Rating: 
Summary: Partisanship veiled as scholarship.
Review: Judge Bork's latest book is a perfect example of the danger of partisanship disguised as scholarship. The book's thesis is easy: that judicial review around the world is on a rise and it is being used by "liberals" to force a radical social agenda on the population through judicial activism. But in examining this thesis, Bork displays nothing even approaching objective scholarship and the work has the taste of an old man disgusted with the changing society. It is clear that in Bork's perfect world we would return to the (imaginary) 1950s (minus the racism) where men went to work, women stayed home, gays stayed in the closet, and the morality of America was maintained by the state. The book starts with a chapter laying out who is to blame for the "Worldwide Rule of Judges." It's the "new class." What does this mean? Good question. Bork defines them as "cultural socialists," whatever that is, and says they are radical equalitarian (I wonder if Tom Paine or Thomas Jefferson would be included). They are the people agitating to force women out of the home, thereby destroying the family, and letting gays have greater acceptance among other things. Basically, this "new class" is the devil bent on destroying morality. Bork creates a new, cute little catch phrase meant to basically include anyone that isn't him. Another major concern is Bork's careful selection of cases to examine. He "tests" the thesis by looking at the U.S., Canada, and Israel. In doing so he carefully picks only those states which are most likely to support his argument. In modern industrial democracies, which are the only systems for the most part that maintain a legal system that is capable of such study, the general division in legal systems is between common law and civil (Roman) law structures. Judicial power is more likely to be greater in common law states because of the basic feature that the common law has for centuries vested judges with extensive powers of determining both the content and reach of the law. Civil law systems depend on the legislatures to fashion the law in a direct, clear, and detailed manner and than judges are assigned the task of enforcement only. For the most part constitutional courts in civil law countries are practical non-entities, such as in France where the court can only hear cases under extremely limited circumstances. Others don't even vest their courts with any judicial review power, leaving the legislature's will as the supreme power. In some, the judicial review power is granted but rarely, or never, used such as in Sweden or Japan. Civil Law countries are by far the norm in modern democracies with the common law states being limited to those states which were once colonies of the British Empire, such as the U.S. or Canada. Israel, which was a protectorate of Britain, also maintains a kind of hybrid common law system. In selecting these cases Bork seeks to pretend that they are representative of the world as a whole. Also, in his examinations of the test states themselves Bork is weak. The Rehnquist Court is a liberal machine, this comes as a surprise to practically everyone who can read beyond the headlines. Certainly many "liberal" decisions come out of the Court, such as the sodomy case, but just as many "conservative" decisions, displaying the same judicial activism, come out as well, they simply aren't reported as widely, yet Bork only focuses on the liberal element. Look at the 11th amendment jurisprudence of the Rehnquist Court for a perfect example of judicial activism torturing the text of the Constitution. Canada represents Bork's best case in point and his treatment is fairly close to fact (if you cut out the silly partisan language) as far as I'm aware but I'm not completely sure that Bork actually studied the cases he discusses or whether he relied on secondary sources hostile to the Charter for his information. Finally, the Israeli case is interesting but his source material is laughable. His bibliography lists 9 sources, 7 are newspaper articles and there is one general book on Israeli government and one edited book published in the early 90s on judicial power (an excellent book) that came out before most of the cases he discusses. The Israeli Court has acted with amazing activism, but it isn't actually clear the exact extent to which those decisions have had any real influence. Social scientific research suggests that the actual impact has been negligible, but Bork assumes otherwise based on his "evidence" of news articles alone. After this Bork launches into an attack on internationalization of law, mainly the tendency to cite to other courts outside of ones own state for authority. This criticism is silly for an American judge, where lawyers are taught to comb through 51 different jurisdictions for persuasive and applicable law. Where the systems are similar, citations to each other can help to fully develop a topic. They shouldn't be, and aren't, considered binding but they are persuasive authority. And as Bork himself notes, the Canadian Charter had influence from American experience and the Basic Laws of Israel were influenced by both. So it is fair to say that cross examination can be quite useful. These criticisms are by no means the end of this book's problems but they do represent the dominant ones. This subject is a fascinating one and deserves a better examination then that given by a bitter man who was once great. This review refers to the Canadian edition which was the only one available when I read this book.
Rating: 
Summary: Excellent Topic, but a little Thin
Review: On what basis does the U.S. Supreme Court decide the constitutionality of laws on abortion, homosexuality, religion, and other cultural issues? It should come as no surprise to most readers that Robert Bork - probably the most famous rejected nominee to the Supreme Court in modern times - thinks there is no basis, and that most of what is proclaimed constitutional or unconstitutional in these areas is simply made up depending on the current predilections of the justices. What might come as a surprise to some readers, however, is Bork's claim that this American legal activism, through the mechanism of judicial review, is being internationalized to a stunning degree.
While Bork says this judicial activism can now be found from Australia to Scandinavia, he looks at just three case studies outside the U.S. - international courts (which are primarily European in outlook and location, and represent the vanguard in the internationalization of law), Canada, and Israel. What he describes, however, seems to be less the result of a direct influence of U.S. courts than a syndrome to be found in similarly educated people in the Western world.
Canada, for example, in setting up its Charter of Rights and Freedoms in 1982, wanted to avoid what Bork calls "judicial imperialism" by providing some democratic controls on judicial review. It appears not to have worked as Canada's courts have challenged the intent of key provisions in the Charter with their own judgments. While Canada's judges are still less activist and absolutist in their thinking than their American counterparts, the trend is clear.
The most interesting case study in the book is Israel. According to Bork, the Jewish State's Supreme Court is easily the most powerful among democratic nations. It has "gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures." (Page 111) Surprisingly, this judicial activism is highly popular in Israel and vigorously defended by the elites.
The sections on International and U.S. courts were less interesting to me, mainly because I was already familiar with the general arguments made in them. In my opinion, Bork should have done more research on other case studies (Germany? Australia?) to support his claims. This book is only 139 pages long and has just four case studies, two of which (the U.S. and international courts) are well-covered elsewhere. This thinness is the worst aspect of the book -- it feels rushed and abbreviated. An interesting and important topic like this deserves a fuller treatment.
Rating:
Summary: Excellent Topic, but a little Thin
Review: On what basis does the U.S. Supreme Court decide the constitutionality of laws on abortion, homosexuality, religion, and other cultural issues? It should come as no surprise to most readers that Robert Bork - probably the most famous rejected nominee to the Supreme Court in modern times - thinks there is no basis, and that most of what is proclaimed constitutional or unconstitutional in these areas is simply made up depending on the current predilections of the justices. What might come as a surprise to some readers, however, is Bork's claim that this American legal activism, through the mechanism of judicial review, is being internationalized to a stunning degree. While Bork says this judicial activism can now be found from Australia to Scandinavia, he looks at just three case studies outside the U.S. - international courts (which are primarily European in outlook and location, and represent the vanguard in the internationalization of law), Canada, and Israel. What he describes, however, seems to be less the result of a direct influence of U.S. courts than a syndrome to be found in similarly educated people in the Western world. Canada, for example, in setting up its Charter of Rights and Freedoms in 1982, wanted to avoid what Bork calls "judicial imperialism" by providing some democratic controls on judicial review. It appears not to have worked as Canada's courts have challenged the intent of key provisions in the Charter with their own judgments. While Canada's judges are still less activist and absolutist in their thinking than their American counterparts, the trend is clear. The most interesting case study in book is Israel. According to Bork, the Jewish State's Supreme Court is easily the most powerful among democratic nations. It has "gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures." (Page 111) Surprisingly, this judicial activism is highly popular in Israel and vigorously defended by the elites. The sections on International and U.S. courts were less interesting to me, mainly because I was already familiar with the general arguments made in them. In my opinion, Bork should have done more research on other case studies (Germany? Australia?) to support his claims. This book is only 139 pages long and has just four case studies, two of which (the U.S. and international courts) are well-covered elsewhere. This thinness is the worst aspect of the book -- it feels rushed and abbreviated. An interesting and important topic like this deserves a fuller treatment.
Rating:
Summary: One Court, one vote.......
Review: Robert Bork's thesis is that "the rule of law has become confused with -- indeed subverted by -- by the rule of judges." This is, he contends, precisely what judidicial activism seeks to accomplish. The result, Bork argues, is minority rule, and the minority "at least for the foreseeable future" is the New Class, a group Bork describes as "overwhelmingly liberal [leftist] in its outlook." Readers, in my opinion, would do well to remember that Bork attacks judicial activism principally because it is anti-democratic. There is, he thinks, a strong tendency for activism and liberalism to arrive in the same package, but it is not inevitable. Yet, in the countries he examines -- Canada, Israel and the U.S. -- he finds a leftist judiciary usurping legislative power. More interesting, in my view, than his country-specific examples, was his discussion of the deference that Courts around the world are increasingly paying to international law, and international courts. "The major difficulty," he contends, "with international law is that it converts what are essentially problems of international morality, as defined by a particular community, into arguments about law that are largely drained of morality." The validity of Mr. Bork's central contention is difficult to evaluate. It requires finding counter-examples, or their absence, in the mass of law he has surveyed. That is beyond the scope of the ordinary citizen (not to mention this reviewer). However, assuming Bork's argument is valid, two inter-related puzzles surface. (1) Why are we not seeing more of a backlash against the "rule of judges" in democracies that have experienced judicial activism? (2) Why are Courts continually held in high esteem? Discussing the case of Israel, Bork finds "less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them." Fair enough, but why, then, do Israelis continue the charade? Bork is aware of the problem, and he correctly notes that a range of factors might contribute to the apathetic response he witnesses. The one possibility he seems not to consider is that the thesis itself is flawed; that, however it may look to him, citizens are obtaining from Courts outcomes consistent with their expectations. Of course, such an answer would still not satisfy Bork: Courts are not just about outcomes, but about processes, and activists that stray from the intent of the law they interpret are writing law, not finding it. The underlying problem may have much less to do about citizens recapturing lost ground from allegedly wayward Courts, and much more about what it means to be a citizen. Bork's lamentation may be on target: "Perhaps a preference for immediate victories is part of the spirit of our times." Perhaps citizens are weary and cynical. Perhaps "the old civics lessons," which Bork believes are still sound, are evolving in ways that differ from the past. Coming to grips with these and other such issues constitutes, at least for me, the principal reason to read and contemplate Robert Bork's case.
Rating:
Summary: One Court, one vote.......
Review: Robert Bork's thesis is that "the rule of law has become confused with -- indeed subverted by -- by the rule of judges." This is, he contends, precisely what judidicial activism seeks to accomplish. The result, Bork argues, is minority rule, and the minority "at least for the foreseeable future" is the New Class, a group Bork describes as "overwhelmingly liberal [leftist] in its outlook." Readers, in my opinion, would do well to remember that Bork attacks judicial activism principally because it is anti-democratic. There is, he thinks, a strong tendency for activism and liberalism to arrive in the same package, but it is not inevitable. Yet, in the countries he examines -- Canada, Israel and the U.S. -- he finds a leftist judiciary usurping legislative power. More interesting, in my view, than his country-specific examples, was his discussion of the deference that Courts around the world are increasingly paying to international law, and international courts. "The major difficulty," he contends, "with international law is that it converts what are essentially problems of international morality, as defined by a particular community, into arguments about law that are largely drained of morality." The validity of Mr. Bork's central contention is difficult to evaluate. It requires finding counter-examples, or their absence, in the mass of law he has surveyed. That is beyond the scope of the ordinary citizen (not to mention this reviewer). However, assuming Bork's argument is valid, two inter-related puzzles surface. (1) Why are we not seeing more of a backlash against the "rule of judges" in democracies that have experienced judicial activism? (2) Why are Courts continually held in high esteem? Discussing the case of Israel, Bork finds "less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them." Fair enough, but why, then, do Israelis continue the charade? Bork is aware of the problem, and he correctly notes that a range of factors might contribute to the apathetic response he witnesses. The one possibility he seems not to consider is that the thesis itself is flawed; that, however it may look to him, citizens are obtaining from Courts outcomes consistent with their expectations. Of course, such an answer would still not satisfy Bork: Courts are not just about outcomes, but about processes, and activists that stray from the intent of the law they interpret are writing law, not finding it. The underlying problem may have much less to do about citizens recapturing lost ground from allegedly wayward Courts, and much more about what it means to be a citizen. Bork's lamentation may be on target: "Perhaps a preference for immediate victories is part of the spirit of our times." Perhaps citizens are weary and cynical. Perhaps "the old civics lessons," which Bork believes are still sound, are evolving in ways that differ from the past. Coming to grips with these and other such issues constitutes, at least for me, the principal reason to read and contemplate Robert Bork's case.
Rating:
Summary: Shameful use of intellect
Review: Robert H. Bork is a man of powerful intellect. His intellect is exceeded by his ideology. Sadly because he, like Justice Scalia, is such a good writer he is able to make ostensibly compelling argument through the use of rhetorical device often at odds with reality, history, and honesty. The book is beneath the dignity of a man of Bork's obvious intelligence. The book is a waste of money and a waste of Borks pordigious ability.
Rating:
Summary: Raises interesting issues
Review: The best review of this book would be indirect and to quote a letter to a web site that someone sent me from Norway: "Dear Editor, Many Europeans express favor with the establishment of an International Criminal Court (ICC). The ICC, in the spirit of internationalism, would hold jurisdiction over the many different cultures, peoples, and nations of the world. Since this is the case, it is quite odd that the legal framework of the ICC is based upon European legal traditions. Surely an international body like the ICC would reflect and mirror the diverse legal traditions, values, morals, and mores found globally. In essence, the ICC, as currently established, is a New Colonialism whereby Europe would continue to exert its influence on the peoples of the world. Considering the fact that there are more Muslims on the planet than Europeans, the "internationalism" of the ICC would be more clearly reflected if, for example, its framework was based upon the tenets of Sharia law rather than European law. The ICC could employ a council of ruling clerics to apply Sharia punishments for crimes found committed - punishments such as stoning, amputation, and beheading. Europeans, if they are truly interested in diversity and internationalism would have to allow
the ICC to reflect non-European legal traditions - Sharia law being one of them. As of now, the framework of the ICC reflects none of the diversity and "internationalism" that Europeans appear to cherish. Instead, the ICC reflects a jingoistic, colonial mindset which may in reality be more in tune with what Europeans want. Indeed, the ICC would only prove to the
world that Europeans are not interested in the values and practices of other world cultures, but are instead solely interested in extending European culture throughout the world - in many places that do not want it. Indeed, the peoples of the world will be better off the sooner this nefariousness on the part of Europe is exposed and thwarted." Now does tht not touch the nub of the issue Bork raises?
Rating:
Summary: Insight from a good teacher
Review: The book offer a very convincing, if frightening, view of modern jurisprudence (sic, lack of "prudence"). Bob Bork completes the one-two-three punch by comparing the court activists in the U.S., Canada, and Israel. He traces the major activists back to their dirty, little holes. He accurately shows how judges, from many parts of the World, have replaced the rule of law with the rule of judges. Interestingly, the U.S., while in dire condition, is not the worst. Israel takes the anti-democratic cake. In Israel, the Supreme Court has made itself the arbiter of all laws and state policies, including defense policy and procedures. The Prime Minister and Knesset are a secondary part of government. The common tread holding judges in such absolute, non checkable power is the vociferous public drubbing anyone takes who questions whether a judge's ruling is really law. This has led to most important "law" being made by unelected. It has dissipated the moral calculations of the legislature in favor of the moral calculations of the judges. They have become so bold as to ignore the black letter of the statute in favor of what they believe a "smart" legislature would or should have wanted to enact. Bob Bork says that there are four approaches for correcting the fast slide into dictatorship. The first two deal with using the mechanisms in the Constitution to reign in the courts. But, since the courts don't really pay attention to the Constitution, he doesn't think these have any hope of success. I momentarily forget his third approach - equally short on probability of success. He says the best of the four is mere holding action: Attempt to change the law culture to spurn judicial activism in favor of (Justice Scalia's term) textual-ism. Frankly, Bork holds little hope for success for any restoration of the rule of law (verses rule of judges). Because, eventually, a judge will issue an activist ruling racketing the law in the direction of the minority, New Class. I rate the book 4-stars because the material's presentation is a bit dry. But, you have to love this guy: After decades of service to his country, he continues to plug away in the service of ordered liberty. Thanks Mr. Bork for taking the time to teach about the law.
Rating: 
Summary: You can judge this book by its cover!
Review: The cover of this book ought to have talked me out of purchasing it. The contents talked me out of adding it to my library - too late. Consider the blurb (which Judge Bork did not write): "While the actions of legislatures in America and other democarcies are closely watched and hotly debated, the power of judges is largely unchecked and unexamined. For two centuries, judges have steadily expanded their authority, reaching far beyond their traditional responsibilities." If the publisher or the marketing staff got such nonsense from the book (which they might have by reading it), any educated reader must put the book back on the shelf and save his money. The power of judges has been neither examined nor checked? Judge Bork, President Nixon, Nathan Glazer, and a host of congresspeople and other lawyers opposed to BROWN v. BOARD or ROE v. WADE or Warren Court activism or Rehnquist Court activism have bellowed about judicial activism for half a century! Judge Bork embarrassed himself with a book on the subject, THE TEMPTING OF AMERICA, that actual experts on constitutional law panned. The power of judges - both in the United States and abroad - has been examined by many commentators both in the United States and abroad. The power of judges to enforce their views is most assuredly checked: Massive Resistance; abortion regulations and the Hyde Amendment; continuing school prayer in public schools and other public venues; tort reforms; mandatory sentencing; wars over appointments to U. S. courts; the ousting of Rose Bird and two other California Justices; and other measures too numerous to list have circumscribed judges, lawyers, courts, and laws. "For two centuries, judges have steadily expanded their authority, reaching far beyond their traditional responsibilities." Say what? The expansion of judicial authority has hardly been steady, as even passing familiarity with any judicial doctrines would disclose to a second-day student at any law school. I doubt that one could even argue that the expansion of judicial power has been monotonic. And what traditional responsibilities have judges reached beyond? Have they assisted African Americans? women? the poor? Oh no! Thank heaven that segregationists, sexists, and other bigots have Judge Bork's assistance. Through most of the history of the United States, judges and courts and the law have been profoundly conservative. They have conserved advantages and privileges for overdogs who could employ counsel and disabilities for underdogs who had no hired legal guns. I am hardly enthused about many of the developments that Judge Bork laments, but I am not so blinded by the conservatism we share as to complain about "judicial imperialism" whenever working folk or victims start to catch some breaks from a very few judges. This book is not even worthy of assignment to high school students to highlight (as another reviewer already noted) the perils of political polemics masquerading as scholarly studies. The editorial page of the NEW YORK TRIBUNE opined that the DRED SCOTT decision was entitled to about as much moral sway as the majority of a Washington saloon. In a like manner, I found in COERCING VIRTUE as much expertise and reason as on the average radio talk show. Thus, COERCING VIRTUE continues the lousy research and illogical argumentation of Bork's previous work ever since a majority of the Senate observed that he was unworthy of the U. S. Supreme Court.
Rating:
Summary: A little disappointing, but on whole a good book
Review: This book is sketchy on the details of the history of judicial activism, focusing more on recent outrages in the United States, Canada, and Israel. Furthermore, it is clear the publisher is indeed THE publishing arm of the think-tank Robert Bork is a fellow at. Clear because it contains some arcane language and argumentation that only a person initiated into the higher eschelons of the legal profession could hope to understand. A mass-market publisher would probably not let the arcane language remain. Therefore, those seeking a basic and introductory work into the phenomenoh of judicial activism might wish to pass this volume by, for now. But for those seeking some red meat, or not afraid to start off in the deep end, this is a good book. Exactly what will you find in this book? A nice introduction and rough outline of the history of judicial activism, and then a satisfactorily thorough examination of judicial activism in the countries mentioned above, within the last thirty years. Also, Bork does a good job of explaining the rise of so- called "international constitutional common law". This last part (though it comes first in the book) is indispensable reading for any American concerned with preserving the American way of life and his own personal freedom. There you will read about an important international court that asserts that they have authority over you and every other human being on the planet. One final "word to the wise". This book, minus the notes and index is only 139 pages long.
|
