Germany and France.  But while one might quibble about the precise population of this zone of “constitutional review that is not simply a replay of the United States” one cannot suggest that it does not exist, and by the end of the chapter we have had a good look around.

Much of the book — five of the eight chapters, fully half of the pages — is devoted to the country specific (or, for the Eastern Europe chapter, region-specific) analysis and discussion.  They make interesting reading; but my problem is that the chapter relating to the country I know the most about (that is to say, Canada) is riddled with errors.  Some of the mistakes are rather small — discussing a set of reasons written by Justice Bertha Wilson, he casually assures us that she later became Chief Justice (she didn’t); and quoting a premier criticizing the Charter he describes him as “conservative” (he was a Liberal).  Other misstatements are more significant; for example, he cheerfully asserts that the SCC has been no more likely to divide on Charter cases than other cases, when I have spent the last twenty years writing about the exact opposite; and he clearly thinks that the only kind of division that really matters is dissent, although Canada’s “age of the Charter” has until very recently  been the age of the separate concurrence. He repeats several times that Dolphin Delivery, a 1986 case that walled common law issues off from Charter consideration, is a “real bedrock” decision that has yet to be revisited, although in fact the Supreme Court has long since repudiated it to declare explicitly that “the common law must be interpreted in a way that is consistent with Charter values” (Hill v. Church of Scientology, 1995).  Most seriously, he totally botches the description of an extremely important recent case, Chaoulli v. Quebec (2005).  He describes it as a somewhat rancorous 7-2 decision — it was actually a 3-1-3 split of a seven-judge panel.  He indicates that Deschamps wrote the leading reasons — she was the “1”, and the Supreme Court Reports do not identify any of the three sets of reasons as a judgment.  And worse yet, he quotes from Deschamps to illustrate the Court’s position on the Canadian Charter of Rights and Freedoms, although the critical and frustrating thing about this curious case is that while the other six judges split 3-3 on the question of whether the prohibition of private health insurance violates the Canadian Charter, Deschamps doesn’t mention the Canadian Charter at all but instead bases her reasons on Quebec’s completely separate provincial Charter. Note that I said “her” reasons — we are talking about Madame Justice Marie Deschamps — but Robertson uses the male pronoun throughout.  All in all, this is rather like the clock that struck thirteen — not only is it unconvincing in itself, but it casts doubt on all that went before, and makes me reluctant to lean too heavily on what he has to say in the other focused chapters.

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Book Review: Epp’s Making Rights Real

Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (University of Chicago Press; 2009), 368 pp.

It is impossible to read Charles Epp’s new book without putting it against the background of his earlier book, The Rights Revolution (1998).  That book has a well-deserved place on the “must read” list for the emergence over recent decades of a rights-based society in which the higher judiciary plays an active role.  Readers will recall his central thesis that the rights jurisprudence of national high courts is to be understood not as some kind of spontaneous top-down elitist interruption of politics-as-usual, but rather as one side of a broader phenomenon involving activist groups and grassroots organizations providing the pressure and the opportunities for judges to take action — that is to say, it is just as much a bottom-up, and therefore democratically defensible, exercise as anything else.  Using this conceptual framework, he explored the recent high court activities of several countries (U.S., Canada, Britain and India) to unfold the way that different juxtapositions and combinations of these elements could explain the varying degrees of success that rights activism had enjoyed.

This second book pursues the same idea of a rights-based society, but it does so from quite a different angle — if there were a plot-line transition screen in between them, it would not say “what happened next” but rather “meanwhile, in another corner of the building….”.  Where the first book talks about what rights look like at the grand level as articulated through high court decisions, the second considers what rights look like in practice as large professional bureaucracies interact with citizens on much more prosaic and everyday issues (such as children’s playgrounds).

The central theme of the book is the emergence of the phenomenon of “legalized accountability” (his recurrent label, which my Google search suggests that he invented) in a modern bureaucratic state.  By this, Epp means to identify a basic model in the operationalization of rights.  The first element of this model involves formal administrative policy statements stating a commitment to legal norms that identify particular rights (although these on their own can be simple window dressing with little practical impact).  The second is training and communication procedures for bureaucratic personnel that embed these rights in routine procedures, and that do so in a way that responds to learned lessons and changing circumstances.  The third is an effective system of reporting and supervision to identify problems in the policies and their regular application, dealing appropriately with the personnel or training problems that are so identified. This is a general form that has emerged in recent decades and that is becoming increasingly pervasive; it provides a conceptual check-list that can be applied to check progress in particular organizations or locations or policy fields, and the book follows through on some examples.  Although it may not be clear from the sub-title of the book (which can be read two different ways), the “legalistic state” that emerges is for him a very positive development.

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Book Review: Feigenson & Spiesel’s Law on Display

Neal Feigenson & Christina Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment (New York University Press, 2009) 252 pages.

Law has long been about words; today, increasingly it is about pictures as well.  This is the fence (or, if you prefer, the cliff) over which Neal Feigenson and Christia Spiesel want us to look, and the view is quite something.  Their warning, which could be taken as a leitmotif for the whole book, is that “pictures are different” — indeed, much more different, with an impact that is much more portentous, than might appear at first glance.

The authors begin by pointing out that “pictures in law” (their focus really is “pictures in court”) involves several critically different phenomena that need to be discussed in quite different terms.  The first, problematic but both obvious and increasingly common, is the use of videotape material as part of the package of evidence, whether these are surveillance videos, the dashboard cameras routinely  installed in police vehicles, or the product of the increasingly ubiquitous private cell phone.  The problem here is simply an extension of the age-old problem of eye-witness evidence, which is often taken far more literally and attributed much greater weight and reliability than it really deserves.  The most high-profile example so far — Scott v. Harris 127 Sup.Ct 1769 (2007), where the USSC attached an internet-accessible version of the videotape to its decision — splendid illustrates the problem, the USSC majority simply asserting that the video plainly spoke for itself.  But “speaking for itself” is precisely what videotapes cannot do, and the problems of framing, viewpoint and editing (if only with respect to start and end points) can never be overlooked.  The Court’s casualness, without even the excuse of being a crowded docket trial court, is not at all a promising start to an appropriate judicial response.

The second is the use of scientific evidence in picture form. The essential problem is that although videotape material is (or can be, or should be) largely an un-retouched representation of a physical reality, scientific evidence typically involves pictures that have been enhanced to focus on or emphasize relevant details.  Enhance them too little, and they tell judges and juries nothing; enhance them too much, and they become misleading or even dishonest, especially if the viewers underestimate the extent of the enhancement.  And all this, of course, operates in the shadow of the “CSI effect” and the high expectations of science-based examination that it inculcates, with a double risk: on the one hand, juries may punish litigants for failing to come up to the level of polished completeness that the TV show always delivers but real life often cannot; on the other hand, it may be too ready to take the science as more conclusive than it is, as a statement of simple facts rather than an informed assessment of probabilities.  A picture may be worth a thousand words, but scientific evidence in pictorial form needs to come surrounded by at least a thousand words if it is going to be assessed properly and used appropriately.

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