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). To sum up, in the 1980s and 1990s, the regulatory space, once occupied almost exclusively by states and their law, was now ﬁlled by NGOs, business self-regulation, and a variety of third-party surrogate regulators who, to a considerable extent, decentered the role of the state. The power and capacity of governments to shape environmental outcomes directly were further diminished by their limited knowledge, capacities, and resources to regulate increasingly complex environmental problems. Moreover, although debates over deregulation and regulation had largely faded, there was little political support for stronger regulatory intervention, or the resources necessary to extend its ambit (Hampton 2005). As we see below, these trends have continued unabated in subsequent years, but what makes the next series of developments distinctive is that they have required levels of ﬂexibility, facilitation, collaboration, and information generation that would have been inconceivable some years before (De Burca et al. 2013, Holley et al. 2012). RECENT TRENDS AND NEW CHALLENGES: PLURALISM, COMPLIANCE TECHNOLOGY, AND NEW GOVERNANCE In what follows, we chart three developments that have emerged over the past decade: regulatory pluralism, next-generation technology and compliance, and the NEG. For each development, we brieﬂy summarize the main ideas, identify emerging examples in practice, raise critiques, and suggest future issues that will require attention from the ﬁeld. Toward Regulatory Pluralism? One concept that resonated with what domestic practitioners were seeking or in some cases already designing (but in the absence of a broader theoretical framework) was that of regulatory pluralism, or “Smart Regulation.” This latter term has been used to refer to an emerging form of regulation that seeks to harness not just governments but also business and third parties to provide policy alternatives that include, but often go beyond, direct regulation. The central normative argument of Smart Regulation is that, in the majority of circumstances, multiple rather than single policy instruments, and a broader range of regulatory actors, can and should be used to produce better regulation than single-instrument or single-party approaches. This will allow the implementation of complementary combinations of instruments and participants tailored to meet the imperatives of speciﬁc environmental issues and will result in a more ﬂexible, efﬁcient, and effective approach to environmental regulation than has so far been adopted in most circumstances (Gunningham et al. 1998). Smart Regulation suggests that we should focus our attention on how behavior can be shaped by a diversity of unconventional but (in a broad sense) regulatory mechanisms, such as the inﬂuence of international standards, trading partners and the supply chain, commercial institutions and ﬁnancial markets, peer pressure and self-regulation through industry associations, internal environmental management systems and culture, and civil society in a myriad of different forms. In particular, Smart Regulation invites policy makers to investigate how legislative structures and public agencies may harness institutions and resources residing outside the public sector to 280 Gunningham· Holley further policy objectives in speciﬁc concrete situations. This approach can be seen as part of the broader transition in the role of governments across the globe: from rowing the boat to steering it or choosing to regulate at a distance by acting as facilitators of self- and coregulation rather than regulating directly (Osborne & Gaebler 1993). Thus, for Smart Regulation, environmental policy making involves government harnessing the capacities of markets, civil society, and other institutions to accomplish its policy goals more effectively, with greater social acceptance, and at less cost to the state (Gunningham et al. 1998). And because parties and instruments interact with each other and with state regulation in a variety of ways, careful regulatory design will be necessary to ensure that pluralistic policy instruments are mutually reinforcing, rather than being duplicative or, worse, conﬂicting (Gunningham et al. 1998). In short, Smart Regulation argues that policy makers should take advantage of several largely unrecognized opportunities, strategies, and techniques for achieving efﬁcient and effective environmental policy, including by designing complementary instrument mixes rather than relying on single-instrument approaches; by preferring less-interventionist measures to the extent that this is practicable; by escalating response up an instrument pyramid (using not only government but also business and third parties), so as to build in regulatory responsiveness and dependability of outcomes; by empowering third parties (both commercial and noncommercial) to act as surrogate regulators; and by maximizing opportunities for win-win outcomes (expanding the boundaries within which such opportunities are available and encouraging business to go beyond compliance with existing legal requirements) (Gunningham et al. 1998). A substantial number of policy instruments of the past decade are consistent with the precepts of Smart Regulation, including light-handed initiatives, meta-regulation, and information regulation, which seek to embed environmental values and processes within the corporate culture in such a
way that it becomes self-regulating, relying upon oversight from local communities and perhaps thirdparty auditors to supplement or even replace direct regulation. Businesses too report preferring regulatory frameworks that involve an effective and coordinated mix of instruments for a given sector (Taylor et al. 2015). Despite the appeal of Smart Regulation, some commentators have argued it suffers from being too vague (Eccles & Pointing 2013), identifying possible tools in theory, but falling short of offering practical skills in selecting and implementing instrument mixes in practice (Taylor et al. 2012). Addressing such concerns can only come through empirical research, and as we see below, this is fertile ground for tilling. The regulatory instruments, actors, and approaches available to the state have become more rather than less plural, as new technologies are employed to enhance the efﬁciency and reach of regulatory tools and as government and nongovernment actors experiment with more collaborative and participatory NEG approaches. As we argue, these developments will necessitate a better understanding of how both government and nongovernment actors can orchestrate law, regulation, and governance approaches in practice to both maximize synergies and minimize conﬂicts (Howlett 2014, p. 194). NEXT-GENERATION TECHNOLOGY AND COMPLIANCE As we have seen above, since the very inception of environmental law, regulatory agencies have confronted the question of how they can best achieve environmental outcomes within their resource constraints. This has become a particularly vexing enquiry, as public budgets continue to shrink without a commensurate diminishment of regulatory responsibilities (Holley & Sinclair 2016, p. 52). Yet in recent years rapid advancements in technology (e.g., cost reductions in sensors) and global information infrastructure (e.g., the Internet) have allowed the easy and speedy capture and www.annualreviews.org • Law, Regulation, and Governance 281 diffusion of information central to the regulatory enterprise (De Capitani di Vimercati et al. 2013, p. 835). Satellites, remote sensing, drones, real-time monitoring and reporting, mobile handheld monitoring devices, novel civic data collection, and developments in data analytics and big data all are increasingly commonplace (Biber 2011; Holley & Sinclair 2016; Wylie et al. 2014, p. 116). Such technologies promise to reconcile the political realities of funding constraints with the long-held desire to achieve efﬁcient command and control for both leaders and laggards (and thus to redress the limitations of earlier, more selective light-handed reforms). New technologies that enable real-time air or water monitoring can do this by making regulators’ core business cheaper and faster, at least compared with inspectoral “boots on the ground” (Hindin 2015). Better data sharing can also contribute to the adoption of more efﬁcient regulation, planning, and permitting, which in turn can enhance the extent of compliance and therefore reduce the need for traditional enforcement (Holley & Sinclair 2016; Markell & Glicksman 2014, pp. 69–70). A leading example of this use of technology is the US EPA’s Next Generation Compliance initiative, through which the agency hopes to leverage information and technology to streamline enforcement procedures and strengthen compliance with federal environmental laws (Paddock & Wentz 2014, US EPA 2015b). The initiative involves ﬁve core interconnected components: design regulations and permits that are easier to implement; advanced emissions/pollutant detection technology (e.g., new monitoring camera technology to visualize previously invisible air emissions like volatile organic compounds); electronic reporting; expansion of transparency by making information more accessible to the public; and development and use of innovative enforcement approaches (e.g., data analytics and targeting). Consistent with the precepts of Smart Regulation, improvements in monitoring and information technology can also impact the effectiveness of surrogate regulators. Handheld sensors or monitors for citizen data collection (or citizen science) and smartphone apps for sharing environmental data can assist in putting greater pressure on business’s social licenses as well as enhance government accountability (see, e.g., PM2.5 in China). As Holley & Sinclair’s (2014) study of realtime water monitoring and data diffusion in New Zealand also suggests, technology can improve coregulation by increase transparency among regulated peers, enhancing opportunities for selfregulation, and enabling a nimbler system overall that is capable of preventing further breaches by responding as they happen in real time. New technology, such as telemetry, remote sensing, and satellite monitoring, may also enhance the extension and efﬁciency of direct law when addressing more complex problems. For example, opportunities for better international enforcement across national boundaries can be increased through greater data-sharing networks and global monitoring systems (INECE 2015, Spapens et al. 2016). New monitoring technologies can also help reveal the collective impact of small, diffuse, or remote sources of pollution and degradation that otherwise ignore geographic boundaries and remain hidden (Hindin
2015). This has enabled the consolidation of command and control to address a range of complex challenges, including biodiversity, native vegetation, and waterquantity problems (Purdy 2011), either as a stand-alone approach (Bartel 2005) or integrated with cap-and-trade schemes (Holley & Sinclair 2012). Ultimately, these new technologies and compliance initiatives remain at an early stage, and whether they will deliver on their promise is an open question (De Capitani di Vimercati et al. 2013, Holley & Sinclair 2016). Novel monitoring and information technologies are giving rise to new concerns around data privacy, data security, and regulatory reach (De Capitani di Vimercati et al. 2013). Such concerns can produce anxiety among regulated actors (McHenry 2013, p. 834). As Purdy’s (2011) study of satellite technology in vegetation management illustrates, regulated communities can often be unwilling to accept automatic-monitoring systems, like that which exists for speed cameras. Although regulated actors can beneﬁt from new technologies through better 282 Gunningham· Holley management in the long term or reduced delays caused by inspector visits, there may be increased costs in the short term (e.g., purchasing new technologies) (Holley & Sinclair 2014; 2016, p. 53; Purdy 2011). Such concerns risk generating political opposition, fueling adversarialism, and fostering resistance from regulated individuals and ﬁrms, all of which can weaken the effectiveness of new technology initiatives like Next Generation Compliance (Markell & Glicksman 2015, p. 10; see generally Bardach & Kagan 2002). Although such challenges are likely to be signiﬁcant, and require greater attention to issues of engagement and buy-in, if done well, new technologies may hold the promise of enabling better environmental outcomes, higher compliance rates, and higher return on investments (Holley & Sinclair 2016; Markell & Glicksman 2015; Metzenbaum 2015, p. 18). New Environmental Governance Although new technology offers promise in enhancing the efﬁciency and effectiveness of traditional environmental law, an important emerging and very different style of societal steering occurring in the ﬁeld is that which is increasingly referred to as the New Environmental Governance, or NEG. The NEG enterprise involves collaboration between a diversity of private, public, and nongovernment stakeholders who, acting together toward commonly agreed upon (or mutually negotiated) goals, hope to achieve far more collectively than they could individually (Holley et al. 2012, p. 4). This form of governance relies heavily upon participatory dialogue and deliberation, ﬂexibility (rather than uniformity), inclusiveness, knowledge generation, and processes of learning, transparency, and institutionalized consensus-building practices (see, generally, De Burca & Scott 2006; Karkkainen 2004b; Trubek & Trubek 2007, p. 542). Although sometimes described as falling within the broader new legal realism movement (Nourse & Shaffer 2014), there is no agreement on a deﬁnitive NEG model per se (Van der Heijden 2013). Rather, a variety of terms and theories have been developed to describe and prescribe how NEG does and should operate. These include experimentalism (De Burca et al. 2013), post-sovereign environmental governance (Karkkainen 2004a), modular environmental regulation (Freeman & Farber 2005), private environmental governance (Vandenbergh 2013), and adaptive governance (Chafﬁn et al. 2014, Craig & Ruhl 2014). These perspectives vary in their emphasis, encompass different schools of thought, and apply diverse institutional and political approaches to a range of environmental problems. Experimentalism, for example, draws inspiration from pragmatism (Dewey 1946), whereas adaptive governance draws more on social ecological systems and adaptive management (Berkes & Folke 1998, Holling 1978). However, these theories are bound by several common characteristics, including ﬂexibility, participation, collaboration, learning, and adaptation. These common features have led a burgeoning group of scholars to collectively refer to these approaches using what Von der Porten & de Lo¨e (2013, p. 149) described as the “catchall term” of NEG (De Burca & Scott 2006, Holley 2010, Karkkainen 2004b). Domestic approaches that fall within this category typically involve a variety of nonstate actors assuming administrative, regulatory, managerial, and mediating functions often to address some of the more complex and challenging environmental problems (Ostrom 2010, p. 643). Prominent examples include the establishment of 56 regional natural resource management bodies in Australia (Gunningham
2009a, Holley 2010), collaborative approaches to water management in New Zealand (Holley & Gunningham 2011), and endeavors of multiple agencies and stakeholders addressing competing demands on water resources in the Bay Delta in the United States (Freeman & Farber 2005, Holley 2015). NEG has also been identiﬁed internationally (and in the interaction between international and domestic levels) with the emergence of open-ended standards, multilevel networks, and www.annualreviews.org • Law, Regulation, and Governance 283 deliberation upon the internalization of international norms, as well as signiﬁcant decisions and implementation roles being taken by nonstate actors (Cottrell & Trubek 2012, p. 362). This has included the EU’s Water Framework Directive (Trubek & Trubek 2007) and Forest Law Enforcement Governance and Trade initiative (Overdevest & Zeitlin 2014), the Partnership for the Development of Environmental Law in Africa (Kimani 2010), the Inter-American Tropical Tuna Commission (De Burca et al. 2013), and management of the Great Lakes in the United States/Canada (Karkkainen 2004a). Certainly, the shift to NEG has been shaped to some extent by speciﬁc contexts and inﬂuences (De Burca 2010), but generally speaking it has come about because of the perceived capacity of these more collaborative and adaptive approaches to deliver beneﬁts in circumstances where traditional approaches cannot (Holley et al. 2012, p. 4). For example, prescriptive legal standards, as well as some market-based instruments, depend upon a degree of centralized knowledge (e.g., to set suitable standards, prices, or caps) that is often not available (Holley et al. 2012, p. 4). In contrast, the sort of collaborative and participatory approaches contemplated by NEG are said to lead to problem solving that is inclusive of local circumstances and able to capitalize on the unique local and other knowledges and capacities of multiple public and private actors. NEG is also thought to copebetterwiththedynamism,uncertainty,andcomplexityofenvironmentalproblemsthaneither traditional regulation (which can easily ossify, by freezing standards at a particular point in time or by adopting a one-size-ﬁts-all approach) or other market-based approaches (where signiﬁcant posthoc program corrections to pollution levels and permits set from the center prevent new entrants or become very difﬁcult without undermining the security of ownership rights on which the market itself depends) (Holley et al. 2012, p. 5; Sabel et al. 1999). Instead, NEG ideals, be they adaptive management, pragmatism, or other forms of knowledge generation, enable governance processes that learn more easily from changing circumstances on the ground (and can also promote accountability via peer review) (Holley et al. 2012, p. 5; Lobel 2004, p. 502; Orts 1995; Sabel et al. 1999, p. 3). Despite the promise of these and other beneﬁts, it is uncertain whether they can be achieved in practice (Driessen et al. 2012). NEG has faced a litany of criticisms, including claims that it can deepen subordination of already marginalized communities (Lee 2013, p. 406), succumb to stakeholder bias and rent seeking (Nourse & Shaffer 2014), struggle to sustain participation after initial bursts of enthusiasm (Holley et al. 2012), and generate gaps in accountability because of its adaptive and ﬂexible approach (Biber 2011, p. 81). Considerable empirical research is still required to resolve these arguments about the impacts of NEG, as it is the principles and practical conditions that will enable successful NEG experiments to be replicated (Holley et al. 2012, p. 9; Karkkainen 2006). One particularly fruitful area of research regarding these issues has focused on whether and how NEG interacts with earlier phases of environmental law. Although a range of possible relationships have been identiﬁed (see, e.g., De Burca & Scott 2006, Holley 2015, Shulz & Lueck 2015), at least some of NEG’s impact appears to depend on the presence or threat of more conventional forms of law, regulation, and the state (Carrigan & Coglianese 2011, pp. 119–20; De Burca et al. 2013; Gunningham 2009b). The few studies that have attempted to grapple with NEG’s performance in practice increasingly suggest that much depends on speciﬁc contexts—the problem, ﬁrms, and community involved (Van der Heijden
2015). In short, it is no panacea to the globe’s continuing environmental problems (as perhaps it was once thought to be) (De Burca et al. 2013, Holley et al. 2012). This is an important realization as we begin to confront new global challenges in the era of the Anthropocene. This new classiﬁcation of the modern planetary epoch signiﬁes a new role for humankind: from a species that had to adapt to changes in its natural environment to one that has become a driving force in the planetary system (Biermann 2014, p. 57). Such developments 284 Gunningham· Holley may call for increased attention not only to making NEG work in practice but also to new ways of governing global problems and systems (see, e.g., Biermann 2014, Pattberg & Zelli 2016, Stevenson & Dryzek 2014). This is likely to be particularly challenging because, despite the growth of NEG, the precise response to the era of the Anthropocene remains contested and its elements insufﬁciently understood (Biermann & Pattberg 2012, p. ix). In this regard, closely related theories of what are variously termed Earth System governance (Biermann 2014), global environmental governance (Galaz 2014), and climate change governance (Stevenson & Dryzek 2014) have emerged as rapidly proliferating literatures. Although varied in their approaches, a major concern of these emerging theories is how to overcome the fragmented nature of traditional domestic and international law (Galaz 2014), where the capacities of a single state are likely to be exceeded (Rayner 2015, p. 252) and webs, networks, and partnerships within and between state and nonstate entities at all levels become increasingly commonplace (Gunningham 2012, p. 133). To this extent, their common challenge will be to understand the orchestration of the increasingly complex legal, regulatory, and governance approaches and actors at local, national, and international levels, which is an issue to which we now turn (Pattberg & Widerberg 2015, pp. 689, 693). Discussion: Orchestration of Law, Regulation, and Governance? The developments raised immediately above give rise to a fundamental question in the ﬁeld: What is the relationship between the various points on the spectrum—new governance, regulation, and law? Much of the late 1990s and early 2000s saw signiﬁcant exploration of whether and when it was essential for the state to fulﬁll certain functions and when the state could be effectively “decentered,” becoming simply one of several actors involved in governance but no longer privileged in terms of power and inﬂuence (Mol 2007). This exploration viewed environmental initiatives of the past four decades primarily as involving discrete shifts from law to regulation and governance. Common refrains of dichotomous possibilities included “market versus state,” “hierarchy versus collaboration,” and “the shift from government to governance” (Howlett 2014, p. 189; Jordan et al. 2015; see e.g., Fisher et al. 2013, p. 502). Although this view of clean breaks from law to regulation, and then to new governance, generated much scholarship, many now view this claim as overstated (Howlett 2014, Jordan et al. 2015). This is particularly true at the domestic level, where substantial pockets of command-and-control regulation are alive and well (and indeed beginning to reform delivery through new technologies, as discussed above; see also De Burca & Scott 2006, Holley 2015). All the major initiatives charted above (regulatory ﬂexibility, meta-regulation and regulatory pluralism, and even to some extent new governance) seek to regulate at a distance, with the domestic state acting as facilitator of self- and coregulation and playing important oversight roles rather than regulating directly. Certainly, they evidence an important shift in regulatory approach and in the roles of the state, but they have not resulted in its decentering. Although governments may take a light touch or steer at a distance, in many cases government has the task of deﬁning what regulation and new governance are to be (Howlett 2014, p. 190). Moreover, the broader lesson from the past four decades is that many less-interventionist strategies appear far less likely to succeed if they are not underpinned by direct law (Gunningham 2009b). For example, under light-handed approaches, some enterprises may be tempted to develop paper management systems and tokenistic responses, which independent third-party auditors may fail to detect (O’Rourke 2000). However, the threat of sanctions if they fail to deliver on performance targets set by the state will substantially reduce the risk of free
-riding. Market-based instruments, such as tradable emission or water rights, depend for their fairness and effectiveness www.annualreviews.org • Law, Regulation, and Governance 285 on direct enforcement (Holley & Sinclair 2012). Further, it has not been a matter of new governance “eclipsing law and government”; rather, the former appears to work best when in hybrid relationships with the latter (Tollefson et al. 2012, p. 3). All this suggests that the ﬁeld has strayed a substantial way from the classic precepts of neoliberalism—the hollowing out of the state, privatization, and deregulation—and that a more accurate term to describe governments’ behavior may be regulatory capitalism. This implies using markets as regulatory mechanisms (rather than seeing them as the antithesis of regulation), the growth of a plethora of nonstate regulators and of networks of governance, the expansion rather than the retreat of regulation (albeit in new forms), and “hybridity between the privatization of the public and the publicization of the private” (Braithwaite 2008, p. 8; Levi-Faur 2005). Regulatory capitalism is ultimately a plea for pragmatism and pluralism. None of the instruments or perspectives examined above work well in relation to all sectors, problems, contexts, or enterprise types. Each has weaknesses as well as strengths, and none can be applied as an effective stand-alone approach across the environmental spectrum. Such a conclusion suggests the value of designing complementary combinations of instruments, approaches, and actors, compensating for the weaknesses of each with the strengths of others, while avoiding combinations deemed to be counterproductive, or at least duplicative. This indeed was the central message of Smart Regulation, albeit from a regulator/state-centric position. In the modern era, thinking will need to go beyond a concern with regulators and states and instead situate instrument choice alongside broader contextual factors, changing patterns of law, regulation, and governance and the now-increased role of nonstate actors in steering and rowing more broadly ( Jordan et al. 2013, p. 163). Even in the international arena, where responses to the Anthropocene are still evolving (Gill 2015), a similar core concern with balancing and rebalancing different modes and dimensions of law, regulation, and governance to address problems will be needed (Rayner 2015). A good example of this is the current response to climate change, which will require coordinating not only marketbased instruments but also direct regulation, as well as NEG approaches (see generally Dryzek et al. 2011). Some scholars have described these issues as challenges of orchestration, where one actor (government, nongovernment, or others) enlists an intermediary actor or set of actors to govern a third actor or set of actors in line with the orchestrator’s goals (Abbott 2015, p. 487). Such orchestration challenges at both the international and domestic level remain in their infancy, and further research will be needed on causal factors of orchestration choices and the effects and effectiveness of particular choices (Abbott 2015, p. 493). This conception is consciously “nodal” ( Johnston & Shearing 2003) and raises questions of who orchestrates and how they do so as issues that cannot be determined a priori but require careful exploration through empirical, and context-speciﬁc, research (Holley & Shearing 2016, Johnston & Shearing 2003). And crucial to the empirical enquiries that the spectrum of law, regulation, and governance has generated are issues of how different actors relate to one another and how, and when, they enroll the capacities and resources of others as they seek to realize their objectives (Holley & Shearing 2016; Jordan et al. 2015, p. 980). By examining the complexity of the orchestration processes, new avenues for explanatory and normative thinking can be opened up, including how different approaches to law, regulation, and governance (and the instruments and actors they wield) should be orchestrated; in what ways instruments and approaches can stimulate new technologies and data-sharing networks to achieve better regulation (Macey 2013, p. 1685); and, perhaps most importantly, who should do the orchestrating (Howlett 2014, Steurer 2013). The answers are likely to vary with different problems and contexts ( Jordan et al. 2013, pp. 168–69). Although societal steering without a signiﬁcant state role may be viable in some contexts, states’ unique resources and capacities may 286 Gunningham· Holley CONCLUSION This article has analyzed more than four decades of environmental law, regulation, and governance in various Anglo-Saxon and global jurisdictions. It has shown how, after the heydays of law and command and control and the swing to economic instruments, voluntarism, and light-handed initiatives, new phases evolved—their most important
manifestations being pluralistic regulation, new technologies, and compliance and new governance. Each of the frameworks examined in this article proposes its own solutions, and each has something valuable to offer, as well as its own limitations. This leads to a plea for pragmatism and pluralism. Stepping back from the detail of these developments, we have argued that the next great challenge for environmental regulation writ large is one of orchestration: What sorts of architectures are likely to work best in terms of effectiveness, efﬁciency, and political acceptability? Unfortunately, the general answer to such questions is that it all depends. Acting on this realization will require taking advantage of the existing empirical evidence, as well as new evidence gathering, so as to resolve the so-called crisis of environmental regulation and governance and thus ensure a sustainable future. DISCLOSURE STATEMENT The authors are not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS We are very grateful for the research assistance of Genevieve Wilks. Parts of this article draw on work that originally appeared in Gunningham 2009a and Holley 2016. This research was supported under an Australian Research Council’s Discovery Early Career Researcher Award funding scheme (project number DE140101216) and an Australian Research Council’s Linkage Project funding scheme (project number LP130100967). LITERATURE CITED Abbott K. 2015. Orchestration. In Encyclopaedia of Global Environmental Governance and Politics, ed. P Pattberg, F Zelli, pp. 487–98. Cheltenham, UK: Edward Elgar Amoco/EPA Yorktown Proj. 2009. Lessons Learned and Future Steps. http://www.ﬁscher-tropsch.org/ DOE/_conf_proc/MISC/CONF-94013319/CONF-94013319,%20Tabs%2012%20-%2018%20 (pgs.%201–35).pdf www.annualreviews.org • Law, Regulation, and Governance 287 Andonova L. 2010. Public-private partnerships for the earth: politics and patterns of hybrid authority in the multilateral system global. Environ. Polit. 102:25–53 Andrade G, Rhodes J. 2012. Protected areas and local communities: an inevitable partnership toward successful conservation strategies? Ecol. Soc. 17(4):14 Bardach E, Kagan R. 2002. Going by the Book: The Problem of Regulatory Unreasonableness. Philadelphia: Temple Univ. Press Bartel R. 2005. When the heavenly gaze criminalises: satellite surveillance, land clearance regulation and the human-nature relationship. Curr. Issues Crim. Justice 16(3):322–39 Bendell J. 2000. Civil regulation: a new forum of democractic governance for the global economy. In Terms of Endearment: Business, NGOs and Sustainable Development, ed. J Bendell, pp. 239–54. London: Greenleaf Berkes F, Folke C. 1998. Linking Social and Ecological Systems. Cambridge, UK: Camb. Univ. Press Biber E. 2011. The problem of environmental monitoring. Univ. Colo. Law Rev. 83(1):1–82 Biermann F. 2014. The Anthropocene: a governance perspective. Anthropocene Rev. 1(1):57–61 Biermann F, Pattberg P, eds. 2012. Global Environmental Governance Reconsidered. Cambridge, MA: MIT Press Braithwaite J. 2008. Regulatory Capitalism: How It Works, Ideas for Making It Work Better. Cheltenham, UK: Edward Elgar Carrigan C, Coglianese. 2011. The politics of regulation: from new institutionalism to new governance. Annu. Rev. Polit. Sci. 14:107–29 Carson R. 1962. Silent Spring. Boston: Houghton Mifﬂin Chafﬁn B, Gosnell H, Cosens B. 2014. A decade of adaptive governance scholarship: synthesis and future directions. Ecol. Soc. 19(3):56 Chafﬁn B, Gunderson L. 2016. Emergence, institutionalisation and renewal: rhythms of adaptive governance in complex socio-ecological systems. J. Environ. Manag. 165:81–87 Coase RH. 1960. The problem of social cost. J. Law Econ. 3:1–44 Coglianese C, Nash J, eds. 2006. Leveraging the Private Sector: Management-Based Strategies for Improving Environmental Performance. Washington, DC: Resour. Future Cohen S. 1986. EPA: a qualiﬁed success.
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will not be known for some time, there are signs that a new wave of guilty plea research is under way. In this review, we take stock of key advances in recent research, provide an organizational structure for understanding existing work, discuss new data being applied to the area, and identify speciﬁc facets of prosecution and plea bargaining that require greater empirical attention. We think a review of this nature is timely for at least four persuasive reasons. First, guilty pleas are more common today than ever before in US history. As shown in Figure 1, the percentage of convictions from guilty pleas in US District Courts steadily increased from the early 1980s through 2014, peaking at an extraordinary 90%. The guilty plea rate for felony offenders adjudicated in large urban state courts has also increased over the past two decades, from 90% in 1990 to 97% in 2009 (Reaves 2013). Trial rates vary substantially by jurisdiction (Ulmer et al. 2010), and trials are more common for some offenses than others (Reaves 2013),2 but an upward trend clearly exists 1From Missouri v. Frye, in which Justice Kennedy was quoting work by Scott & Stuntz (1992). 2For instance, 18% of felony murder defendants but only 1–2% of felony property defendants are convicted at trial (Reaves 2013). 480 Johnson· King· Spohn 0 10 20 30 40 50 60 70 80 90 100 Guilty pleas Jury t tririalsls Jury trials Guilty pleas and jury trials among US convictions (percent) Year 1945 1950 1960 1970 1980 1990 2000 2010 1955 1965 1975 1985 1995 2005 Figure 1 Percentage of guilty pleas (red ) and jury trials (blue) among convictions in US District Courts, 1945–2014. Data through 2010 are from the Sourcebook of Criminal Justice Statistics. Data for 2011–2014 are from the Judicial Business of the US Courts Annual Reports. in the proportion of criminal cases convicted through guilty pleas. As such, early suggestions that “any assessment of the dispositional process must center upon the guilty plea process” (Nardulli et al. 1985, p. 1106) are even more salient today than in the past. Second, prosecutorial power to determine plea outcomes has expanded in recent decades (Bibas 2001). In 1940, former Attorney General and eventual Supreme Court Justice Robert Jackson famously remarked that “the prosecutor has more control over life, liberty and reputation than any other person in America” ( Jackson 1940). Today this power is even greater. Prosecutors control the number, severity, and type of charges; stipulations to speciﬁc case facts; and agreements regarding the type or severity of punishment, which can include both punitive enhancements like mandatory minimums and lenient alternatives such as pretrial diversion. The growing power of the prosecutor has led some to claim that prosecutors have become “kings of the courtroom” (The Economist 2014). In part this reﬂects recent policy shifts, such as structured sentencing guidelines and mandatory minimums, which provide additional leverage in plea negotiations because the severity of charges largely determines the available penalties (Bibas 2001, Coffee & Tonry 1983, Frase 2000, Miethe 1987). As one judge phrased it, shifts in sentencing policy “provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains” (Rakoff 2014, p. 4). Incentives to plead guilty have become so powerful that false guilty pleas are a serious concern for scholars who focus on miscarriages of justice (Garrett 2010, Redlich 2010). By one estimate, a quarter of wrongful convictions are the result of false confession (Innocence Proj. 2015), and for those with mental illness, the rate of false guilty pleas can exceed 40% (Redlich et al. 2010). Third, a great deal remains unknown about the processes that lead to guilty pleas or the substantive impacts that these decisions have on criminal punishments. Although legal scholars have long debated the merits and demerits of plea bargaining (Alschuler 1981; Feeley 1979; Gifford 1983; Schulhofer 1988, 1992), relatively little empirical research analyzes plea outcomes. In fact, some leading scholars have argued that negotiated guilty pleas are the “single most unreviewed decision” www.annualreviews.org • Guilty Pleas and Prosecution 481 in the entire criminal justice system (Gottfredson & Gottfredson 1988, p. 114). Recent reviews of the empirical work further support this observation
. As Frederick & Stemen (2012, p. 1) note, “How prosecutors utilize their discretion, and what goes into prosecutorial decision-making,” remains “little understood outside the community of prosecutors.” The highly discretionary nature of plea bargains combined with a lack of formal public oversight places a heightened premium on research examining guilty plea outcomes. Finally, recent data innovations are providing new opportunities to advance research on guilty pleas. Empirical work has long been hampered by a lack of quality data on plea negotiations and outcomes. Although data availability remains a hurdle, recent collaborations between researchers and prosecutors’ ofﬁces are providing unparalleled access to case ﬁles that allow new questions to be investigated (Frederick & Stemen 2012, Kutateladze et al. 2014, Spohn & Tellis 2014). Scholars are also generating new data through inventive research designs, such as online surveys of court actors that employ experimental manipulations (e.g., Bushway et al. 2014). Moreover, the capacity to link case-processing information across stages of the justice system has improved in the past decade such that information about a given case can be tracked from initial arrest all the way through prosecution and sentencing (e.g., Rehavi & Starr 2014, Shermer & Johnson 2010, Stemen & Escobar 2015). These types of holistic data enable new insights into the causes and consequences of plea bargaining and provide new opportunities for rekindling interest in guilty pleas and improving upon existing research. We begin by brieﬂy putting guilty pleas into historical context (see Smith 2005 for a detailed treatment). We then review work on the social context of guilty pleas, paying particular attention to widely applied theories of plea bargaining and to research on disparities in plea outcomes. Finally, we draw on existing theory and research to suggest promising directions and important next steps for work in this area. THE HISTORICAL CONTEXT OF GUILTY PLEAS Plea bargaining occurs when a “defendant in a criminal case relinquishes the right to go to trial in exchange for a reduction in charge and/or sentence” (Heumann 1978, p. 1). Although commonplace now, guilty pleas and especially plea negotiations were not always the workhorses of the justice process. Prior to the late nineteenth century, any confession, let alone a negotiated plea, was discouraged by common law judges on both sides of the Atlantic (Alschuler 1979, pp. 214–15; Beattie 1986). Data on guilty pleas prior to the Civil War are spotty, but it appears that confessions and plea bargaining gained traction in the mid-nineteenth century. By the late nineteenth and early twentieth century, the practice had become ﬁrmly institutionalized and widely implemented. For example, data from Connecticut for the post–Civil War period reveal that only a small percentage of those found guilty were by trial verdict—between 10% and 20% from 1880 to 1910. For the period 1910–1954, trial verdicts rarely surpassed 10% (see also Friedman 1979). The notion of bargaining for a confession was shunned by the appellate courts during this time (Alschuler 1979), yet the practice continued unabated. By the 1920s, the rate of guilty pleas was 85% in Chicago, 88% in New York City, 90% in Minneapolis, and 95% in St. Paul (Moley 1928, p. 105), and critics began lamenting the eclipse of the jury (Smith 2005). Early surveys by Moley (1928, 1929) and by state and federal commissions (Am. Law Inst. 1934, Wickersham Comm. 1931; see Alschuler 1979, p. 233) constituted the ﬁrst wave of plea bargaining research, which effectively exposed the practice and called attention to the increasing rarity of trials in the early twentieth century. Yet a fundamental question persisted: Why did guilty pleas become the new norm, especially during a period of appellate court scrutiny? In his comprehensive review 482 Johnson· King· Spohn of rising plea rates, Smith (2005) highlights four factors that ﬁgured prominently into historical legal research. The earliest and perhaps most commonly discussed is caseload pressure (Feeley 1979, Moley 1929, Nardulli et al. 1988). A high volume of criminal cases entering the justice system placed a premium on courtroom efﬁciency and created incentives for all members of the court workgroup to reward guilty pleas to dispose of cases with minimal effort (Dixon 1995). Despite the prominence of this explanation, it has been fervently debated, and empirical support remains mixed (Alschuler 1979, Friedman 1979, Wooldredge 1989). A second proposed factor is the length of trials.
Eighteenth-century common law trials were expedient affairs (Langbein 2003). Friedman (1979, p. 257) describes them as “cut-and-dried—and very short, perhaps a half-hour at most.” Such speedy trials left little efﬁciency to be gained by plea bargaining. Over time, however, juridiﬁcation expanded the scope and complexity of criminal procedure, and hence the time and effort required for a trial became appreciably high in comparison to a guilty plea. A third key factor identiﬁed by Smith (2005) is the professionalization of police and prosecutors’ ofﬁces, which introduced more information and earlier fact ﬁnding into the charging process (Friedman & Percival 1981). With more evidence at hand earlier in the investigation, prosecutors had greater leverage to exact guilty pleas. Historical records suggest that the power of the prosecutor to negotiate cases grew steadily throughout the nineteenth and twentieth centuries (McDonald 1979). Finally, several key structural shifts in society coincided with the rise of plea bargaining. The advent of public elections to select district attorneys and judges resulted in a premium on organizational measures of success, such as conviction rates (McConville & Mirsky 2005). The due process revolution in the mid-twentieth century gave defendants new constitutional rights that further expanded the strategic advantage of guilty pleas. And some historical work suggests plea bargaining offered a calculated approach for molding working relationships and gaining legitimacy during times of political instability and social unrest (Vogel 1999, 2005). For example, McConville & Mirsky (2005) suggest that the emergence of elected district attorneys, coupled with an inﬂux of large numbers of immigrants during the last half of the twentieth century, led prosecutors to search for effective and politically palatable ways of controlling the immigrant population. As they note, district attorneys allowed defendants to plead guilty to less serious charges “to avoid the discontent that harsh terms of punishment would engender among the immigrant underclass, who, under the movement for universal suffrage, had become part of the newly formed electorate” (McConville & Mirsky 2005, p. 197). Each of these factors likely played a role in the institutionalization of guilty pleas and the emergence of plea bargaining, but high plea rates in recent decades have also been fueled by workgroup incentives and failed legal challenges. It is widely recognized that prosecutors have strong incentives to induce guilty pleas (Alschuler 1968, Schulhofer 1992). Pleas maximize organizational resources, increase conviction rates, avoid uncertainty in case outcomes, and sidestep potential legal challenges at trial. Individual defendants and defense attorneys also have strong incentives to plea bargain. Research consistently demonstrates a “trial penalty” or “plea discount” in criminal cases (Bushway et al. 2014, Johnson 2003, Smith 1986, Ulmer et al. 2010).3 In fact, plea incentives can be strong enough to induce innocent defendants to plead guilty (Dervan & Edkins 2013, Rakoff 2014, Redlich 2010). Pleading guilty not only reduces punishment but also saves the ﬁnancial costs and public exposure of a criminal trial. Judges also have incentives to accept pleas (Alschuler 1976). 3The difference between a trial penalty and a plea discount is partly semantic, but the distinction also has normative implications. Both phrases relate to the difference in expected punishments for conviction by guilty plea relative to trial, yet referring to a penalty connotes a critical perspective in which defendants are punished for exercising their right to jury trial, whereas a discount implies that defendants receive less punishment or get a break by pleading guilty. www.annualreviews.org • Guilty Pleas and Prosecution 483 Judicial complicity with plea bargaining helps streamline and sidestep time-consuming formal adjudication processes because pled cases require fewer court resources and help avoid backlogs on court dockets (Eisenstein et al. 1988). Given the incentive structures that are in place for prosecutors, defendants, and judges, it is not surprising that negotiated guilty pleas have come to dominate the contemporary landscape of criminal punishment in the United States (Alschuler 1979, Smith 2005). Finally, the Supreme Court has played an important role in institutionalizing plea bargaining in the American justice system. Although the Court was initially skeptical (see United States v. Jackson), it ultimately decided that plea bargaining was “an essential component of the administration of justice” that when properly administered “is to be encouraged” (Santobello v. New York). In the Santobello decision, the Court defended plea bargaining and noted that “if every criminal charge were subject to a full-scale trial, the states and the Federal Government would need to multiply by many times the number of judges and court facilities.” Given that plea bargaining is now the sine qua non of criminal case disposition, empirical research on its causes and consequences is essential
. THEORY AND RESEARCH ON GUILTY PLEAS Several theories have emerged across various disciplines to explain variation in guilty pleas. In economics, the “shadow of the trial” model has predominated (Mnookin & Kornhauser 1979); in criminology, “focal concerns theory” is frequently employed (Spohn et al. 2001); and in political science, courtroom community theory holds sway (Nardulli et al. 1988). Empirical research on guilty pleas can be similarly categorized. Research by economists and psychologists often tests variations of the shadow of the trial model, attempting to clarify the speciﬁc value of a plea offer and the underlying rationale behind why some defendants plead guilty and others go to trial. Empirical work by criminologists, however, more often focuses on inequalities in plea bargaining outcomes. Particular attention is paid to the effects of defendant and victim characteristics as well as legal considerations like case strength. Finally, research by political scientists often examines the different forms that plea bargaining takes and how these manifestations vary across social contexts. One way of understanding and categorizing prior empirical work on guilty pleas, then, is to consider differences in disciplinary agendas—each school of thought focuses on different actors and decision points and attempts to answer somewhat different research questions. An Economic Tradition: The Shadow of the Trial Model Landes (1971) was among the ﬁrst to develop a formal model of plea bargaining. True to the assumptions of economic work on crime and justice, he argued that both the prosecutor and defendant seek to maximize their own utility, which includes their consideration of the probability of conviction, the severity of the crime, the availability of resources, and attitudes toward risk (Landes 1971, p. 61). A sizeable literature has since developed around the idea that interested parties negotiate plea outcomes “in the shadow of the trial,” meaning that they make plea decisions with some anticipation of what the expected outcome is at trial (Bibas 2004). The shadow model was originally applied by economists to civil and divorce cases, where it was assumed that actors involved in disputes would act rationally and “forecast the expected trial outcome and strike bargains that leave both sides better off by splitting the saved costs of trial” (Bibas 2004, p. 2464). Subsequent work has applied the shadow model to the realm of criminal law. Bushway et al. (2014, p. 724) lucidly summarize the model as it applies to criminal cases: 484 Johnson· King· Spohn [A] defendant pleads guilty if the offered sentence is less than or equal to his or her expected value of the trial. For example, if the expected sentence for a conviction at trial is 20 years and the defendant believes his or her probability of conviction at trial is 0.8, then a plea to a sentence of no more than 16 years (80% of 20) represents a rational choice for a risk-neutral defendant. The shadow of the trial model is attractive because of its simplicity, its precision when making predictions, its adaptability to formal mathematical modeling, and the limited information needed to test it. Recent work, however, has criticized key aspects of the model on empirical and logical grounds. For instance, the shadow model emerged from civil law, which closely resembles a business decision. Yet this model may not be easily transferable to criminal law because the latter allows for less discovery prior to trial.4 Further, there is more variation in attorney effectiveness across cases, and more structural and psychological impediments to rational decision making (Bibas 2004). The application of the model to the criminal justice system therefore introduces more uncertainty. For instance, the incentives for prosecutors and defense attorneys are not identical to those for civil law attorneys, information deﬁcits are greater in criminal law owing to inadequate discovery prior to trial, and sentencing policies vary across jurisdictions. Stuntz (2004) further suggests that three features of the American prosecutor raise important questions about the applicability of the shadow model to criminal cases: Prosecutors do not necessarily try to maximize total prison time in the same way that civil litigants try to maximize dollars, they lack the time to take every winnable case to trial, and sometimes the law mandates more punishment than the prosecutor desires. Behavioral economists and psychology of law scholars have begun to address some of these concerns, expanding the shadow model to better ground it in “more accurate assumptions about human behavior” ( Jolls et al. 1998, p. 1474). Research in the psychological tradition elucidates the ways that human decision making during guilty pleas can diverge from conventional rational choice models (Covey 2007). Cognitive biases and data processing heuristics raise questions for rational choice models (see, generally, Tversky & Kahneman 1974) and can result in overconﬁdence in trial outcomes, statistical discounting of future punishment, or other biases during plea negotiations (see
Bibas 2004). This work has clear relevance for understanding guilty pleas (Bordens 1984, Burke 2006, Dervan & Edkins 2013, Redlich & Summers 2012). Traditional economic analysis of plea outcomes can therefore beneﬁt from incorporating insights from cognitive psychology and behavioral economics. The empirical research testing the shadow model offers a mixed bag of ﬁndings. In an early and widely cited test of the model, Smith (1986) made use of data on previously tried cases to estimate two critical pieces of information when testing the model: the probability of conviction at trial for selected offenses and the probability of an incarceration sentence, conditional on being convicted. He then used individual-level data for all pled cases to generate an expected outcome of each pled case if it had proceeded to trial. Smith argued that if the shadow model is valid, the expected probability of prison after a trial should be similar to the likelihood of prison after a plea bargain. He found support for the shadow model, demonstrating that the aggregate trial tax was largely offset by the probability of acquittal at trial. Yet recent studies have raised new questions about the veracity of the shadow model. For instance, Abrams (2011) argues that guilty pleas actually result in longer expected sentences than trials do. His analysis of data from Cook County (Chicago area) demonstrates that the trial penalty not only disappears but also becomes a trial discount when acquittals are incorporated into the 4We use the term discovery in the legal sense, that is, the process by which defendants are provided information about the state’s case against them. www.annualreviews.org • Guilty Pleas and Prosecution 485 model. Bushway and colleagues also recently tested the shadow thesis. Using the same data as Smith (1986), Bushway & Redlich (2012) estimated the expected probability of conviction if a case went to trial for a sample of offenders who ultimately pled guilty. They reasoned that if the shadow model is credible, then the strength of evidence, which is one of the strongest predictors of conviction, should have similar effects for trial and pled cases. Their ﬁndings contradict this expectation and raise additional empirical challenges for the shadow model. Bushway et al. (2014) provide an even more thorough test of the thesis. Using online vignettes with a large sample of prosecutors, judges, and defense attorneys, they manipulated experimental survey conditions to assess whether certain combinations of evidence and defendant criminal history altered expected case outcomes. They ﬁnd some support for the shadow model in that cases with stronger evidence generated higher expected probabilities of conviction and higher acceptable plea values, which were generally similar to expected sentences at trial. Yet the results varied by respondent. Defense attorneys’ responses were generally consistent, prosecutors’ less so, and judicial responses were decidedly inconsistent with the shadow model. A Criminological Tradition: The Focal Concerns of Prosecution The second commonly applied perspective to understanding guilty pleas is focal concerns theory. This perspective was originally developed in criminology to explain the sentencing decisions of judges (Steffensmeier et al. 1998) but has since been adapted to explain plea bargaining outcomes (Shermer & Johnson 2010, Spohn et al. 2001). It is rooted in organizational perspectives on court actor decision making that emphasize the need for prosecutors and other court actors to reduce uncertainty in case outcomes (Albonetti 1986, 1987). The original formation of focal concerns theory argues that judges are concerned primarily with offender blameworthiness; with community protection, which involves assessing defendant dangerousness and risk of recidivism; and with various individual and organizational practical consequences of sentencing decisions, such as an offender’s ability to do time in prison or local resource constraints of the court environment. Applied to plea bargaining, the theory accentuates the unique concerns of prosecutors during plea negotiations. Not only are prosecutors interested in the dangerousness and culpability of defendants, but they are also concerned with “doing justice” (Eisenstein & Jacob 1977); with broader political goals associated with the “trial-worthiness” and “convictability” of cases (Frohmann 1997); and with long-term career goals, such as reelection (McCannon 2013). Plea bargaining plays a central role in the pursuit of these goals because prosecutorial effectiveness is often judged by high conviction rates (Eisenstein et al. 1988). The strength of the focal concerns perspective is its ability to be adapted to different court actors involved in the plea bargaining process and its utility for shaping expectations about various individual- and case-level factors that affect plea outcomes. However, relatively few formal tests of these theoretical arguments have been attempted, and research is typically focused on prosecutorial discretion with little attention devoted to the role of other actors in the process. Recent critiques of the focal concerns framework further point out that direct measures of key constructs, such as defendant culpability or dangerousness, are rarely quantiﬁable in available data on plea outcomes
(Hartley et al. 2007). Instead, vague and imperfect proxies, such as prior criminal history, are used as indirect indicators of core facets of the theory. Focal concerns theory is thus useful for summarizing key considerations of different actors in plea negotiations, but it remains limited in its ability to provide direct and testable research propositions. To date, guilty plea research in the focal concerns tradition has focused primarily on sources of inequality and disadvantage in charging and plea outcomes. Criminologists examine an array of prosecutorial decisions, from initial screening and case dismissal (Holleran et al. 2010, Kingsnorth 486 Johnson· King· Spohn et al. 2002, Spohn & Tellis 2014, Spohn et al. 1987) to charge reductions and sentencing enhancements (Piehl & Bushway 2007, Shermer & Johnson 2010, Spears & Spohn 1997). Evidence for racial and gender disparities is also reported in multiple studies (e.g., Albonetti & Hepburn 1996, Kingsnorth & MacIntosh 2007, Rehavi & Starr 2014, Spohn & Spears 1996, Spohn et al. 1987), though it is not uncommon for research to ﬁnd little or no evidence of discrimination in plea outcomes (e.g., Franklin 2010a, Holmes et al. 1987, Kingsnorth et al. 1998, Wooldredge & Grifﬁn 2005). Using data on federal courts, Shermer & Johnson (2010) found that racial minorities were not disadvantaged in terms of charge reductions, but Rehavi & Starr (2014) reported that racial differences in federal sentence lengths existed and were attributable largely to the application of initial charges carrying mandatory minimums. In a particularly innovative analysis, Kutateladze et al. (2014) examine cumulative disadvantages across successive stages of case processing and ﬁnd that black and Hispanic defendants are more likely to have their cases dismissed, but also more likely to receive custodial plea offers. In their overview and summary of recent studies of race and prosecution, Kutateladze et al. (2012, p. 1) conclude that “overall, research ﬁnds that the effect of race and ethnicity on prosecutorial decision-making is inconsistent, and it is not always blacks and Latinos/as who are treated more punitively.” Effects for gender tend to be more pronounced but often depend on the type of crime committed (Shermer & Johnson 2010). Two other key inﬂuences in plea bargaining are victim characteristics and evidentiary strength of the case. Several studies demonstrate that victim characteristics inﬂuence prosecutorial decision making (e.g., Kingsnorth & MacIntosh 2007, Kingsnorth et al. 1999, Spears & Spohn 1997, Spohn & Tellis 2014). Victim cooperation may be necessary to secure a conviction, particularly in offenses such as intimate partner violence or sexual assaults (Spohn et al. 2001), and victim background characteristics, such as risky behavior, provocation, or victim/offender relationships, can color prosecutorial evaluations of case convictability (Frohmann 1997, Spohn et al. 2001). Another consistent ﬁnding from early research on guilty pleas is that the quality of evidence against the defendant is an important predictor of plea outcomes (e.g., Albonetti 1987). For instance, Kutateladze et al. (2015) show that prosecutors offer more punitive charge bargains when certain types of evidence, such as audio/video recordings, eyewitness identiﬁcation, or recovered currency, are present, though this work also suggests that evidence may be more important at initial case acceptance than during plea bargaining. Finally, some research indicates that black and Hispanic defendants are less likely to plead guilty (Albonetti 1990, Frenzel & Ball 2008), though relatively few studies in this theoretical tradition focus explicitly on the choice of alternative types of case disposition. It is not clear whether racial differences in trial rates reﬂect differences in the quality of plea offers, cooperation of defendants, or other factors. A small number of studies also investigate how sentencing guidelines affect plea bargaining practices (Vance & Oleson 2013, Wooldredge & Grifﬁn 2005) or attempt to quantify plea bargaining discounts (e.g., Piehl & Bushway 2007, Shermer & Johnson 2010, Wright & Engen 2006). Shermer & Johnson (2010), for instance, report that charge reductions in federal court reduce average sentences by 19%, and Wright & Engen (2006) conclude that charging decisions actually have larger effects on punishment than sentencing decisions. Few studies, though, capture the dynamic and recursive nature of plea bargaining. Instead, researchers are typically limited to indicators of whether or not a
charge reduction occurred. Capturing the full complexity of plea bargaining is difﬁcult because it can occur at different stages, often involves multiple decision makers, and is seldom recorded in systematic fashion in publicly available data. Moreover, as both Wright & Engen (2006) and Graham (2012) have noted, idiosyncratic features of the criminal code often shape the scope and range of possibilities in plea negotiations, making some crimes more amenable to bargains than others. This work suggests that the speciﬁc legal characteristics of different crimes and statutes need to be incorporated into existing models of plea bargaining. www.annualreviews.org • Guilty Pleas and Prosecution 487 A Political Science Tradition: The Court Community Perspective A distinct theoretical perspective on plea bargaining derives from early work in political science examining the interplay of different court actors in the justice system. Court community theory emphasizes the essential role of collective workgroup norms in case dispositions (Eisenstein & Jacob 1977). It is closely aligned with organizational efﬁciency perspectives (Dixon 1995) that highlight the shared need of court actors to move cases through the justice system. As a result, standard operating procedures, clear division of labor, and professional socialization and training develop to encourage cooperation among different members of the court workgroup (Albonetti 1991, March & Simon 1958, Nardulli et al. 1988). Group cohesion and shared workgroup norms are routinized over time in ways that shape the fundamental parameters of guilty plea negotiations. Feeley (1979) has suggested that plea bargaining is akin to a modern-day supermarket where sentences are not haggled over anew each time but rather established through repeated negotiated processes. Extensions of this perspective emphasize the recursive nature of guilty pleas and the frequent interactions of repeat actors in the process (Emmelman 1996). Over time, recurrent patterns of guilty pleas emerge in which “going rates” are applied for “normal crimes” (Sudnow 1965). According to court community perspectives, then, plea bargaining processes are embedded in local legal cultures that vary across jurisdictions and shape shared value orientations, behavioral expectations, and accepted case processing norms. In line with this perspective, prior research suggests that variations in organizational environments and institutional norms result in different charge bargaining practices across courts. Eisenstein & Jacob’s (1977) study of three American cities demonstrated that some courts had much higher rates of plea bargaining than others, which in part reﬂected differences in local politics; media coverage; organizational resources; and historical experiences with crime, discrimination, and community relations (cf. Nardulli et al. 1988). Local institutional practices also shape plea bargaining practices in important ways. For example, LaFree (1985) shows that plea outcomes are more consistent in “high control” jurisdictions where there is more formal oversight and regulation of prosecutorial practices. Aggregate analyses of charging and plea practices also demonstrate the relevance of the court community perspective. Franklin (2010b) shows that case dismissals vary markedly across large urban counties, and Johnson (2014) provides evidence that the relative use and effect of prosecutorial charge reductions vary geographically in the federal justice system. PROMISING DIRECTIONS FOR FUTURE WORK Our review of the historical, theoretical, and empirical work on guilty pleas illustrates that it is a crucial topic that has generated research across diverse disciplines. Despite these contributions, though, some important limitations continue to characterize contemporary scholarship on guilty pleas and prosecution. We therefore conclude with a discussion of promising directions for future work. In particular, we suggest that signiﬁcant strides can be made by innovating in three core areas: the measurement of key variables; the expansion of available data and methods, including the linking of information across stages of the justice system; and the sharing of core theoretical insights across disciplinary silos. First, several measurement issues require attention. For instance, prior work typically focuses on whether or not a guilty plea occurs rather than investigating the processes that generate guilty pleas or the consequences of plea bargains on punishment. In particular, more attention needs to be devoted to the “distance traveled” in plea bargaining, which is the difference between the punishment received as a result of a plea and the punishment that would have been received without 488 Johnson· King· Spohn the plea. Wright & Engen (2006) suggest that what matters most is not whether a plea is accepted but rather the amount of movement that occurs within the penal code. Charge reductions that reduce felonies to misdemeanors, for instance, are particularly important because they redeﬁne the parameters of punishment that are available at sentencing, as well as the collateral consequences that attach to a felony record. Piehl & Bushway (2007, p. 107) similarly call for more attention to the value of plea bargains, and they outline a useful empirical approach for estimating the distance traveled. They state, “In a world in which 90% of the convictions end as a result of a
plea bargain...the substantive value of interest is the difference between what the person would have received if they had not pled and what they received as the result of the plea bargain.” Few studies to date have attempted to quantify the distance traveled in plea bargaining, making it a clear priority for future work. In addition, few studies include adequate information about the actual negotiated plea bargaining process. At best, researchers are usually limited to information on initial and ﬁnal charges, without knowledge of the bargaining processes that produce changes in the number or type of charges. The role that prosecutors play in negotiating sentencing agreements has received even less attention. Guilty pleas that involve sentencing discounts as part of the negotiation process are not generally captured in charge reduction measures, yet they can have profound effects on punishment. Additional research is needed that distinguishes between the different types of plea offers that occur and develops improved measures of the intermediate negotiated plea processes. These include all plea offers that are made, whether they are accepted or not, information on the types and timing of plea offers, and the speciﬁc concessions that are made in exchange for the act of self-conviction. Another common measurement concern deals with the strength of the evidence in a case. Evidentiary strength clearly inﬂuences guilty pleas (Albonetti 1987), yet contemporary research rarely has adequate controls for the quantity or quality of evidence. Often this information is not systematically recorded, and hence measures of case strength are rarely available. Researchers are forced to either exclude quality of evidence or infer it indirectly from other variables, such as the presence of a witness. Future data collection efforts need to place a premium on improving our measures of evidence, particularly when examining social inequality in case processing outcomes (see, e.g., Kutateladze et al. 2015). Failing to control for differences in evidentiary strength could produce biased estimates of racial or gender disparity. As discussed below, one approach that could prove valuable in assessing the role of evidence is experimental research in the psychological tradition that makes use of vignettes or hypothetical case ﬁles and allows for the systematic manipulation of variables like evidence (Bordens 1984, Bushway et al. 2014, Dervan & Edkins 2013). Second, researchers need to improve upon the data and analysis used to study plea outcomes. Historically, high-quality data on prosecution and guilty pleas have been difﬁcult to obtain. Prosecutors are reluctant to share data with researchers because it opens them up to public scrutiny, and information often has to be gleaned from paper case ﬁles, which is time and resource intensive. Yet technology and research partnerships are making new types of data available. Case automation is digitizing data that was once available only on paper, which can facilitate multijurisdictional data collection. For instance, the nonproﬁt organization Measures for Justice is collecting detailed data on prosecution, pleas, and sentencing from online data repositories in several states (Stemen & Escobar 2015). At the same time, research projects are under way in which academics have entered into cooperative relationships with prosecutors in efforts to implement evidence-based practice. The Vera Institute of Justice, for example, recently completed a large-scale study of racial justice in Manhattan that was conducted with the cooperation of the District Attorney’s Ofﬁce (see, e.g., Kutateladze et al. 2014), and similar projects have recently been completed in other jurisdictions (Frederickson & Stemen 2012, Spohn & Tellis 2014). These types of data collections can provide www.annualreviews.org • Guilty Pleas and Prosecution 489 essential information on case processing, such as the evidentiary strength of the case and related details that precede or follow plea bargaining negotiations (Kutateladze et al. 2014). Related to this latter point, it is critical that researchers link data across multiple points in the justice process. For example, the Federal Justice Statistics Program allows researchers to link data across several federal agencies. Shermer & Johnson (2010) ﬁrst used these data to show that charge reductions result in substantial discounts in punishment. Rehavi & Starr (2014) conducted similar analyses to demonstrate that prosecutorial discretion to invoke mandatory minimums is an important factor contributing to racial disparity. These approaches are emblematic of a broader zeitgeist in which guilty pleas are being increasingly conceptualized as part of a more expansive sequential punishment process. Importantly, conceiving of guilty pleas in this way opens up opportunities for new types of data analysis. Long ago, Hagan (1974) used path analytic models to investigate the mediating inﬂuence of plea outcomes on case dispositions, and recent work has begun reinvigorating this approach (Brennan 2006). Several recent studies have also begun to investigate the cumulative and mediating effects of defendant characteristics across stages of the justice system (Kutateladze et al. 2014, Stol
zenberg et al. 2013, Sutton 2013). Moreover, contemporary research could learn from emulating seminal work done in the 1970s and 1980s. Several inﬂuential works used targeted case studies that provided detailed analysis of operational decision making in criminal courts (Eisenstein & Jacob 1977, Hogarth 1971, Nardulli et al. 1988). Some contemporary work has implemented similar mixed methods approaches to the study of guilty pleas (Frederick & Stemen 2012, Spears & Spohn 1997, Spohn & Tellis 2014), but more research of this ilk is needed. A ﬁnal methodological approach that can advance guilty plea research is experimental methods. A strong psychological research tradition employs randomized trials, often with vignettes or hypothetical case ﬁles, to study defendant or jury decision making, but this approach has only rarely been applied speciﬁcally to plea bargaining. Dervan & Edkins (2013) demonstrate the utility of this approach in their study of innocence and plea bargaining. They show that under the proper conditions even innocent defendants will falsely admit guilt. Bushway et al. (2014) applied a similar method using online surveys with a large sample of judges and attorneys. Each respondent was presented with a hypothetical robbery case and asked how she would advise a junior colleague who had come to her for advice. Certain case facts were experimentally manipulated to assess how much the strength of evidence inﬂuenced attorney recommendations and expectations about the probability of conviction and expected sentence at trial. Their ﬁndings demonstrate that the type of evidence available is signiﬁcantly related to each of these outcomes, and this information was only generated via the experimental approach. Finally, we think that explanatory theories of guilty pleas can be enriched by integrating ideas across disciplines and by expanding upon commonly investigated research questions. Economic analyses of the shadow of the trial model, for instance, could beneﬁt from incorporating broader social and organizational contexts often highlighted by sociologists and political scientists (McCannon 2013, Ulmer & Johnson 2004). For instance, Bandyopadhyay & McCannon (2014) suggest that if prosecutors are rational actors making cost-beneﬁt decisions, then their behavior should change with a speciﬁc aspect of the political environment: prosecutorial elections. Their empirical work shows that prosecutors are more willing to go to trial when elections approach, which they suggest is “in order to gain attention in the news, appear hawkish to voters, obtain greater sanctions, deter challengers in the general election, and to be successful in the primary” (Bandyopadhyay & McCannon 2014, p. 152). Other areas ripe for expanding the shadow model include more explicit tests of the types of cognitive prejudices that enter into guilty pleas. Psychologists identify a broad range of decision-making heuristics, such as loss aversion, overconﬁdence, and discounting, each of which is relevant for complex decisions like plea bargaining (Covey 2007). 490 Johnson· King· Spohn Sociological and criminological work rooted in the focal concerns tradition could similarly beneﬁt by incorporating insights from other disciplines. Much of the sociological research on racial disparity, for instance, fails to tap into the underlying psychological mechanisms that produce disparate outcomes. Work in psychology, though, explicitly discusses how cognitive racial biases can shape the exercise of prosecutorial discretion (Smith & Levinson 2012). These views could be formally incorporated into the focal concerns paradigm and tested in future empirical work on plea negotiations (see, e.g., Rachlinski et al. 2009). Future guilty plea research also needs to expand the range of research questions investigated. Disciplinary habits often shape the questions that are asked and the outcomes that are examined. Rather than simply focusing on individual plea outcomes, for instance, research might examine guilty plea rates across geographical and temporal contexts. Historical legal research suggests caseload pressure and due process protections shape plea bargaining practices across time and space, and court community perspectives implicate bureaucratic and organizational structures as key determinants of trial rates. Empirical research examining aggregate outcomes such as trial and plea rates provides alternative avenues for advancing our understanding of guilty pleas. In conclusion, there is little reason to expect that plea bargaining will become less important in the near or distant future. As Justice Kennedy stated with only a hint of hyperbole in the opening quotation of this article, plea bargaining is the justice system. As such, understanding the decision-making processes of defendants; the salient legal, case-processing, and extralegal factors that shape guilty pleas; and the distinct roles played by different court actors across stages of the justice system and across social contexts all represent research imperatives for future work. Research on such topics as distance traveled and racial disparity will have important implications for a larger philosophical debate about plea bargaining and justice, and whether it is a benign practice, a cause
of unequal justice, or a necessary evil that must exist to keep the system operative. Although the volume of scholarship in this area has increased in recent years, more work is clearly needed. We hope this review provides some guidance for moving forward and for creating a sustained program of research on guilty pleas; there is much more we need to know. DISCLOSURE STATEMENT The authors are not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS This work was supported by a Research Coordination Network grant from the National Foundation of Science (Grant No. SES-1324283). The authors thank the Principal Investigator on the grant, Shawn D. Bushway, for organizing the collaboration and for providing helpful comments on an earlier draft of this paper. Direct correspondence to Brian Johnson (bjohnso2@umd.edu) or Ryan King (king.2065@osu.edu). LITERATURE CITED Abrams DS. 2011. Is pleading really a bargain? J. Empir. Leg. Stud. 8(1):200–21 Albonetti CA. 1986. Criminality, prosecutorial screening, and uncertainty: toward a theory of discretionary decision-making in felony case processings. Criminology 24:623–44 Albonetti CA. 1987. Prosecutorial discretion: the effects of uncertainty. Law Soc. Rev. 21(2):291–314 Albonetti CA. 1990. Race and the probability of pleading guilty. J. Quant. Criminol. 6(3):315–34 www.annualreviews.org • Guilty Pleas and Prosecution 491 Albonetti CA. 1991. An integration of theories to explain judicial discretion. Soc. Probl. 38(2):247–66 Albonetti CA, Hepburn J. 1996. Prosecutorial discretion to defer criminalization: the effects of defendant’s ascribed and achieved status characteristics. J. Quant. Criminol. 12(1):63–81 Alschuler AW. 1968. The prosecutor’s role in plea bargaining. Univ. Chicago Law Rev. 36:50–112 Alschuler AW. 1976. The trial judge’s role in plea bargaining, part I. Columbia Law Rev. 76:1059–154 Alschuler AW. 1979. Plea bargaining and its history. Law Soc. Rev. 13:211–45 Alschuler AW. 1981. The changing plea bargaining debate. Calif. Law Rev. 69(3):652–730 Am. Law Inst. 1934. A Study of the Business of Federal Courts. Philadelphia: Am. Law Inst. Bandyopadhyay S, McCannon BC. 2014. The effect of the election of prosecutors on criminal trials. Public Choice 161:141–56 Beattie JM. 1986. Crime and the Courts in England, 1660–1800. Princeton, NJ: Princeton Univ. Press Bibas S. 2001. Judicial fact-ﬁnding and sentence enhancements in a world of guilty pleas. Yale Law J. 110:1097– 187 Bibas S. 2004. Plea bargaining outside the shadow of trial. Harvard Law Rev. 117:2463–547 Bordens KS. 1984. The effects of likelihood of conviction, threatened punishment, and assumed role on mock plea bargaining decisions. Basic Appl. Soc. Psychol. 5(1):59–74 Brennan P. 2006. Sentencing female misdemeanants: an examination of the direct and indirect effects of race/ ethnicity. Justice Q. 23(1):60–95 Burke A. 2006. Improving prosecutorial decision making: some lessons of cognitive science. William Mary Law Rev. 47:1587–633 Bushway SD, Redlich AD. 2012. Is plea bargaining in the “shadow of the trial” a mirage? J. Quant. Criminol. 28:437–54 Bushway SD, Redlich AD, Norris RJ. 2014. An explicit test of plea bargaining in the “shadow of the trial.” Criminology 52:723–54 Coffee JC, Tonry M. 1983. Hard choices: critical trade-offs in the implementation of sentencing reform through guidelines. In Reform and Punishment: Essays on Criminal Sentencing, ed. M Tonry, F Zimring, pp. 155–203. Chicago: Univ. Chicago Press Covey R. 2007. Reconsidering the relationship between cognitive psychology and plea bargaining. Marquette Law Rev. 91:213–47 Dervan LE, Edkins VA. 2013. The innocent defendant’s dilemma: an innovative empirical study of plea bargaining’s innocence problem. J.
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Graham 1990; Hurwitz & Lanier 2003; Jacob 1964; Tokars 1986). Furthermore, the early research that did attempt to look at the impact of selection method on judicial decisions (Atkins & Glick 1974, Nagel 1973) focused on the method of selection used when the current incumbent vacates his or her position at the end of a term; in practice, most judges in most election states are appointed to ﬁll a midterm vacancy. What this means is that most judges come to their position initially through an appointment process regardless of whether the formal system is elective or appointive.1 The theoretical reason for focusing on the retention question derives from the work of Joseph Schlesinger (1966) on political ambition. Schlesinger identiﬁed three distinct ofﬁce-holding goals that an ofﬁcial might have: ■ progressive ambition, or a desire to advance up the political hierarchy ■ static ambition, or a desire to retain the current position ■ discrete ambition, or a desire to hold the current ofﬁce only until the end of the current term Schlesinger was thinking in terms of elective ofﬁces and the different constituencies that an ofﬁceholder would be concerned about depending on his or her ambition.2 His argument was that the ofﬁceholder’s decisions would be shaped by the constituency relevant for the desired ofﬁce. The argument is just as valid for ﬁxed-term appointive ofﬁces, with the relevant constituency being whoever controls the reappointment process for the desired ofﬁce. For example, research has found that federal Court of Appeals judges who are likely candidates for appointment to the Supreme Court tend to modify their behavior when the prospects of an appointment are strong (Black & Owens 2016, Budziak 2013). For purposes of understanding most judicial behavior, the most relevant type of ambition is static, with the relevant constituency being either the electorate 1In two states, Louisiana and Arkansas, persons appointed to ﬁll court vacancies are prohibited from running for the position in the election that follows. In Pennsylvania, by tradition, appointees to the state supreme court do not run for the seat in the subsequent election, although this tradition was violated in 2015 when appointee Correale Stevens ran; Stevens lost in the Republican primary, coming in last among six candidates running for three seats. 2Political actors, judges included, can have concerns about other kinds of constituencies, what Baum (2006) referred to as “audiences.” 354 Kritzer or the appointing authority. In some circumstances, judges do not have to be concerned about retention, and in those cases they can be thought of as having discrete ambition. Most commonly this occurs when a judge cannot seek another term owing to age-based mandatory retirement; it also applies to all judges in the three states that do not have a retention process because once selected the judge serves either for life (“on good behavior”) or until reaching the mandatory retirement age.3 The broad question of whether judicial elections affect the decisions of judges can be broken down into three more speciﬁc questions: 1. Are there broad differences in decisions depending on whether elections are used for retention, are there differences depending on the type of election system used, and are there any similar effects in reappointment systems? 2. Does the quantity or nature of advertising in judicial elections have any effect on judicial elections? 3. Are judges inﬂuenced by the receipt of campaign contributions? The ﬁrst of these questions raises two subquestions: a. Does the use or nonuse of elections condition the effect of public opinion on judicial decisions? b. Does the term cycle (election cycle in states using elections) impact judicial decisions? Most of the research on the impact of the retention process has focused on decisions by justices of state supreme courts.4 There is no research on the impact of selection/retention on state judges serving on intermediate courts, but there is a small body of research on whether elections inﬂuence the sentencing behavior of trial court judges. In the next section, I brieﬂy discuss the types of selection and retention systems in use by the states. I then turn to a discussion of the research on the link between sentencing in trial courts and elections. The remaining sections focus on the impact of retention systems on state supreme court justices. One section looks at whether judicial decisions vary depending on the type of retention system, including whether any inﬂuences of public opinion are conditional on the retention system; this section is largely organized by the type of case, e.g., criminal cases, abortion cases, and same-sex marriage cases. A brief section then considers whether campaign advertising inﬂuences judicial decisions. A ﬁnal section considers the important research on the impact of campaign contributions on judicial decisions. The article ends with a brief conclusion. METHODS OF JUDICIAL SELECTION AND RETENTION Judicial selection
and retention in the United States are usually described as involving one of ﬁve methods: ■ Gubernatorial appointment, with or without a conﬁrmation process ■ Election by the legislature (sometimes referred to as legislative appointment) ■ Partisan election ■ Nonpartisan election 3Discrete ambition would also apply if a state had term limits for judges, something that does not exist at present in any state. 4By “state supreme court,” I mean the court of last resort, regardless of the name of the court. In New York, the Supreme Court is the name of the superior trial court and the intermediate court of appeals; the court of last resort is called the Court of Appeals. In Oklahoma and Texas, there are separate courts of last resort for criminal and noncriminal matters. www.annualreviews.org • Impact of Judicial Elections 355 ■ The Missouri plan (referred to as the merit plan by proponents), involving nomination by a screening committee and appointment by the governor from among those nominated, with retention elections—elections where voters are asked yes or no regarding a single candidate—for continuation in ofﬁce These descriptions grossly oversimplify the variation in selection and retention systems (see Kritzer 2015). It is best to focus separately on how judges are initially selected and how they are retained. In practice, most state judges are initially appointed to ofﬁce by the governor of the state, although in Illinois midterm vacancies are ﬁlled by appointment by the justices of the Illinois Supreme Court.5 In some states, the governor, either by law or by choice, employs a screening committee, and the governor may be constrained to appoint from among those nominated by the screening committee. The governor’s selection may be subject to conﬁrmation or veto by the legislature or some consultative committee. When there is an end-of-term vacancy on an appellate court in California, the governor nominates a person to ﬁll the position, and that nomination is then subject to a conﬁrmation election that looks like a retention election.6 The legislatures of two states, Virginia and South Carolina, select some or all judges. In the states that use elections to ﬁll all vacancies or end-of-term vacancies, those elections may use partisan ballots that identify the candidates as nominees of a political party or nonpartisan ballots that do not include party information. In Ohio and Michigan, the political parties make nominations—by primary election in Ohio and by party convention in Michigan—but the general election uses nonpartisan ballots; the discussion below refers to these states as using a “hybrid” method of selection/retention.7 Some studies group the two hybrid states with nonpartisan elections, whereas others group those two states with partisan elections (Nelson et al. 2013). Retention is not an issue in 3 states—Massachusetts, New Hampshire, and Rhode Island— where a judge serves until reaching a mandatory retirement age or “during good behavior,” effectively meaning until the judge either chooses to resign/retire or dies. In the other 47 states, the most common method of retention is some form of election: partisan, nonpartisan, or retention. In the remaining states, retention is through reappointment, usually by the governor, but by the legislature in South Carolina and Virginia. Judges seeking reappointment may be subject to a renomination and/or reconﬁrmation process; some states have provisions for some form of judicial evaluation prior to reappointment or reelection. Although retention elections are most commonly associated with initial appointment by the governor, 3 states—Illinois, Pennsylvania, and New Mexico—combine election to an initial full term through partisan elections with subsequent retention elections.8 Finally, it is important to note that in several states the methods of selection and retention vary depending on the level of the court, with one pair of methods used for trial courts and another for appellate courts or the supreme court. In a few states, the methods of selection and retention 5Justices of the Louisiana Supreme Court also make appointments to ﬁll vacancies, but those appointees are prohibited from running for the position in the subsequent election. In some states, assistant judges, magistrates, and judges of limited jurisdiction courts are appointed by higher-level judges. 6Because there are few end-of-term vacancies, relatively few conﬁrmation elections take place; by my count, such elections have happened only three times over 80 years for the California Supreme Court, and only seven times for the California Court of Appeals. 7Louisiana uses partisan ballots in which multiple candidates from each party run all together and the top two candidates, regardless of party, compete in a runoff if no candidate gets a majority in the ﬁrst round. 8In practice, most of the judges in partisan/retention states are ﬁrst appointed to ﬁll a midterm vacancy and then run in the subsequent partisan election. 356 Kritzer for trial or local courts vary within the state, which enables direct comparisons of
whether the differences in methods used produce different decisions by judges. SENTENCING DECISIONS BY TRIAL COURT JUDGES Research has examined two questions regarding the impact of election systems on the sentences imposed on criminal defendants by trial court judges. The ﬁrst is whether sentences vary depending on the type of election system used to retain judges. The second is whether judges change their sentencing behavior as they near the end of the current term and must stand for reelection if they desire to continue in ofﬁce. Variations in Sentencing Patterns by Retention System In an early study, Levin (1972) compared sentencing by judges in Pittsburgh and in Minneapolis. Although in both states most judges initially obtained their position through appointment, the judges in the two cities differed in terms of the type of election system used for retention: Pittsburgh used partisan elections, whereas Minneapolis used nonpartisan elections. Levin found that judges in Minneapolis tended to impose harsher sentences, both in terms of the likelihood of imposing sentences of conﬁnement and in terms of the length of that conﬁnement. However, although the differences are clear and consistent, it is less clear whether they were the product of the selection system or of the broader political cultures of the two cities. Judges in Pittsburgh tended to emerge from extensive involvement in local politics, whereas the judges in Minneapolis had been less politically involved. More broadly, Pittsburgh had a traditional partisan-style politics, whereas in Minneapolis more of a good government, nonpartisan style of politics prevailed. These differences impacted both who were selected as judges and the nature of retention politics the judges confronted. A pair of studies (Gordon & Huber 2007, Lim 2008) took advantage of the fact that judges of some of the trial courts in Kansas are retained through partisan elections, whereas the judges of the remaining trial courts stand in retention elections. Lim (2008) reported that not a single trial judge had been defeated in a retention election in Kansas, whereas 5–10% of judges running for reelection in partisan elections had lost. Gordon & Huber (2007, pp. 121–27) found that judges in districts using partisan elections tended to impose harsher sentences in terms of both the likelihood that the sentence involved a period of incarceration and the length of that incarceration. Lim added the partisan background of the judge to the analysis and found that the sentences of the judges facing retention elections hewed closer to the presumptive guidelines regardless of the judge’s partisan background; in partisan election districts there were differences between Democratic and Republican judges, with the former most likely to impose the harsher sentences. There is also evidence of electoral impacts on sentencing in capital cases. Four states—Alabama, Delaware, Florida, and Indiana—allow, or did allow,9 trial judges to override jury recommendations both when the jury recommends death and when the jury fails to recommend death; that is, a judge can impose the death penalty even if the jury does not recommend death. Judges in Delaware do not stand for election, trial judges in Florida stand for reelection on a nonpartisan ballot, and trial judges in Alabama and Indiana stand in partisan elections.10 Table 1 shows the patterns of overrides for the four states through mid-2011. The statistics in the table indicate that 9Indiana abolished the life-to-death override in 2002. 10In Florida and Indiana, appellate judges are subject to retention elections. www.annualreviews.org • Impact of Judicial Elections 357 Table 1 Death penalty overrides (Radelet 2011) State Life to death Death to life Alabama 98 9 Delaware 1 12 Floridaa 166 91 Indiana 9b 9 aAll of the life-to-death overrides in Florida occurred prior to 2000; 67 of the death-to-life overrides occurred prior to 2000. bThis represents eight individuals because one defendant was tried twice, with the jury both times failing to recommend death and then the judge imposing the death sentence. elections appear to inﬂuence the action of trial judges in capital cases: The overall pattern supports the conclusion that judges facing reelection are attuned to the risks of being labeled soft on crime, and to limit that risk they often choose to demonstrate their toughness in the most visible cases on their docket, those involving a possible death sentence. However, it is possible that some of the variation among the four states reﬂects variation in public support for the death penalty among those states. Election Cycle Variations in Sentencing Patterns Turning to the impact of the election cycle, two studies, one using data from Pennsylvania (Huber & Gordon 2004) and one using data from the state of Washington (Berdej´o & Yuchtman 2013), looked at whether sentences were tougher when a judge was approaching his or her reelection; both studies found the hypothesized effects. However, another study using data from Pennsylvania (Cohen et al. 2015) found evidence that judges tended to shift toward the norm for their local area, with severe judges becoming less severe
and lenient judges becoming more severe as their ﬁrst reelection approached; the study did not ﬁnd such an effect for subsequent election cycles. One of the Kansas studies described previously (Gordon & Huber 2007) also examined whether there were election cycle effects, and if so, whether they depended on the type of election system used; the results showed that electoral proximity was inﬂuential in partisan election districts, but not in retention election districts. Finally, a study of life-to-death overrides in Alabama capital cases through the late 1990s found evidence that judges were more likely to override life sentences in the two years immediately before they would have to face the electorate to win a new term (Burnside 1999). This effect developed after the 1986 defeat of three California Supreme Court justices after a campaign that attacked them for their failure to uphold death sentences. EFFECTS OF SELECTION/RETENTION METHOD ON DECISIONS OF STATE SUPREME COURT JUSTICES Are the decisions of justices of state supreme courts affected by the method of selection or retention? By this I mean to ask whether justices in states using elections make different decisions on similar matters than do those in states not using elections? In this section, I also examine the three subsidiary questions: (a) whether justices in nonelection states are inﬂuenced by those controlling reappointment, (b) whether any inﬂuence of public opinion of justices’ decisions is conditioned by the nature of the retention system, and (c) whether justices’ decisions vary as a function of the election/term cycle. Some of the studies described below rely on the case as the unit of analysis, 358 Kritzer whereas others rely on the individual justice’s vote as the unit of analysis; the latter approach is necessary to determine whether variations in a justice’s behavior are related to the election cycle, the justice’s past electoral performance, or other individual characteristics. Earlier Studies Two early studies looking at multiple areas of law came to different conclusions as to whether there were differences in case outcomes depending on the selection/retention system in a state. Atkins & Glick (1974) looked at almost 5,000 decisions on the merits during 1966 and compared outcomes for a range of case types in states using partisan elections, nonpartisan elections, the Missouri plan (retention elections), legislative appointment, or gubernatorial appointment for a range of case subtypes. They found no statistically signiﬁcant differences. Pinello (1995) applied a matching approach to look at differences for three matched pairs of states in three areas of law: business law, criminal procedure, and family law; his analysis was based on approximately 170 cases mostly from the period 1960–1989. He combined as electoral states Pennsylvania, which used partisan elections for initial selection and retention elections for subsequent elections, and West Virginia, which used partisan elections; in both of these states, midterm vacancies are initially ﬁlled by gubernatorial appointment.11 His other two categories were gubernatorial selection without legislative conﬁrmation and legislative selection including gubernatorial appointment subject to legislative conﬁrmation. Although the numbers of cases for his comparisons were small, they did produce statistically signiﬁcant differences generally supporting several speciﬁc hypotheses, such as deference of legislatively selected judges to the policy preferences of the other branches. Although Pinello’s evidence does support the idea of selection/retention effects, it is hard to draw strong conclusions given the limited data and categories he employed. The best early evidence of selection/retention effects is found in studies of speciﬁc areas of judicial decision making, although the results of those studies were also mixed. Gryski et al. (1986) looked at sex discrimination cases drawn from 44 states and decided between 1971 and 1981. They found that judges in states they labeled as having appointive systems were more likely to rule on the side of the claimant than were judges in electoral states. Unfortunately, they do not explain exactly how they classiﬁed states (i.e., whether Missouri plan states were treated as electoral or appointive), nor do they control for one potentially confounding factor, the ideological orientation of the states. Other early works include a pair of studies (Hall 1992, 1995) using death penalty cases decided during the 1980s in four southern or border states, all of which used either partisan or nonpartisan elections. Those studies found that liberal justices were more likely to vote contrary to their presumed political inclinations as they approached the end of their terms, if they had won their previous election by a narrow margin, if they were running in a district rather than statewide, and/or if they had previously run for reelection. In contrast, in a study of race discrimination cases, Romero et al. (2002) found no effect at all of selection method using the four categories of partisan election, nonpartisan election, the Missouri plan, and
legislative or gubernatorial selection. Their analysis was based on 126 cases decided between 1956 and 1996, which they located through a West Key Number System search. 11For 40 years, starting in the mid-1970s, the tradition in Pennsylvania was that those appointed to ﬁll a vacancy did not run for the seat in the subsequent election. This tradition was broken in 2015, when an appointee ran in an election to ﬁll three seats; that appointee lost in the primary election. www.annualreviews.org • Impact of Judicial Elections 359 Later Studies Several later studies have used the State Supreme Court Data Project (SSCDP) data set (Brace & Hall 2001), which includes over 28,000 cases decided between 1995 and 1998 drawn from all 50 states. Shepherd (2009b) conducted the broadest analysis using the SSCDP data. She looked at the impact of retention method in 20,340 cases covering 6 broad areas of law, including business disputes (business versus individual), labor disputes, medical malpractice, products liability, other torts, and criminal appeals. Her basic question was whether justices’ decisions were responsive to the constituency that controlled reelection or reappointment. Her core conclusion was that “judges who face retention decisions by Republicans tend to decide cases in accord with standard Republican policy” and vice versa for judges facing retention by Democrats (Shepherd 2009b, p. 169). This was particularly true for judges who had to stand in partisan elections, but it was also true for judges who faced retention decisions by governors and legislatures. She also found that judges facing a retention constituency opposite their own presumed predilection tended to moderate their voting behavior. Finally, judges who did not have to be concerned about retention, either because they served in states without a retention process or because they were barred from seeking another term owing to mandatory retirement, were responsive to neither the retention agents nor the original selection agents. Other studies using either the SSCDP data or other data sets focus on a single legal issue, such as the death penalty, abortion, or torts. In the following discussion, I group the studies by the legal issue considered. Death penalty cases. Using the SSCDP data set, Brace & Boyea (2007) found that in the last year before retirement, justices on courts in elective states were more likely to vote to reverse in a capital case than were nonretiring justices. There was no such effect in appointive states, where the likelihood of voting to reverse was essentially the same as for retiring justices in elective states regardless of retirement plans or requirements. They also found that in states using some form of popular election as the method of retention, justices’ likelihood of voting to reverse declined in a year in which the justice was standing for election. In a separate analysis of the SSCDP data set, Brace & Boyea (2008) examined whether public support for the death penalty inﬂuenced judicial decisions and whether any such inﬂuence was conditional on the method of retention.12 The results of the analysis showed that decisions of justices facing reelection were correlated with public opinion in the justices’ states, whereas the decisions of justices in states not using elections for retention did not show a similar relationship. Also using the SSCDP data set, Hall (2014) looked speciﬁcally at the impact of mandatory retirement. She found that for justices not compelled to retire prior to what would be their next election, the likelihood of voting to reverse in a capital case decreased if elections to the state supreme court had generally been competitive, if the justice had won his or her last election with less than 55% of the vote, and if the other two branches of state government were under uniﬁed Republican control. For justices who were barred from standing again for election, these effects were reduced or absent. Canes-Wrone et al. (2014) reported an analysis based on 12,777 votes by justices in 2,078 death penalty appeals decided between 1980 and 2006. They looked at the entire period and then split the data into the years prior to the 1986 defeat of Rose Bird and two other California Supreme Court justices and the years after 1986. Their analysis controlled for the justice’s party, state public opinion, and electoral proximity. The interesting results came from the separate analyses for the 12Pinello (1995) previously reported ﬁnding that responsiveness to public opinion depended on method of retention, although his research did not have the tight focus on a particular policy area. 360 Kritzer two periods. The results for the period prior to the electoral defeats in California showed no signiﬁcant difference in the decision pattern for justices in partisan election states compared with either nonpartisan election states or nonelection states, but found that those subject to retention elections were less likely to vote to uphold a death penalty than were justices in states using partisan or nonpart
isan elections, and possibly even in nonelection states. In contrast, after 1986, justices in both nonpartisan and retention states were more likely to uphold the death penalty than were justices in partisan election states, whereas judges in reappointment states were less likely to uphold a death penalty than were judges in states using any form of election for retention. In other words, the effect of retention elections on death penalty decisions reversed in the wake of the defeat of the three California justices in the 1986 retention election. As part of their analysis, Canes-Wrone et al. (2014) also looked at whether the method of retention conditioned the effect of public opinion. In contrast to Brace & Boyea, they found that justices in both partisan election states and states where justices are subject to reappointment were responsive to public opinion, whereas those in nonpartisan and retention election states were not. When they did analyses separately for cases decided before and after the 1986 defeat of the three justices in California, they found that public opinion inﬂuenced justices only in retention states in the period up through 1986, whereas in the period after 1986 public opinion was inﬂuential under all retention systems except for nonpartisan elections. Why the two studies came to such different conclusions is unclear, but both the data employed and the modeling approaches of the two studies differed; both studies also included controls for the partisanship or ideology of the individual justice, but the measurement methods used differed. Whether any of these differences can explain the inconsistent results is unclear. Other criminal cases. Surprisingly, there has been relatively little research on the impact of retention or selection method on criminal cases other than death penalty cases (Cauthen & Peters 2003, Savchak & Barghothi 2007, Shepherd & Kang 2014). The most informative study, by Gray (2015), compared decisions in criminal cases (1995–2010) in the ﬁve states where supreme court justices were subject to reappointment by the governor and the three states where justices served without facing any retention process, either on good behavior or until reaching mandatory retirement. All eight states were in the northeast. In addition to comparing the decisions in reappointment states and nonreappointment states, the analysis looked at whether there were differences in decisions by justices in reappointment states who were not eligible for reappointment owing to mandatory retirement rules. The analysis showed that justices were deferential to the governor’s ideology when they were eligible for reappointment. However, the analysis did not include a control for the justice’s own ideology, nor did it consider whether the current governor would potentially be the one making the reappointment (i.e., whether the current governor would be barred from ofﬁce owing to term limits when the justice came up for reappointment). Abortion cases. Caldarone et al. (2009) assembled data on 131 abortion-related cases for the period 1980 to 2006. The cases came from 16 states that employed either partisan or nonpartisan elections for the retention of justices; the hybrid election states of Ohio and Michigan were grouped with nonpartisan states. Rather than looking at whether the decision was pro- or antiabortion as their dependent variable, the authors looked at whether the decision aligned or failed to align with the direction of state-level public opinion. Their analysis included controls for key case facts and other factors, such as whether the justice was within two years of the end of his or her term. The results showed that judges in nonpartisan-election states were more likely to vote consistent with state-level public preferences than were judges in partisan-election states. These results held up when state ﬁxed effects were included in the statistical model. www.annualreviews.org • Impact of Judicial Elections 361 Table 2 Decision patterns in same-sex marriage cases Decision No elections Retention elections Partisan or nonpartisan elections Total One or more favorable 6 3 1a 10b None favorable 1 4 10 15 aThe one election state with a favorable decision was Montana, where uncontested elections become retention elections; between 1988 (when Montana adopted this system) and 2012, 15 of 27 elections for the Montana Supreme Court were conducted as retention elections. bOf the 10 states with favorable decisions, 6 also had one or more unfavorable decisions. Canes-Wrone et al. (2012) looked at the likelihood of an antiabortion vote using a total of 1,233 votes by justices over the period 1980–2006 in states using some form of popular election for retention. Their model included both main effects for election type and interactions between election type and state-level public opinion, plus controls for the partisan background of the justice and various case characteristics. Although none of the main effects for type of election used for retention were statistically signiﬁcant, they did ﬁnd statistically signiﬁcant effects of similar magnitude for public opinion in
states using retention and nonpartisan elections to retain supreme court justices but no effect in states using partisan elections. This study excluded states not using popular elections for retaining state supreme court justices. Same-sex marriage cases. Kritzer (2015) identiﬁed 44 ﬁnal state appellate decisions, mostly from state supreme courts, related to same-sex marriage from the years prior to the US Supreme Court’s decision in U.S. v. Windsor. Those decisions came from 25 states. As Table 2 shows, favorable decisions came mostly from states without elections, and only one state using partisan or nonpartisan elections had a favorable decision; retention election states fell somewhere in the middle. However, as Kritzer (2015, p. 70) pointed out, nonelection states are found mostly where more liberal climates prevail, which makes it difﬁcult to attribute the pattern to the type of retention system. Torts. Kritzer (2015, pp. 92–103) used the SSCDP data to examine the impact of retention method on state supreme court decisions in tort cases.13 His analysis used over 36,000 individual votes, and he ran analyses separately for appeals brought by the original plaintiff and appeals brought by the original defendant. His models included controls for the speciﬁc type of tort case and the nature of the legal issues presented, along with judicial ideology and various statelevel factors, including a measure of state ideology (discussed in the next section). The results were inconsistent. Depending on which side appealed, the impact of type of retention system on support for the plaintiff runs in opposite directions for some methods of retention, although the effects achieve statistical signiﬁcance only for defendant appeals. Using partisan and hybrid elections combined as the reference category, in defendant appeals plaintiffs were least successful in partisan/hybrid states and most successful in nonpartisan and retention election states, with 13Brace et al. (2012) used the data from the SSCDP to examine whether the method of selection has a systematic impact on the decisions of state supreme courts in tort cases. Unfortunately, the structure of their analysis does not provide a test of whether method of selection or other selection-related factors inﬂuence the direction of either justices’ individual votes or the courts’ overall decisions. Another study (Helland & Tabarrok 2002) looked at the possible impact of selection system on awards in tort cases and reported that the awards were higher in states where trial judges were elected in partisan elections; however, given that the awards were made by juries, it is not clear what causal mechanism might be linking judicial selection/retention to jury awards. 362 Kritzer nonelection states falling somewhere in between. In contrast, for plaintiffs’ appeals, none of the coefﬁcients for retention system differed signiﬁcantly from zero. It was not clear why there should be such differences depending on the appellant. Kritzer’s study also included variables for election cycle effects and mandatory retirement. There was no indication of any election cycle effects, but there were some inconsistent results regarding the effect of not being able to seek an additional term owing to mandatory retirement. In one speciﬁcation, justices barred from running for another term were less likely to ﬁnd in favor of the original plaintiff, and this was true for both plaintiff and defendant appeals. However, in another speciﬁcation, the effect for defendant appeals was oppositely signed and the effect for plaintiff appeals was nonsigniﬁcant, although the magnitude of the coefﬁcient was actually larger than in the other speciﬁcation.14 Public opinion polls relatively infrequently ask about the public’s view of tort law, and it is not clear what questions would accurately gauge public support for a proplaintiff or prodefense approach to tort law decisions. Because of this problem, Kritzer used a measure of state-level political ideology (Wright et al. 1985) as a proxy for whether the public would support a liberal (proplaintiff ) or conservative (prodefense) approach to tort law. He found a consistent pattern that political liberalism predicted a tendency to vote proplaintiff in plaintiff-initiated appeals in states using nonpartisan elections for retention; the pattern did not hold for defendant-initiated appeals. There was some evidence of a similar effect in defendant-initiated appeals in partisan-election states. There was also some evidence of an inverse relationship for plaintiff appeals in states not using elections. The inconsistencies reported by Kritzer make it difﬁcult to draw ﬁrm conclusions about the impact of elections, both directly and indirectly, on the decisions of state supreme court justices. Government-related cases. In a study that makes clear the importance of focusing on the retention constituency even in appointive systems, Shepherd (2009a) used the SSCDP data set to look at civil cases in which the state government is a party. She found that justices who would retain their seat through reappointment by the
governor or legislature were more likely to vote for the government litigant than were judges on permanent appointments (life tenure or tenure until mandatory retirement age) or those who would have to stand for reelection. This effect was particularly strong for justices subject to legislative reappointment when deciding cases involving the legislature as a litigant, and the effect became stronger as reselection approached. A second study ( Johnson 2015) looked at justices’ decisions in 235 state supreme court cases involving challenges to executive power for the period 1980–2010. One of the variables was retention method, and the question relevant here is whether justices were more likely to vote in favor of executive power if reappointment would be by the governor. The results were mixed, with one model showing a possible relationship. The author’s model did not include controls for potentially relevant justice-related variables, for example, the party or ideology of the justice, the length of the justice’s term, whether the justice could seek another term, or where the justice was in his or her term cycle. Research on federal court judges’ decisions concerning challenges to executive orders found that judges were most inclined to uphold executive orders of the president who had appointed the judge and least likely to uphold orders by presidents not of the party of the president who appointed the judge (see Howell 2003). This suggests that including some justice-speciﬁc variables might have produced better evidence of a retention-method effect. 14The different speciﬁcations reﬂected how the observations were clustered, either by case or by justice. www.annualreviews.org • Impact of Judicial Elections 363 Effect of Type of Selection/Retention System: Summary The various analyses show that the type of retention system does have some measurable effects on the decisions that justices and judges make. However, the various studies make it clear that these effects are likely to occur in cases involving issues that are salient to the judge’s or justice’s retention constituency. This linkage is made particularly clear by two of the patterns found in various studies: (a) the conditional linkage to public opinion vis-`a-vis the particular issue, and (b) the tendency of any linkage to dissipate or disappear when a justice does not have to worry about retention because either the state has no retention process or the justice will reach the state’s mandatory retirement age for judges prior to the end of the justice’s current term. Although there are some statistically signiﬁcant effects of variables related to retention politics, in most cases those effects are relatively modest. The one exception is the example of death penalty overrides by trial court judges, particularly as those play out in Alabama. Interestingly, although the US Supreme Court has long upheld the life-to-death override (see Harris v. Alabama), it declined to revisit the issue in 2013, over the objection of some justices (see Liptak 2013). THE EFFECT OF ELECTION ADVERTISING Although the most often asked question regarding the impact of election campaigns concerns campaign contributions (the topic for the next section of this essay), one study (Shepherd & Kang 2014) reported an apparent effect of the volume of television advertising. Using data from 3,000 criminal appeals between 2008 and 2013 from 32 states, and controlling for the justice’s political party and various case characteristics, the authors found that the likelihood of justices deciding unfavorably for the defendant increased as the volume of television advertising increased. The authors argued that this reﬂected justices’ concerns that they might be subject to attack advertising. However, their measure of the volume of advertising did not distinguish between positive and negative advertisements and included all ads, whether focused on criminal justice or not. Extant research shows that, in contrast to presidential and congressional elections, the vast majority of television advertising in state supreme court elections is positive (Kritzer 2015). Between 2008 and 2013, only approximately 20% of all television ad airings in state supreme court elections were attack ads, and only approximately 20% of contested elections saw any attack ads. Even in elections where attack ads were broadcast, they constituted only approximately one-third (32.3%) of the total ad airings. Given these issues, it is unclear what credence to give to the results of this study. CAMPAIGN CONTRIBUTIONS AND JUDICIAL DECISIONS The elephant in the room regarding the impact of judicial elections on judicial decisions is the question of whether judges who must stand for election to retain their positions are inﬂuenced by campaign contributions. There is good evidence that the public is concerned about this question and that they are inclined to believe that such inﬂuences do exist (Geyh 2003, Gibson 2012, Jamieson & Hennessy 2007, Sample et al. 2010). Also, there is evidence that such contributions detract from the legitimacy of the courts (Gibson 2009). However, producing good evidence that campaign contributions actually change decisions has been problematic. In considering
the impact of campaign contributions, it is important to distinguish between the direct and indirect inﬂuences of those contributions. Direct inﬂuences refer to judges deciding differently than they would have in the absence of contributions, whereas indirect inﬂuences refer to the impact of contributions in determining who is on the court. 364 Kritzer Regarding the latter, there is some limited evidence that campaign contributions to judicial candidates have some impact on vote shares received by candidates (Bonneau 2006, 2007) and that restrictions on campaign funding have some impact, particularly on challengers (Bonneau & Cann 2011). It may be possible to point to speciﬁc elections where campaign expenditures—both those by the candidate’s campaign and those by outside groups supporting the candidate—seem to have affected the election outcome. Two examples one might point to are the 2004 West Virginia election and the 2008 Wisconsin election, where the winners and/or outside groups supporting the winners used campaign contributions from particular interests to mount negative campaigns against an incumbent the contributor(s) wanted to see off the bench. However, there are almost certainly as many or more examples where such efforts have failed. Despite what appear to be examples of campaign expenditures inﬂuencing election outcomes, there is no systematic evidence showing that campaign contributions regularly affect who wins judicial elections. Whereas there is only limited evidence regarding indirect effects, there is a sizeable body of research testing for direct effects of campaign contributions (Cann 2002, 2007; Cann et al. 2012; Kang & Shepherd 2011, 2013, 2015; Liptak & Roberts 2006; McCall 2001, 2003; McCall & McCall 2007; McLeod 2008; Palmer 2010; Palmer & Levendis 2008; Shepherd 2009c; Waltenburg & Lopeman 2000; Ware 1999; Williams & Dislear 2007). That research is generally consistent in showing that there is a correlation between the source of campaign contributions and a justice’s decisional propensity, although a series of articles by Kang & Shepherd (2011, 2013, 2015) based on analyses using the SSCDP data set indicated that the relationship may exist largely for justices retained through partisan elections, and that there may be some asymmetry in the relationship between Democratic and Republican justices, with the latter showing a stronger relationship. The presence of a correlation between campaign contributions and justices’ decisions does not mean that justices adjust their decisions to favor their contributors. One needs to have correlation for there to be causation, but correlation can exist without there being causation. More is needed to conclude that contributions directly inﬂuence justices’ decisions. The challenge here is what is referred to as friendly giving (Roscoe & Jenkins 2005): Contributors to campaigns tend to give money in support of candidates they believe, or at least hope, will make decisions the contributors prefer. Even if contributions are given in anticipation of favorable decisions, it does not necessarily follow that an individual’s decisions would have been different in the absence of contributions. This is a problem in studies of campaign contributions regardless of the ofﬁce involved, and there have been many efforts to look at the question in the context of congressional elections. A review of the research in the congressional setting (Baumgartner & Leech 1998, pp. 133, 134) stated that “body of research [is] infamous for its contradictory ﬁndings” and concluded that campaign contributions by interest groups “sometimes strongly inﬂuence congressional voting, sometimes have marginal inﬂuence, and sometimes fail to exert inﬂuence.” A meta-analysis of research on the impact of campaign contributions on legislative roll call voting found that only approximately one-third of the statistical tests examined were statistically signiﬁcant (Roscoe & Jenkins 2005).15 Scholars have tried several approaches to overcoming the difﬁculties in showing that judges are directly inﬂuenced by campaign contributions. For instance, two studies (Bonneau & Cann 2009, Cann 2007) employed statistical models intended to take into account predispositions and hence allow one to assess the impact of contributions beyond the indirect electoral impact they might 15In the legislative setting, interest groups may use political donations for things other than directly inﬂuencing a legislator’s vote, such as seeking to gain or maintain access for meetings, something that does not play a role in the judicial decision-making process. www.annualreviews.org • Impact of Judicial Elections 365 have. Unfortunately, both studies looked at very limited time periods, were limited to contributions from attorneys, and had technical issues related to the statistical estimation strategy.16 A second approach is to focus on justices deemed to have a strong predilection to decide a particular way and ask whether there is evidence of systematic deviation from the pred
ilection when a justice received campaign contributions from a party or the party’s lawyer on the side opposite the presumed predilection. The one study using this approach (McCall 2003) was limited to businessversus-business cases from Texas during a four-year period when all justices were conservative. The study did ﬁnd some evidence that justices were more likely to support the plaintiff’s position when they had received more in contributions from the plaintiff’s side of the case. A third approach is to ﬁnd a baseline for individual justices’ decision propensity for various types of cases. This is the approach used by Palmer & Levendis (2008; see also Palmer 2010) in their controversial (see Finch 2008, Tully & Gay 2010) study of the Louisiana Supreme Court. To assess causation, the authors compared the justices’ decisions for the plaintiff or defendant in 177 cases in which at least one member of the court received a contribution from a party or a party’s lawyer, and where there was at least one dissent in the case. Palmer & Levendis compared the votes of justices categorized into three groups: those who had received more contributions from the plaintiff, those who had received more from the defendant, and those who had received contributions from neither side. The results showed some differences for some justices, but those differences were not consistent. In the end, this study is at best suggestive that some justices might be directly inﬂuenced by campaign contributions, although if one were to generalize from the study, one would have to say that it is a minority, and probably a small minority. A fourth approach involves comparing the behavior of judges who might be directly inﬂuenced by campaign contributions and those who are not likely to be inﬂuenced. One such group would be justices whose electoral situation would free them from such a concern. Shepherd (2009c; see also Kang & Shepherd 2011) employed the SSCDP data set to compare justices barred from seeking an additional term because they would reach the mandatory retirement age prior to the end of their current term; she found some difference between retiring and potentially continuing justices, at least for justices in states using partisan elections, but the results were not entirely clear, and the pattern was by no means strong. Shepherd (2013) used another control group to try to sort out the direct inﬂuence of campaign contributions, again using the SSCDP data set. In this analysis, she focused speciﬁcally on the impact of contributions made by business interests with the idea that Republicans would not be swayed by such contributions because they were already inclined to be probusiness, whereas Democrats might be swayed if they received business contributions. She reported that contributions from business sources had a greater inﬂuence on Democratic justices than on Republican justices; importantly, she did not ﬁnd the reverse: Republicans did not evidence a stronger effect of nonbusiness contributions than did Democrats. Two major issues give pause in accepting Shepherd’s interpretation of the results. First, she reported no tests comparing whether the differences between Republicans and Democrats could be attributed to chance. Second, most of the justices facing partisan reelection campaigns in the 1990s were in the South, and at least some of these justices were business-oriented Democrats. 16The technical issue concerns the quality of the instrumental variables used in the analysis. Unless the instruments both meet the requirement of not having a causal relationship with the other dependent variable and have a substantial relationship with the dependent variable for which they are being used as an instrument, the ultimate estimate is going to be on shaky grounds (Bartels 1991); the authors of the articles using this methodology did not provide any information on the quality of the instrumental variables, and hence it is difﬁcult to know what to make of their results. 366 Kritzer CONCLUSION The extant literature on the impact of judicial elections, or more properly, the impact of how judges are selected and retained, shows that method of retention does have some effect, particularly in the context of criminal cases. At the trial level, certain types of retention methods work to the detriment of criminal defendants, particularly in states with a death penalty process that allows trial judges to impose death even after a jury fails to recommend death. There is also evidence of election cycle effects in criminal cases, and possibly in some other types of cases as well. The impact of state-level public opinion on state supreme court justices is conditioned by the retention system in both death penalty cases and abortion cases, although the results of analyses of this issue are inconsistent. Importantly, it is not just elections that lead judges to be attentive to their retention constituencies: State supreme court justices facing retention by the governor or by the legislature show a tendency to defer to the preferences of those actors. Overall, however, the effects of these types tend to be fairly modest, with the exception of the death penalty override phenomenon, particularly in one state—Alabama. On the big question of the impact of campaign contributions, there
is growing evidence that there are probably at least some modest or occasional effects. However, because of the complications involved in demonstrating a causal linkage, it is best to say that this is a question on which the jury is still out. This leads to what is probably the most important and challenging issue confronting scholars studying the impact of judicial selection/retention on judicial decisions: how to devise effective ways to assess whether campaign contributions change justices’ votes. Ultimately, the question that needs to be asked is whether having any type of retention constituency is desirable. In the American context, there is resistance to a system that fails to provide a mechanism to remove judges who stray too far from public preferences. It is hard to imagine that, if the US Constitution were to be revised, the “on good behavior” clause of Article 3 would be retained. The question ultimately is not whether judges will continue to have a retention constituency, but rather what limits and/or constraints there should be on how that constituency exercises its inﬂuence. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS This essay draws heavily on chapter 3 of the author’s book, Justices on the Ballot: Continuity and Change in State Supreme Court Elections (Cambridge University Press, 2015). I would like to thank Larry Baum, Barry Feld, and Dion Farganis for commenting on an earlier draft. www.annualreviews.org • Impact of Judicial Elections 367 LITERATURE CITED Alozie NO. 1988. Black representation on state judiciaries. Soc. Sci. Q. 69:979–86 Alozie NO. 1990. Distribution of women and minority judges: the effects of judicial selection methods. Soc. Sci. Q. 71:315–25 Alozie NO. 1996. Selection methods and the recruitment of women to state courts of last resort. Soc. Sci. Q. 77:110–26 Atkins BM, Glick HR. 1974. Formal judicial recruitment and state supreme court decisions. Am. Polit. Q. 2:427–49 Bartels LM. 1991. Instrumental and “quasi-instrumental” variables. Am. J. Polit. Sci. 35:777–800 Baum L. 2006. Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton, NJ: Princeton Univ. Press Baumgartner FR, Leech BL. 1998. Basic Interests: The Importance of Groups in Politics and in Political Science. Princeton, NJ: Princeton Univ. Press Berdej´o C, Yuchtman N. 2013. Crime, punishment, and politics: an analysis of political cycles in criminal sentencing. Rev. Econ. Stat. 95:741–56 Black RC, Owens RJ. 2016. Courting the president: how circuit court judges alter their behavior for promotion to the Supreme Court. Am. J. Polit. Sci. 60:30–43 Bonneau CW. 2006. Vacancies on the bench: open-seat elections for state supreme courts. Justice Syst. J. 27:143–59 Bonneau CW. 2007. The effects of campaign spending in state supreme court elections. Polit. Res. Q. 60:489–99 Bonneau CW, Cann DM. 2009. The Effect of Campaign Contributions on Judicial Decisions. http://papers. ssrn.com/sol3/papers.cfm?abstract_id = 1337668 Bonneau CW, Cann DM. 2011. Campaign spending, diminishing marginal returns, and campaign ﬁnance restrictions in judicial elections. J. Polit. 73:1267–80 Brace P, Boyea BD. 2007. Judicial selection methods and capital punishment in the American states. In Running for Judge: The Rising Political Financial, and Legal Stakes of Judicial Elections, ed. MJ Streb, pp. 186–203. New York: N.Y. Univ. Press Brace P, Boyea BD. 2008. State public opinion, the death penalty, and the practice of electing judges. Am. J. Polit. Sci. 52:360–72 Brace P, Hall MG. 2001. State Supreme Court Data Project. Houston: Rice Univ. Brace P, Yates J, Boyea BD. 2012. Judges, litigants, and the design of courts. Law Soc. Rev. 46:497–522 Bratton KA, Spill RL. 2002. Existing diversity and judicial selection: the role of the appointment method in establishing gender diversity in state supreme courts. Soc. Sci. Q. 83:504–18 Budziak J. 2013. Blind justice or blind ambition? The inﬂuence of promotion on decision making in
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. Through the character Marlow, Conrad traces the devastating effects of Belgium’s ivory trade on the Congolese and on Kurtz, the European trader and trade post commander for whom Marlow is searching. His account of colonial violence is recalled from yet another ship, this one traveling along the Congo River. Conrad’s story-ina-story offers a penetrating critique of Belgian colonialism. But according to his critics, he did not go far enough. Conrad “saw and condemned the evil of imperial exploitation,” writes Chinua Achebe (1988, p. 262), “but was strangely unaware of the racism on which it sharpened its iron tooth.” For Edward Said (1993, p. 24), the “world conquering attitudes” of Conrad’s white male characters, Kurtz and Marlow, remain unquestioned and unproblematized. Still, Heart of Darkness remains a remarkable achievement. What is most signiﬁcant for my purposes here is the novella’s aqueous settings. Conrad chronicles the horrors of Belgium’s ivory trade not from land—the topography most commonly evoked in studies of law and colonialism—but from the decks of two distant vessels: the Nellie, anchored on the Thames and overlooking London, “the biggest, and the greatest, town on earth,” and a steamer on the Congo River, on a journey Marlow describes as “traveling back to the earliest beginnings of the world” (Conrad 1988, pp. 7, 35). Conrad’s Heart of Darkness has garnered intermittent attention from legal historians (Benton 2010, pp. 40–41; Papke 2000; Tomlins 2009). Nevertheless, it may seem a curious way to open a review of law and settler colonialism. To begin, Conrad was writing of the Congo, a Belgian colony. Thus, he presumably had little to say of indigenous dispossession. Over the past decade, as settler colonial studies has expanded, distinctions between colony and settler colony have become increasingly pronounced. Settler colonialism, as its proponents explain, is a historical, political, and economic formation that is markedly distinct from other colonial and imperial forms (Edmonds & Carey 2013, p. 2; Veracini 2010, 2015; Wolfe 1999, 2016). Indigenous contests over land and natural resources—struggles against deterritorialization, treaty negotiations, and claims to self-determination—are the ﬁeld’s deﬁning features (Dunbar-Ortiz 2014). If colonialism formally ended with independence, settler colonialism remains ongoing today. The Congo was never intended as a place of permanent European settlement. It was a site of resource extraction and labor exploitation that centered on the economies of ivory and rubber (Hochschild 1998). Indeed, the Congo, as Conrad portrays it, endangered European health and longevity, a point brought to bear by the untimely but inevitable death of Kurtz. For over two decades, Heart of Darkness has been a touchstone in postcolonial studies, gaining prominence through Said’s (1993, 2008) ﬁeld-deﬁning scholarship. Postcolonial and settler colonial studies, many insist, are attentive to very different analytic and political concerns. Whereas extractive and administrative colonies have been the primary interest of postcolonial studies as some claim, the ﬁeld of settler colonial studies focuses on sites of European resettlement—the mainland United States, Hawai‘i, Canada, Australia, and New Zealand—where land, resources, and state sovereignty continue to be ﬁercely contested by indigenous peoples. For Patrick Wolfe (2006, p. 393, my emphasis), “settler colonialism is an inclusive, land-centered project that coordinates a comprehensive range of agencies, from the metropolitan center to the frontier encampment, with 108 Mawani a view to eliminating indigenous societies.” These literatures, critics contend, ask questions, deploy concepts, and evoke temporalities that are dissimilar, in tension, and even antithetical to one another (Byrd & Rothberg 2011, pp. 3–4; Veracini 2010, pp. 11–12). Despite their many differences, these ﬁelds share striking commonalities. Both center land, albeit in different ways, as the primary site of colonial struggle. Thus, I begin with Heart of Darkness for three reasons. First, Conrad’s novella reminds us that maritime worlds are relevant and even central to discussions of law and colonialism. Second, his emphasis on ships underscores the transoceanic circulations between metropole, colony, and settler colony, including the movements of legal forms that underpin and connect them. Finally, by foregrounding waterways, Conrad invites us to rethink the modernist and imperialist land-based assumptions to which legal histories of colonialism and settler
colonial studies remain so tightly tethered. “The ﬁrst uncontested resource that European settlers met with in North America was the ocean” (Vickers 2005, p. 8). Nonetheless, studies of European colonialism remain notably terracentric, favoring land over sea (Rediker 2014, p. 2). In histories of the so-called New World the ocean is regularly overlooked and even dismissed as an “obstacle over which the settlers had to pass in order to play their historical roles as conquerors, planters, or Christians” (Vickers 2005, p. 8). The sea does not ﬁgure as a domain of struggle in its own right (Lipmann 2015; Steinberg 2001, 2013). How might we reorient analyses of law and settler colonialism so that oceans feature more prominently in indigenous contests over land, resources, and European resettlement? How would studies of colonialism and settler colonialism deepen and expand if legal processes of deterritorialization were reconceptualized more broadly as encompassing land and sea? What if ships were not merely modes of transport but laboratories of colonial legality, a view that Conrad encourages his readers to assume? Situating law and settler colonialism within maritime worlds highlights the imperial circulations of legal regimes—including colonial and racial systems of surveillance, criminal laws, and forms of private property—that traveled transoceanically with colonial bureaucrats and imperial subjects, in their efforts to deracinate and subjugate indigenous and colonial populations (Chan et al. 2011, Mawani & Hussin 2014, Ward 2009). Centering oceans invites an analytic repositioning that emphasizes global thinking beyond nation-states and across imperial divides. To open with Conrad then is to call attention to “the forgotten space” of maritime worlds (Sekula 1995, p. 48; Sekula & Burch 2010). In Heart of Darkness, Conrad brieﬂy but suggestively comments on the violent origins and effects of European legalities. The Congolese “were called criminals and the outraged law like the bursting shells had come to them, an insoluble mystery from the sea” (Conrad 1988, p. 19). Law was crucial to Belgium’s colonial enterprise, materializing in the violence of labor contracts and regulations, and in the devastating effects of criminal legal processes on the Congolese. But in describing European law to be “an insoluble mystery from the sea,” Conrad emphasizes ocean regimes, foregrounding their signiﬁcance to land-based colonial struggles. These are connections readily overlooked in studies of law and settler colonialism. Cultures of legal authority, legitimacy, and coercion were often borrowed from maritime worlds informing and shaping registers of colonial, legal, and racial violence on land. Fittingly, Conrad opens his novella with the ﬁgure of the Captain. Aboard the ship, the Captain was the representation and materialization of sovereignty and legality. His unlimited and unquestioned authority at sea inspired racial and legal governance on land, most notably on the slave plantation (Bolster 1997; Rediker 2007, p. 188; 2014, p. 139). The review of law and settler colonialism that follows is not an exhaustive or complete survey. The focus is geographically and historically limited to British and Anglo settler colonies and to the long nineteenth century. The ﬁeld of law and settler colonialism such that it exists is not self-evident, contained, or straightforward. Rather, it uneasily straddles two overlapping but www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 109 distinct bodies of scholarship: legal histories of colonialism and settler colonial studies. In the ﬁrst section I invite them into conversation. The last decade has witnessed a proliferation of both literatures, yet there has been little dialogue between them. One difﬁculty is that their respective methods, concepts, and vernaculars are not easily translatable. Whereas settler colonial studies centers primarily, though not exclusively, on contemporary conditions, using history to trace and contextualize the social, legal, political, and ongoing effects of indigenous dispossession, legal histories of colonialism draw on archival sources and methods to explore the effects of European expansion and resettlement, historically. Though legal histories of colonialism take settler colonies as their primary sites of inquiry, many draw from imperial history and postcolonial studies, literatures that have been critiqued and even eschewed in settler colonial studies (Birla 2009; Dorsett & McLaren 2014, p. 3; Harris 2003; Mawani 2009, 2012). By placing these ﬁelds into conversation, my aim is not to reconcile their tensions but to trace their contributions, overlaps, and incommensurabilities, and
to invite ways of speaking across their analytical divides. Notwithstanding their multiple geographical, historical, and theoretical tracks, legal histories of colonialism and settler colonial studies share several underlying themes. These include an attentiveness to land over sea, as I noted earlier, and also an emphasis on national and regional scales. Building on recent global and transnational approaches and drawing inspiration from indigenous scholars, from ocean studies, and from maritime and imperial history, the second section turns to oceans as global sites of legality and connectivity (see Amrith 2013; Hau‘ofa 1994, 2008; Lipmann 2015; Steinberg 2001; Rediker 2014; Weaver 2014). Maritime worlds invite new and innovative methodological orientations—including a more expansive and uneven geography—in which to consider colonial struggles over legality, sovereignty, and territoriality (Benton 2010, p. xii). Expanding Conrad’s observations that European law was “an insoluble mystery from the sea,” I suggest that maritime legal regimes ﬁgured prominently in the juridical architecture of colonies and settler colonies. These legal connections across land and sea have been drawn most clearly in discussions of slavery (Bolster 1997, Gutoff 2006, Rediker 2007). Maritime legalities, I contend, also featured in indigenous dispossession, resource extraction, and European resettlement. The role of the sea in law and settler colonialism is a much larger project that still needs to be written. It demands far more attention than a single review can afford. Moving from the land-centered focus of the ﬁrst section, the second section considers, in a preliminary way, how oceans may reorient studies of law and settler colonialism by expanding the sites and surfaces of colonial legal power. To begin sketching the contours of an oceanic method, I turn to the Torrens system of title by registration. Initiated by Sir Robert Richard Torrens, ﬁrst in South Australia and then unevenly across Britain’s settler and extractive colonies, these legal reforms generated new regimes of private property that ﬁgured centrally in British imperial expansion, to which the deterritorialization of indigenous peoples was vital. Though title by registration has attracted considerable scholarly attention, its forms, logics, and effects have been analyzed almost exclusively through land alone (for a notable exception, see Bhandar 2015). Here, I introduce the Torrens system, not as a representative or generalizable case study, but as an illustration of the global connections and circulations that can be gleaned when historical analyses of law and settler colonialism are situated within maritime worlds. Turning sea-bound is as much about excavating new cases as it is about rereading existing ones. Thus, the second section reconsiders the familiar story of title by registration, redirecting attention from land to sea and reﬂecting on their interdependence and indivisibility. Interestingly, Torrens takes us full circle to Conrad. In 1875, the Torrens was the last composite clipper to be built in Britain (Figure 1) (Richardson 2014). From 1891 to 1893, Conrad served as its ﬁrst mate, an experience that he recalled as dramatically altering his career trajectory (Conrad 1923; Kennedy 2014, pp. 21–22). 110 Mawani Figure 1 Photograph of the clipper ship Torrens, n.d. Named after Sir Robert Richard Torrens, the Torrens was the last clipper ship to be built in Britain and one of the ﬁnest to be launched from the Sunderland dockyards. The vessel carried passengers and cargo between London and Adelaide. From 1891 to 1893, Joseph Conrad served as the ship’s ﬁrst mate. Source: National Maritime Museum, LUB/2. Lubbock Papers on the Ship Torrens, n.d.; used with permission from the National Maritime Museum, Greenwich, London. LAWS OF THE LAND The conquest of the earth, which mostly means the taking it away from those who have a different complexion or slightly ﬂatter noses than ourselves, is not a pretty thing when you look into it too much. Conrad, Heart of Darkness In Culture and Imperialism, Said (1993) foregrounds the appropriation of land as the cornerstone of European imperial expansion. Imperialism, he writes, is “thinking about, settling on, controlling land that you do not possess, that is distant, that is lived on and owned by others” (Said 1993, p. 7). If imperialism is “the practice, the theory, and the attitudes of a dominating metropolitan center ruling a distant territory,” colonialism, as Said (1993, p. 9) deﬁnes it, “is almost always a consequence of imperialism.” It entails “the implanting of settlements on distant territory.” Said (1993) was well aware that indigenous dispos
session and European resettlement were the material foundations of European empires. “Everything about human history is rooted in the earth, which has meant that we must think about habitation, but it has also meant that people planned to have more territory and therefore must do something about its indigenous residents” (Said 1993, p. 7). Despite his clear concerns with indigenous dispossession, settler colonialism is not a term Said deployed in his work, not even in his writings on Palestine. www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 111 From the 1990s onward, settler colonialism has gained in scholarly prominence, inaugurating a distinct ﬁeld of scholarly inquiry. Its exact origins are difﬁcult to locate. For decades, indigenous and nonindigenous scholars have written critically of European resettlement in Canada, Hawai‘i, Australia, and the mainland United States. Like Said (1993), many have engaged with questions of indigenous land, sovereignty, and dispossession without explicitly advancing a settler colonial framework (Deloria 2003, Huttenback 1976, Monture-Angus 1995, Silva 2004, Smith & Warrior 1996). Though the ﬁeld of settler colonial studies is not synonymous with indigenous studies, indigeneity has been its central, organizing, and deﬁning feature. “Indigeneity not only produces a set of patterning to align in certain ways within and against colonialism but provides the backdrop through which patterns make sense” (Byrd 2014b, p. 615).1 Said (1993, p. 7) deﬁnes colonialism as a project of dispossession and reterritorialization that required European empires to do “something about its indigenous residents.” Yet postcolonial studies, a literature he helped inaugurate and develop, has been the subject of considerable reproach in settler colonial studies (Byrd & Rothberg 2011; Veracini 2010; Wolfe 2011, p. 272). For Lorenzo Veracini (2010, p. 2), “colonial studies and postcolonial literatures have developed interpretive categories” to address colonialism, but “are not speciﬁcally suited for an appraisal of settler colonial circumstances.” The expansion of settler colonial studies has been, in part, a response to the perceived inadequacies of postcolonialism, especially its presumed inattention to the erasure of indigenous peoples and to permanent and large-scale European resettlement. Critiques of postcolonial studies have been many, including its historical and geographical focus on India and South Asia. The British ruled India for more than 300 years, ﬁrst under the East India Company, then under the British Raj. Though Adivasi and indigenous rights have surfaced in recent decades, India was never intended to be a settlement colony. The British saw themselves as “colonizers” and not permanent “settlers” (Desai 2011, Kolsky 2010, Parmar 2015). The preﬁx “post” has also been a point of contention. The “post” of postcolonial, Anne McClintock (1992) has long cautioned, must be an analytic orientation and not a temporal one. Yet the “post,” critics insist, despite its amendments and qualiﬁcations, remains unsuited to address the ongoing structural violence that settler colonial states inﬂict on indigenous peoples (Byrd & Rothberg 2011, p. 4; Veracini 2010). Unlike colonialism, which formally ended with independence, settler colonialism remains a continued project (Edmonds & Carey 2013, p. 2; Goldstein 2014, p. 9). As Roxanne Dunbar-Ortiz (2014, p. 8) describes it, settler colonialism is “an institution or system, [that] requires violence or the threat of violence to attain its goals. People do not hand over their land, resources, children, and futures without a ﬁght, and that ﬁght is met with violence.” In Canada, Australia, Hawai‘i, and the mainland United States, settlers arrived but never left as they did in Conrad’s Congo. Control over land and natural resources remains a persistent site of struggle today. In a relatively short period, settler colonial studies has expanded and matured into a burgeoning ﬁeld. The past several years has witnessed a proliferation of books and articles, as well as a new journal. Settler Colonial Studies is dedicated to the interdisciplinary study of indigenous dispossession, sovereignty, resistance, and resurgence and is deeply committed to an ethics of decoloniality. The journal’s historical and geographical scope is far-reaching and impressive, exploring the past and present of settler colonial politics in Canada, Australia, the United States, Hawai
‘i and more recently Palestine. Today, the breadth of Settler Colonial Studies has expanded outward and globally as contributors rethink the “frontier” as a colonial feature of global war, recast Israel’s occupation of Palestine, and analyze neoliberalism as a settler colonial formation (Lloyd & Wolfe 2016, Rana 1This review initiates a conversation between settler colonial studies and legal histories of colonialism, literatures that overlap to varying degrees with indigenous studies. However, indigenous studies is a distinct ﬁeld and is not my focus here. 112 Mawani 2014, Salamanca et al. 2012). Settler colonialism has ﬂourished as a mode of critical inquiry, one that centers the originary violence directed at indigenous peoples as the active and expanding underside of colonial states (Dunbar-Ortiz 2014, p. 230; Goldstein 2014). Notwithstanding its growing prominence, settler colonial studies has been the subject of recent criticism. For some, its emergence as an academic ﬁeld—much like the history of white studies— has obscured the long-standing and rich genealogies of indigenous writings (Bhandar & Ziadeh 2016; Snelgrove et al. 2014, p. 10). By focusing on commonalities between settler contexts, most notably the United States and Palestine, others argue that settler colonial studies has glossed over important historical and contemporary variations in political, legal, and violent forms of dispossession (Sanchez & Pita 2014). The binary thinking of settler colonial studies, which some scholars have celebrated as a deliberate, purposeful, and anticolonial approach (Wolfe 2013), has also invited critique. The imposed divisions between settler and native, colony and settler colony, and land and sea, which have deepened with the ﬁeld’s development and expansion, are unable to fully grasp the complexities of colonial power, particularly the movements of people, ideas, and legalities across administrative, extractive, and settlement colonies and European empires. I address the colony/settler colony divide below and the land/sea divide more fully in the following section. For now, let me reﬂect on the settler/native binary that has organized the ﬁeld from its inception. To be clear, the distinction between settler and native is a politically charged and important one. However, it has been analytically and historically constraining, cordoning histories of indigenous dispossession from those of slavery, indentureship, and other forced migrations (Lowe 2015, Sharma & Wright 2008). “One of the persistent questions for settler colonial studies,” Jodi Byrd (2014a, p. 153) observes, “is how to address those horizontal histories of slavery, indentureship, and diaspora that force indigenous peoples to take root elsewhere and in someone else’s land.” The settler/native binary has foreclosed these analytic possibilities by ﬂattening the asymmetrical and shifting ﬁeld of colonial struggle. For some, the descendants of slaves and forced migrants, who are not indigenous, can only be “settlers” (Lawrence & Dua 2005). Others have introduced new and qualifying terms—“creole settlers,” “Asian settlers,” and “the unsettler”—to address the historical conditions of forced migration and its fraught and uneasy relationship to indigeneity (Farred 2008; Fujikane & Okamura 2008; Jackson 2012, p. 3). Still others argue that although non-European migrants are not settlers in the same way as Europeans, they live on occupied lands and thus contribute to the expansion and consolidation of settler colonial power (Saranillio 2013, p. 283; Veracini 2010, p. 3). To avoid characterizing indigenous peoples as another ethnic or racial minority, some have rejected critical engagements with race altogether (Byrd 2011, p. xxiii). The settler/native binary raises difﬁcult questions that continue to be the subject of ongoing debate. From this brief discussion one thing is clear: Dualisms cannot grasp settler colonialism’s historical dependence on transatlantic slavery and forced non-European migration, and its political, economic, and legal connections to extractive and administrative colonies. Working with archival sources and historical methods, legal histories of colonialism have implicitly and explicitly addressed the analytic constraints imposed by the settler/native binary. One method has been to rewrite colonial histories of land, labor, and capital as tightly intertwined ( Johnson 2013, Tomlins 2010). Calls for “free” land in the so-called New World attracted European settlers, many of whom were already slave owners (Dunbar-Ortiz 2014, p. 3; Jackson 2012). African slaves were forcibly brought to the Caribbean and the mainland United
States as coerced and exploitable racial labor, to cultivate land that was violently appropriated from indigenous peoples ( Johnson 2013, p. 5). The abolition of slavery encouraged other mobilities across land and sea that explicitly connected colonies and settler colonies. Many slave-owning families moved from Caribbean plantations to the settlement colonies of Canada and Australia, where they transposed their accumulations of human and ﬁnancial capital in the aid of European www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 113 reterritorialization (Hall 2014, p. 33). Following abolition, forced migration from China and India became additional forms of racially exploited labor that was mobilized to preserve the productivity of plantation economies and the excessive wealth of Europe (Bahadur 2013, Jung 2006, Lowe 2015). In Canada and Australia, the transoceanic passage of Indian and Chinese workers produced additional regimes of racial and colonial power including new legal prohibitions on migration that were fortiﬁed through the putative vulnerability of indigenous peoples and their need for state protection (Curthoys & Lake 2006; Mawani 2009, 2012). The ongoing emphasis on “settlers” and “natives” obscures the disorderly conditions and entanglements produced by the changing objectives of imperialism, colonialism, and global capitalism. To address these shared and overlapping histories, scholars working in settler colonial studies and colonial legal history and along their edges have devised several motifs: “cacophony,” “intimacies,” and “proximities” (see Byrd 2011, Lowe 2015, Mawani 2009). “In geographical localities of the Americas, where histories of settlers and arrivants map themselves into and on top of indigenous peoples,” writes Byrd (2011, p. 53), “understanding colonialism as a cacophony of contradictorily hegemonic and horizontal struggles offers an alternative way of formulating and addressing the dynamics that continue to affect peoples as they move and are made to move within empire.” Yet efforts to situate histories of indigenous dispossession in relation to transatlantic slavery and other forms of colonial and racial violence raise serious methodological concerns regarding the politics of comparison. Drawing from Gayatri Spivak, Byrd (2011) cautions that comparison incorrectly assumes analogous forms and shared experiences of settler colonial power. “In the case of North America, Hawai‘i, and Alaska, that playing ﬁeld is not only not level between indigenous peoples and all others who have arrived from all over the world,” Byrd (2011, p. 177) reminds us, “it is, ﬁrst and foremost, comprised of indigenous lands that remain indigenous lands regardless of the colonizing state’s superseding assertion of control over them.” The “logic of elimination” that has become a hallmark of settler colonial studies also demands critical attention (Wolfe 1999; 2006, p. 387). Fortifying the settler/native binary, elimination does not sufﬁciently address the shifting, heterogeneous, and deeply contested asymmetries of colonial and legal power. During the long nineteenth century, peoples, commodities, ideas, and legalities were continuously in motion, connecting British and Anglo imperial worlds and facilitating unpredictable and unforeseeable alliances. To survive and prosper in distant, remote, and foreign outposts, colonial authorities and European colonists relied extensively on indigenous communities for knowledge, sexual companionship, and political and legal support (Merry 2000, 2001; Perry 2001; Stoler 2002; Van Kirk 1983). In some locales, indigenous peoples were enlisted into colonial bureaucracies as police ofﬁcers, translators, and intermediaries, thereby expanding the reach of colonial legal control (Nettlebeck 2016). In British Guyana, to draw but one example, British ofﬁcials depended on indigenous peoples to assist in the capture of fugitive slaves ( Jackson 2012, p. 20). The “logic of elimination” rightfully emphasizes the intensity of political and legal violence that indigenous dispossession demanded. In so doing, however, it affords far too much power to colonial states. Indigenous communities in Canada, the United States, Australia, and elsewhere have ﬁercely resisted settler colonialism in all of its manifestations: appropriation, assimilation, erasure, and death (Borrows 2002, Coulthard 2014, Harris 2002, Simpson 2014). Though the effects of European settlement have been indisputably destructive, the ongoing resilience and resurgence of indigenous languages, onto-epistemologies, and legalities suggests that settler colonialism, including its logic of elimination, was an aspiration that was never fully realized. The “vanishing Indian” was a powerful settler colonial myth and not an achievement (King 2012, p.
36). If indigeneity has been formative to settler colonial studies, law and legality have been less signiﬁcant to the ﬁeld’s development. To be clear, many scholars have actively engaged with western colonial legalities through statutory law and indigenous jurisprudence and in legal 114 Mawani contests over land and natural resources (Byrd 2011, Goldstein 2008, Povinelli 2002). Though many have emphasized colonial legalities as vital technologies in the deterritorialization and reterritorialization of indigenous lands, scholars writing in settler colonial studies have often referred to law in abstract terms—as “western,” “European,” and “colonial.” In so doing, these claims have been less attuned to the speciﬁc legal techniques and instruments through which colonialism dispossessed (Harris 2004). The point is not that law is absent from settler colonial studies. Far from it. The questions I raise are less to do with content and more to do with scale, focus, and orientation. Centering law and legality actively challenges and even undermines the orderly divides between settler/native, colony/settler colony, and land/sea, as I discuss more fully below and in section two. Legal histories of colonialism have privileged legality as a durable, malleable, and contested force in colonial and settler colonial projects. Despite the rich diversity of this scholarship—in geographical approach, historical periodization, and theoretical focus—what remains shared and consistent is its emphasis on western law. British law was vital to the expansion of colonial rule. “Lawfare,” as John Comaroff (2001, p. 306) terms it, was “the effort to conquer and control indigenous peoples by the coercive use of legal means.” Despite its clear objectives—subjugation, assimilation, and elimination—lawfare “had many theatres, many dramatis personae, many scripts” (Comaroff 2001, p. 306). Its goals may have been clear, but its effects were variegated and unpredictable. Juridical regimes facilitated colonial extraction and European resettlement through a wide repertoire of legal concepts, including sovereignty, jurisdiction, expediency, and justice. Laws populated empires not with “settlers” and “natives” alone, but also with “slaves” and “indentures,” legal subjects that were positioned against each other through shifting conceptions of freedom and uneven and unequal rights ( Jung 2006). These colonial legal taxonomies were racially and territorially inscribed, organizing cities, towns, and encampments, dividing white spaces from reserves and townships, and in ways that determined who had legal rights, who was exploitable, and who could be killed with impunity (Gomez 2007, Mawani 2009, Merry 2000, Stoler 2002). Attempts to “eliminate” indigenous peoples, through dispossession, assimilation, incorporation, and death, relied on legal processes that were themselves a fulcrum of struggle that did not always achieve their desired or stated objectives. Advocates of settler colonial studies contend that postcolonial studies has been dominated by an India and South Asia focus. However, this charge does not hold true for legal histories of colonialism. Though not explicitly evoking a settler colonial frame, much of this literature has focused on settler colonies, including Hawai‘i, Canada, Australia, New Zealand, and the mainland United States (Dorsett & Hunter 2010, Goldberg-Hiller & Silva 2011, McLaren 2011, McLaren et al. 2005, Merry 2000, Silva 2004, Tomlins 2010). Building on the work of indigenous legal scholars who maintain that indigenous law was ever-present, and foregrounding the struggles waged by indigenous peoples against European and western laws, legal historians and historical anthropologists have characterized settlement colonies as dynamic, unstable, and difﬁcult to govern (Borrows 2002, Douglas & Finnane 2012, Merry 2001, Silva 2004). More recently, scholars have drawn important connections between extractive colonies and settler colonies, examining the circulations of law, legality, and authority and exploring questions of “indigeneity” beyond settler colonial contexts, most notably India and Southeast Asia (Desai 2011, p. 64; Li 2010, p. 389; Mawani 2012, 2014; Parmar 2015). Given their orientation to close archival readings, legal histories of colonialism have effectively responded to several limitations of settler colonial studies. As many scholars contend, indigenous dispossession and European resettlement were never established on monolithic or uniform expressions of law, legality, or sovereignty. In the Paciﬁc, as Stuart Banner (2008, p. 3) points out, colonial practices of land acquisition were variegated
in form and effect. Whereas colonial www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 115 bureaucrats in Australia and British Columbia approached the land as “uninhabited” and “empty,” British ofﬁcials in New Zealand and Fiji tacitly acknowledged the presence of indigenous peoples. Colonies and settler colonies were never governed by a monolith of “European” or “western” law, but through a plurality of laws that drew on competing sources of legal authority (Benton & Ross 2013b; Halliday 2013, p. 262). British legalities were routinely confronted by indigenous laws and legal practices; the two coexisted uneasily and in conﬂict (Borrows 2002, Pasternak 2014). The coevalness of indigenous and European legalities, however fraught and uneven, combined with the competing jurisdictional claims of British law, meant that the day-to-day legal operations in colonial contexts were not smooth, predictable, or certain. “Whether in its competing abstractions or its competing expressions,” Christopher Tomlins (2001, p. 317) argues, “law was anything but a singularity.” Laws were applied with social and regional variation and in response to local circumstances (Tomlins 2001, p. 317). Thus, colonial jurisdictions were never empty surfaces upon which European laws were projected or imposed. They were “imperfect geographies,” already inhabited by indigenous peoples, often with ambiguous relations to metropolitan centers of imperial power and control (Benton 2010, p. 2). In their endeavors to study the overlaps and interconnections between colony and settler colony, colonial legal historians have increasingly (re)turned to “empire.” This is a framework that has long animated postcolonial studies, as Said’s (1978, 1993) work makes clear. However, for the reasons I discuss above, empire has been less prominent in the literature on settler colonialism. Drawing from the work of imperial and world historians, scholars have coined several new and renewed concepts—“webs,” “patchworks,” “connections,” “networks,” and “itineraries”—as modes of tracing the transoceanic and transcontinental movements of ideas, commodities, and legalities that European empires put into motion (Ballantyne 2002, 2014; Ballantyne & Burton 2014; Benton 2001; Laidlaw 2005; Lester 2001; Mawani & Hussin 2014; Ward 2009). Colonial bureaucrats borrowed laws from far-ﬂung places; they reworked, reinvented, and translated these legalities for the particular exigencies at hand (Metcalf 2007). The movements of imperial agents, sojourners, settlers, and indigenous peoples extended law’s reach outward, forging new political and legal cultures and communities, and additional regimes of surveillance and governance (Benton 2010, p. 3; De 2014; Duphelia-Mesthrie 2011; Hussin 2012). The mobility of law along land and sea produced wider imperial channels and novel and contested experiments that diverged from familiar and recognizable patterns of political and legal control. A “perfect settler sovereignty” was punctuated by unruly spaces, by insolent authorities, and by indigenous peoples who refused to disappear and go away (Ford 2010, p. 13; McLaren 2011). This recent and growing transnational interest is promising, particularly in its efforts to connect extractive, administrative, and settler colonies through a broader vantage point of empire. One of its primary limitations, however, is its continued focus on land. Settler colonial studies and legal histories of colonialism, as my discussion above suggests, have conceptualized land to be the primary site and surface of colonial struggle. Even in studies of ﬁshing and whaling, oceans and coastal waters feature as a backdrop rather than a domain of territoriality and a site of power in need of critical analysis (Harris 2001; Steinberg 2001, 2013). Yet maritime studies reveal that oceans were sites of sovereign and jurisdictional claims as well as domains of global and legal connectivity; laws moved transoceanically, along shipping lines and undersea telegraph cables, in ways that joined disparate peoples and regions in imperial worlds (Hussin 2012, Mawani & Hussin 2014, Ward 2009). For example, the pass system, which was used to curtail the movements of indigenous peoples in the settler colonies of the mainland United States, parts of Canada, Australia, and elsewhere, Mahmood Mamdani (2015, p. 609) reminds us, was drawn from the legal governance of slavery. “The pass system ﬁrst originated in the slave plantations of the American South and was designed to regulate the movement of slaves outside the
plantation.” Similar laws 116 Mawani were enacted to limit the movements of the Apache and other Native American communities in the US mainland before being transported and enacted in South Africa (Mamdani 2015, p. 609). In their ﬁctional and nonﬁctional writings on European empires, Conrad (1988, p. 7) and Said (1993) describe imperialism to be a “conquest of the earth.” In Heart of Darkness, Conrad characterizes “the earth” capaciously, as a composite of land, sea, and rivers, each featuring prominently, albeit differently, as actual sites of colonial and imperial violence and as places from which to witness its brutality. Building from these insights, the following section emphasizes the legal interdependence of land and sea and begins to formulate a wider and more expansive geography of colonial legal power. To do this, I turn to the Torrens system of title by registration, its maritime origins, and its uneven implementation across the British and US empires. Here, the Torrens system is intended not as an empirical or historical example, or as a representative case study. Rather, I draw on maritime worlds as a mode of rereading title by registration, as a way of repositioning it beyond land alone. An oceanic method, I suggest, emphasizes the durability of colonial power by foregrounding the entanglements of metropole, colony, and settler colony. It invites a dialogue between settler colonial studies and legal histories of colonialism, a conversation that directs attention away from the prevailing dualisms of settler/native, colony/settler colony, and land/sea, signaling their interdependence and indivisibility. A SEA OF EMPIRE Now when I was a little chap I had a passion for maps. I would look for hours at South America, or Africa, or Australia and lose myself in all the glories of exploration. At that time there were many blank spaces on the earth... Conrad, Heart of Darkness Rival empires, historian Andrew Lipmann (2015, p. 88) argues, “were ﬁrst in conﬂict over where they dropped their anchors, not where they dragged their ploughs.” Yet the literatures that comprise the ﬁeld of law and settler colonialism, as my discussion thus far suggests, have directed their attention almost exclusively to land alone. What might be gained by analyzing the sea as a site of power that shaped and was shaped by colonial, imperial, and legal struggles in its own right? How might a sharper view of maritime worlds advance debates on law and settler colonialism, integrating legal histories of colonialism with settler colonial studies? The cartographic divisions imposed by Europeans on the earth and represented in maps of South America, Africa, and Australia, the continental spaces of Marlow’s childhood fantasies, were also drawn across the seas. From the sixteenth century onward, developments in transoceanic shipping and navigation forged the global conditions that made European imperialism possible in the ﬁrst place. Imperial inscriptions on land and sea emerged out of maritime navigation and the “discovery” of the so-called New World. Latitude and longitude beneﬁtted European empires, imposing a “grid of intelligibility” onto the globe, while expanding their legal and political claims over sovereignty and jurisdiction (Benton 2010; Dorsett 2007, p. 144; Foucault 1990, p. 93). In these modernist European imaginaries, oceans were increasingly represented as “blank spaces on the earth,” emptied of people, law, and politics (Conrad 1988, p. 11; Steinberg 2001, p. 38). One of the most famous conﬂicts in the history of European imperial expansion occurred between the Portuguese and the Dutch, not on land but at sea. In the early seventeenth century, Dutch jurist Hugo Grotius [2004 (1609)] was commissioned by the East India Company to assess the legality of a maritime capture. A Portuguese carrack, the Santa Catarina, was seized by a Dutch vessel at the mouth of the Johor River, in a region that Portugal claimed to be within its www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 117 sovereign control (Borschberg 2010; Keene 2002, pp. 50–52). In 1609, Grotius’s response was published anonymously as Mare Liberum, or “free sea” (Armitage 2004). Here, he argued that the Dutch capture was entirely legal because the sea could not be held by one imperial power. Under the law of nature and the law of nations the sea was held in common to all. In a poetic reﬂection on the materiality of oceans, Grotius [2004 (1609)] drew a clear demarcation between land and sea. The physical properties of oceans
—including their ephemerality and ceaseless change—rendered them more physically similar to air than to land. Whereas land was solid, easily divisible, and thus subject to ownership, Grotius explained, air and sea were diffuse and could not be easily possessed: “[L]and through nature can become property, while the sea cannot” [Grotius 2004 (1609), p. 81]. However, Grotius did acknowledge that oceans could be sites of overlapping, conﬂicting, and competing European imperial claims. Vessels that ﬂew under particular ﬂags were representatives of the sovereign powers that backed them (Alexandrowicz 1967, p. 77; Benton 2010, p. 106; Sekula 1995). Though ships “could not mark possession,” Lauren Benton (2010, p. 136) concludes from her innovative reading of Mare Liberum, moving vessels “could signal jurisdiction and control, or the right to protect subjects and their goods.” Efforts to divide land and sea by way of European cartographies were part of a much wider global struggle for imperial and legal control of the earth. Despite the distinctions that Grotius and others imposed between “ﬁrm land” and “free sea” (Schmitt 2006), these divisions were not easily maintained in practice. As several scholars of slavery have noted, British and Anglo authorities appropriated the violent and coercive regimes of maritime worlds and applied them terrestrially in colonial and settler colonial contexts. In the nineteenth-century United States, maritime legislation aimed at controlling ship-jumping sailors was adapted and expanded to govern fugitive slaves (Gutoff 2006). The rules of the slave ship—its violent orders of work and discipline—were extended from sea to land by way of the plantation (Bolster 1997; Lowe 2015, p. 149; Rediker 2007, 2014; Walvin 2011, p. 43). Though the maritime transport of slaves may seem an obvious setting in which to explore the overlapping legal and political boundaries of land and sea, indigenous dispossession and deterritorialization, as I discuss below, is another site where the laws of the sea informed the laws of land and vice versa.2 Indigenous scholars writing of the Paciﬁc and Atlantic have problematized and even rejected the land/sea divide in important and insightful ways. In We Are the Ocean, Epeli Hau‘ofa (2008) argues very compellingly for an ocean-centric view of the world. Indigenous peoples in the Paciﬁc never deﬁned their territories in terrestrial terms alone, he explains. The sea features prominently in indigenous ontologies and cosmologies, recasting conceptions of the earth and the multiple worlds that inhabit it as an interconnected and undifferentiated whole. “There is a world of difference between viewing the Paciﬁc as ‘islands in a far sea’ and as ‘a sea of islands,’” Hau‘ofa (2008, p. 152) maintains. “The ﬁrst emphasizes dry surfaces in a vast ocean far from the centers of power. Focusing this way stresses the smallness and remoteness of the islands. The second is a more holistic perspective in which things are seen in the totality of their relationships” (Hau‘ofa 2008, pp. 152–53; Salesa 2012). The oceanic and ancestral worlds that Hau‘ofa (2008) describes were ones already mapped and traveled by indigenous seafarers (Diaz 2011). They were spaces “in which peoples and cultures moved and mingled, unhindered by boundaries of the kind erected much later by imperial powers” (Hau‘ofa 2008, p. 154). This sea-bound mobility, which has been most commonly associated with Paciﬁc Islanders, was not limited to the Paciﬁc alone. Indigenous 2It is important to note that the legal interdependence of land and sea cut both ways. According to Russell (2014, p. 108), the White Australia policy was extended from land to sea in 1904 as the “White Ocean Policy,” which was aimed at prohibiting the use of indigenous labor aboard ships carrying Australian mail. 118 Mawani peoples traveled across multiple ocean regions, along routes that have been eclipsed by a prevailing emphasis on terra ﬁrma. Inspired in part by studies of the Black Atlantic, Cherokee scholar Jace Weaver (2011, 2014) documents a forgotten history of indigenous mobilities along the Atlantic Ocean region. “Indians, far from being marginal to the Atlantic experience,” he insists, “were, in fact, as central as Africans” (Weaver 2011, p. 422). European ships “carried the wealth of the Americas away to Europe” but also “transported Indians in
a variety of capacities back and forth.” These vessels “provided for the circulation of Native ideas and technologies (like Quinine and Aspirin) around the [Atlantic] basin” (Weaver 2011, p. 454). For Weaver (2011, 2014), the Atlantic was as “Red” as it was “Black” (Gilroy 1993). The early spaces of European empires, some contend, were the decks of seagoing ships (Lipmann 2015, p. 99). British vessels, we might say, were the initial “laboratories of modernity” (Stoler & Cooper 1997, p. 5). They transported people, ideas, and commodities, while also facilitating the physical circulation of laws, juridical processes, and legal cultures (Mawani & Hussin 2014; Metcalf 2007; Ward 2009, p. 24). Traveling on British ships, colonial administrators carried existing, new, and renewed legal formats and technologies to far-ﬂung regions of imperial and inter-imperial worlds. Legal regimes were rethought and reworked over the course of protracted seaborne voyages. Laws were debated, revised, and projected, albeit not always successfully, on lands and waterways already inhabited by indigenous peoples. Repositioned in the world of imperial ships, title by registration provides an illuminating example of the interconnections, interdependence, and indivisibility of land and sea. Initiated by Sir Robert Richard Torrens, an Irish-born colonist, land reformer, and Australian politician, title by registration was a land tenure system inaugurated in the nineteenth-century colony of South Australia. Though the region was home to a large and diverse indigenous populace, British authorities declared the land as “wasted,” “unoccupied,” and “ﬁt for the purposes of colonization” (Banner 2008; Edmonds 2010, p. 38; Foster 2005, p. 249; Harris 2003). Title by registration, or the Torrens system, as it came to be known, dramatically altered land title in ways that assisted authorities in emptying the colony of its indigenous inhabitants. It transformed property ownership from a history of “possession,” by which land was transferred generationally and along a male lineage among the English aristocracy, to a modern and bureaucratic system of recordkeeping that facilitated the abstraction and commoditization of land (Bhandar 2015). Promoted through improvement, efﬁciency, and expediency, registration erased previous histories of indigenous ownership. In so doing, it made land more readily available to British settlers in South Australia and beyond (Bhandar 2015, Keenan 2016). Importantly, the Torrens system of land registry was directly inspired by maritime worlds. Before becoming a prominent politician in South Australia and serving brieﬂy as the colony’s premier, Torrens was employed as a customs ofﬁcer in the ports of London and Adelaide. For 17 years, he worked closely with imperial shipping laws, an experience that directly informed his approach to land reform (Bhandar 2015, p. 258; Torrens 1859, p. vi). Torrens drew the concept of “registry” from part II of the British Merchant Shipping Act of 1854 (Taylor 2008, p. 22). “If the comparative indivisibility in land constitutes a difﬁculty,” he wrote, “it exists in a greater degree in the ship” (Torrens 1859, p. 10). Though Torrens (1859, p. 10) was well aware of the important distinctions between landed and funded property, he insisted that “the score of difference disappears like [a] mirage upon investigating closely the nature of property in shipping.” Ships and land were equally marked by “the characteristic of individuality” (Torrens 1859, p. 10). However, the immovability of land made title by registration a system better suited to real property than to shipping. The mobility of ships, Torrens (1859, p. 11) wrote, posed a serious challenge to ownership and to recordkeeping, as vessels “may be removed beyond the ken and jurisdiction of the registering ofﬁce.” Ships that crossed the high seas entered into foreign jurisdictions in www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 119 which different laws were applicable. Despite these exigencies of jurisdiction, the “transfer and encumbrance of shipping property through the instrumentality of registration,” Torrens (1859, p. 11) remarked, “has given universal satisfaction, ensuring certainty, simplicity, and economy.” Legal reforms to land ownership, Torrens urged, needed to ensure that landed property could be transferred, sold, and recorded with the same simplicity as imperial ships. In England, the land tenure system was
unnecessarily complicated. Land was sold by deed, and changes in ownership necessitated a 60-year “chain of title” that was expensive, inefﬁcient, and outdated (Bhandar 2015, p. 269; Taylor 2008, p. 6). Flaws in previous titles were regularly transferred, documents were damaged or lost, and the entire process was overly laborious, requiring stacks of books and indexes, and relying on lawyers as experts (Taylor 2008, p. 6). As one commentator put it, the English land system was “the oldest relic of common law barbarism” (Robbins 1902, p. 283). In the case of imperial ships, the original title did not come from the Crown. It was derived from a registration system based on a detailed record of purchase and sale that Torrens wanted to replicate. One source described the process accordingly: Every ship is listed in a national registry. A page in the Register is devoted to each ship and on that page there appears its name and description, the name of the owner, and any encumbrances. A duplicate of this page in the form of a certiﬁcate is given to the owner and is his evidence of ownership no matter where he may be. It is usually kept on the ship and accordingly is frequently spoken of in literature as the “ship’s papers.” Any lien or claim against a ship is required to be noted on the original register page so that it is possible for any interested person to tell at a glance exactly the condition of the title. (Patton 1951–1952, p. 215) Under the Torrens system, land title was to follow the ownership model applied to vessels. Through registration, moveable and landed properties could be made autonomous of their previous owners, drawing their “legal legitimacy, and thus their marketability, from the singular act of registration” (Keenan 2016, p. 6). Writing was fortiﬁed as the origin of law, including the law of property (Vismann 2008). Torrens initially submitted his land registry system in South Australia, where it was adopted under the Real Property Act of 1858. “The South Australia Legislature,” Torrens (1859, p. 44) wrote enthusiastically, “has provided means of escape from the grievous yoke of the English Property Law, and the colonists are rapidly availing themselves of those means.” From the late nineteenth century onward, proposed land reforms generated considerable debate in England. Many hoped that the Torrens system would eventually inspire changes in property ownership at home (Bhandar 2015). However, jurists questioned the viability of importing a model of legal reform that originated in and was created for Britain’s colonies. English reformers “had serious and genuine misgivings about the suitability to the Old World of a system established in the New World” (Rogers 2006, p. 2). Though some regarded title by registration to be an inappropriate legal reform for England, it gained considerable traction in various parts of the British Empire and beyond. The colonial ofﬁce, for one, actively endorsed and promoted title by registration (Taylor 2008, p. 35). Torrens himself traveled to nearby colonies in Australia and New Zealand with the intention of generating further interest among his colonial counterparts. Title by registration was readily adopted in New Zealand, Tasmania, British Columbia, Hawai‘i, the Philippines, Malaya, and Massachusetts (Patton 1951–1952; Taylor 2008, p. 65). Without further research, it is difﬁcult to know why the Torrens system was adopted in some British and Anglo colonies and not others. For now, I draw two preliminary observations relevant to the argument I am making here regarding the signiﬁcance of the sea. First, New Zealand, Tasmania, British Columbia, Hawai‘i, Malaya, and the Philippines are all scattered in and around 120 Mawani the Paciﬁc Ocean region. In the nineteenth century, many ports of call were linked to South Australia through the “All-Red Routes,” a shipping line that joined British imperial territories through circuits of maritime mobility that included the conveyance of travelers and of mail (Steel 2013, p. 315). Thus, by transporting passengers, commodities, and colonial laws across the British Empire, ships operated as vehicles of territorial expansion and conquest (Russell 2014, p. 97). Second, the jurisdictions that adopted the Torrens system were home to large indigenous communities and were in high territorial demand. To be clear, I am not suggesting a direct relationship between settler colonialism and the Torrens system. There are notable exceptions that suggest otherwise. For instance, title by registration was never adopted in the mainland United States beyond Massachusetts (see Patton 1951–1952, p. 217). Moreover, it was implemented in several administrative and
extractive colonies. Through its promises of modernization, simplicity, and legal efﬁciency, the land registration system that Torrens devised did aid and extend efforts to deterritorialize indigenous peoples, in both colonies and settler colonies, in the interests of plantation economies and for European resettlement. Legal technologies of land acquisition and deterritorialization did not unfold evenly or uniformly, as is often implied. Rather, these processes operated through colonial logics and legalities that were variegated in format, if not always in effect. In nineteenth-century Australia and British Columbia, colonial authorities viewed the land as terra nullius (Banner 2008, p. 3; Edmonds 2010, p. 38; Ford 2010, p. 28; Harris 2003). Rendering previous territorial histories and relations irrelevant and even superﬂuous, the Torrens system worked alongside juridical claims to emptiness, transforming South Australia into a vacant space open for settlement. Drawing on maritime ship registries, and abstracting and commodifying land into divisible property, title by registration overwrote and obfuscated the sovereign claims of indigenous peoples (Bhandar 2015, pp. 273– 74). In Hawai‘i and the Philippines, by contrast, the Torrens system worked through cadastral surveys, which served as another register of legal abstraction. The “cadastral act” not only provided “for a survey by a Government Surveyor” but made “it the duty of a designated government ofﬁcer to require that the title to the lands in the survey shall be registered under the Torrens Act” (Patton 1951–1952, p. 218). After mapping the land, colonial authorities were to divide it into parcels, and to enter these into the land registry as “property.” The cadastral survey, as Nicholas Blomley (2003, p. 128) describes it, was a spatialization of legal violence: “In so reifying property as an abstract space, the survey and its maps played an important role in the redeﬁnition of tenurial relations in newly colonized territories.” It is tempting to argue that title by registration operated as a “logic of elimination” in settler colonies (see Bhandar 2015, p. 274). The evidence is compelling. But to do so would be to tell only part of the story, a narrative that reinscribes the very divisions between extractive and settler colonies that I seek to place into question. To be sure, the implementation of Torrens’s land reforms in British colonial territories did not abide by these political and legal divides. The process of reterritorializing indigenous lands was as crucial to the founding of plantation economies as it was to European resettlement ( Jackson 2012, Johnson 2013). The Malay archipelago, to draw but one example, was intended to be a site of resource extraction and labor exploitation, and never a place of permanent European resettlement. Yet British authorities introduced the Torrens system as a way to dispossess and relocate indigenous Malays from their ancestral lands, in efforts to expedite Britain’s experiments with rubber. Between 1876 and 1877, the India Ofﬁce, which oversaw legal, political, and economic activities in Malaya, began importing rubber trees from South America. By 1900, it was clear that these trees, which required at least six years to mature, could easily adapt to local environments. To “modernize” and “simplify” Malaya’s land ownership model, British ofﬁcials introduced the Torrens system of title by registration (Drabble 1967, p. 53; Parmer 1957, p. 7). In 1913, British authorities supplemented these land www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 121 reforms by passing the Malay Reservation Act. Following legal developments in the settler colonies of Canada and Australia, the reserve system enabled British administrators to force indigenous Malays onto small tracts of land where they were encouraged to cultivate rice but not rubber (Li 2010, p. 390). Taken together, the Torrens system and the Malay Reservation Act granted Britain the legal measures needed to secure land as private property and rubber as a British commodity. The Torrens system, as I discuss brieﬂy above, had its origins and itineraries in the world of imperial shipping. Imperial ships served as a model for land ownership and reform that then circulated with colonial authorities on seagoing vessels and along routes in the Paciﬁc Ocean region and beyond. Given the longstanding and devastating territorial effects of title by registration, contemporary scholars often forget that the Torrens system was drawn directly from maritime worlds. However, the signiﬁcance of the sea was not lost on Torrens’s nineteenth-century contemporaries. The last composite clipper to be built in Britain was named
the Torrens, after Sir Robert Richard (Richardson 2014). Built for the Australian trade and active between 1875 and 1910, the vessel was launched nearly 20 years following South Australia’s Real Property Act. By carrying British and European settlers from London to South Australia, via the Cape of Good Hope, and transporting wool and other colonial commodities on its return voyage to London, the vessel maintained and even extended the Torrens legacy (see Figure 2). In 1891, Joseph Conrad was employed as the ship’s ﬁrst mate. Between 1874 and 1894, Conrad served on 18 ships. All but the Torrens were cargo ships; all but one were British vessels (Papke 2000). As a seafarer, Conrad traveled widely along the Mediterranean, Atlantic, and Eastern Indian oceans. His maritime career and writing were deeply entangled. In 1889, Conrad began his ﬁrst novel, Almayer’s Folly. In 1890, he commanded the Rois des Belges along the Congo River (Papke 2000, p. 585; Singh 1988, p. 268). It was while recovering in England from a “persistent tropical disease,” which he contracted “on the River Congo,” that Conrad was recruited to join the Torrens’s crew (Conrad 1923, pp. 251, Figure 2 “Track of the Torrens.” Hand-drawn map of the Torrens’s 1893 voyage from London to Adelaide when Conrad was ﬁrst mate. Note that the Torrens did not make any stops on its outbound journey. Source: National Maritime Museum, JOD/78, Diary of Mrs. Margaret Colquhoun Macgillivray on a voyage on the TORRENS Clipper, 1893; used with permission from the National Maritime Museum, Greenwich, London. 122 Mawani Figure 3 The ship as “colonial laboratory”: Christmas dinner on the Torrens, 1893. The Torrens was the only passenger ship that Conrad served on. At sea, he had opportunities to meet several Englishmen with high social standing, including John Galsworthy, who would go on to win the Nobel Prize in Literature (1932). Source: National Maritime Museum, JOD/78, Diary of Mrs. Margaret Colquhoun Macgillivray on a voyage on the TORRENS Clipper, 1893; used with permission from the National Maritime Museum, Greenwich, London. 253). It was in 1891, near the end of his seafaring adventures and at the beginning of his literary ones, that Conrad made two voyages aboard the ship. On each, he boarded in London and sailed to South Australia, spending over nine months at sea (Kennedy 2014, p. 22). The Torrens marked a turning point in Conrad’s career. The ship’s launch, he recalled, was concomitant with his turn to literature (Conrad 1923, p. 253) (see Figures 3 and 4). During its 35 years at sea, the Torrens transported settlers from London to South Australia and carried Australian wool to London. As such, the Torrens was deeply implicated in the dispossession and deterritorialization of indigenous peoples. Long before South Australia was established as a colony, wool was already a thriving commodity with expanding markets in Europe. In 1836, after the colony was founded, land was sold to prospective settlers before they ever arrived on shore (Bhandar 2015, p. 268; Foster 2005, p. 249; Keenan 2016, p. 7). These processes of reterritorialization demanded new legal reforms to facilitate ownership. Title by registration worked with and alongside other legal mechanisms, assisting British administrators to achieve their objectives. To maximize the husbandry of sheep and to increase control over pastureland, the British government began issuing 14-year pastoral leases (Foster 2005, p. 250). With the growth of territorial acquisitions, the sheep population ﬂourished. By 1861, there were 20 million sheep in the Australian colonies. By 1901 this number grew to 120 million (Cashin & McDermott 2002, p. 250). Wool was promoted as an “ideal commodity” for the Australian colonies, which investors described as www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 123 Mariner and Novelist A notable link with literature has disappeared with the destruction of the Otago, which has just been scuttled off the Tasmanian coast. She was the old barque on which Joseph Conrad held his first command. It was his experiences on the Otago that started him on a writing career. Conrad left her to join the Torrens, on board which he met John Galsworthy, who read his manuscripts
and advised him to devote himself to literature. The Otago had so far outlived her usefulness that she was not worth even selling to the ship-breakers, so she was taken out to sea and sunk. g started him on a writing career. Conrad left g her to join the Torrens, on board which he g met John Galsworthy, who read his manuj scripts and advised him to devote himself y to literature. p Figure 4 According to this newspaper report (n.d.), the Torrens marked a turning point in Conrad’s life. John Galsworthy, who would become a prominent literary ﬁgure in his own right, read Conrad’s unpublished work and encouraged “him to devote himself to literature.” Source: National Maritime Museum, JOD/78, Diary of Mrs. Margaret Colquhoun Macgillivray on a voyage on the TORRENS Clipper, 1893. This image is recreated from a newspaper clipping in the diary; used with permission from the National Maritime Museum, Greenwich, London. “land-abundant, labor-scarce, [and] isolated regions” (Cashin & McDermott 2002, p. 250). The production of wool was not nearly as labor intensive as the cultivation of plantation commodities including sugar or cotton. However, it was land intensive. Both settlers and sheep demanded large swathes of land. For Wolfe (2016, p. 25), “the discovery and development of a key export commodity, Australian Merino wool,” provided “the impetus for the frontier expansion and accompanying large-scale immigration that culminated in the settler takeover of the continent.” As increasing numbers of British settlers sought domicile in South Australia and as wool became a commodity in evergreater demand in English markets, the Torrens fulﬁlled the mandate of its namesake. By transporting colonists and commodities, ships like the Torrens connected European metropoles to their exploitable outposts, suturing a dense web of maritime and terrestrial connections (Sekula 1995, p. 48). Despite the power of British imperial technologies, including seagoing vessels and colonial laws, it is crucial to remember that indigenous peoples in South Australia and elsewhere ﬁercely resisted their territorial removal. In the interests of survival, so too did some settlers. The pastoral leases introduced in 1851—seven years before the Torrens system became law in South Australia—recognized the presence of indigenous peoples. As newcomers to an inscrutable and inhospitable environment, sheep farmers and settlers in South Australia relied extensively on indigenous knowledges and on indigenous labor (Douglas & Finnane 2012; Foster 2005, p. 258; Khatun 2015). Even here, in a place repeatedly described as terra nullius, the “logic of elimination,” which has become so resilient in settler colonial studies, was applied unevenly, inconsistently, and incompletely. It was tempered by British dependence and by indigenous resistance. Turning sea-bound reveals that the Torrens—in its double life, as a land reform system and as a working clipper ship—was a vital instrument in colonial and settler colonial rule. By transporting settlers, slaves, and indentures, as well as commodities and laws, British ships joined and even united distant and disparate parts of the empire. In so doing, their maritime circulations troubled distinctions between settler/native, colony/settler colony, and “ﬁrm land”/“free sea” (Schmitt 2006). 124 Mawani AMPHIBIOUS LEGALITIES OF SETTLER COLONIALISM Watching a coast as it slips by the ship is like thinking about an enigma. There it is before you—smiling, frowning, inviting, grand, mean, insipid, or savage, and always mute with an air of whispering—Come and ﬁnd out. Conrad, Heart of Darkness In the imperial pursuit of colonial expansion and resettlement, British and colonial laws were highly mobile, traveling with colonial administrators, imperial subjects, and settlers on vessels, along sea routes and shipping lanes, connecting ocean regions and continental divides through polyglot ports of call (Benton 2010, Hussin 2012, Ward 2009). To be effective, colonial legalities required a dexterity and ﬂexibility that could easily adapt not only to multiple and changing circumstances but also to the earth’s uneven geographies, including land, sea, and waterways (Benton 2010; Burbank & Cooper 2013, p. 280). Thus, the “landed spaces on the earth’s surface,” which have drawn so much attention in legal histories of colonialism and in settler colonial studies, were only one among many sites of territoriality where struggles over colonial and imperial rule were waged (Rediker 2014, p. 2). Despite the prevalence of modernist and imperialist land-based legal imaginaries,
oceans featured prominently and even signiﬁcantly as topographies of colonial and settler colonial legalities, a point vividly materialized through my maritime repositioning of title by registration. As a seafarer-turned-writer, Conrad invites useful methodological insights and orientations toward maritime worlds. To be clear, Heart of Darkness is not a novella about the sea. However, Conrad recounts Belgium’s colonial and racial pursuits from the decks of two ships, situated discrepantly in time and space, and across British and Belgian empires. His move from land to sea, from mariner to novelist, offers a necessary perspective on the multiple and ﬂuvial topographies of European colonial rule. Building on Conrad, I call for a recentering of maritime worlds in the ﬁeld of law and settler colonialism, a shift that places British and Anglo empires within a wider, variegated, and more expansive geography. This call is as much a material reorientation as it is an analytic one. Situating debates on law and settler colonialism within aqueous settings might push beyond the ﬁeld’s persistent binaries—settler/native, colony/settler colony, and land/sea—asking different questions on perspective, position, and scale: How, when, and under what conditions does the sea matter in settler colonial struggles? When does it become more prominent than land? Under what conditions do land and sea resurface as interdependent, intertwined, and even indivisible legal spaces? These are challenging questions that cannot be addressed in a single article. In my discussion of Torrens, both as a system of land reform and as a ship, I suggest that the legal architecture of settler colonialism takes different contours and valences—much like Conrad’s coastline above—when oceans become primary points of entry and analysis. If settler colonialism is “a distinct social, cultural, and historical formation with ongoing political effects” (Edmonds & Carey 2013, p. 2), then rethinking the dispossession of indigenous peoples across land and sea can never be a historical project alone. Indigenous scholars, especially those writing of the Paciﬁc, have emphasized the interdependence of land and sea as sites of indigenous histories and cosmologies and as spaces of colonial violence (Diaz 2011, Hau‘ofa 2008). “Territorialities,” as Craig Santos Perez (2015, p. 620), a native Chamoru of Guam, explains, “are shifting currents, not irreducible elements.” This point is vividly manifest in the contemporary moment, as oceans and waterways become urgent topographies of colonial and legal contest. Fishing, whaling, ocean pollution, and the politics of water remain volatile and highly disputed sites of colonial violence where indigenous and western legalities and sovereignties remain in conﬂict (Goldberg-Hiller & Silva 2011, Harris 2001, Perry 2016, Russell 2012). Given that the earth is www.annualreviews.org • Law, Settler Colonialism, Maritime Worlds 125 composed mostly of oceans, a shift from continental to oceanic thinking might prove analytically and politically productive (Dvorak 2015, p. 616; Steinberg 2013). The global exigencies that arise from the past, organize the present, and impinge on the future demand a shift away from terra ﬁrma toward the aqueous and amphibian legalities through which settler colonial power continues to expand and ﬂourish. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS This essay has been in the thinking and writing stages for a very long time. It draws conceptually and methodologically from my forthcoming book Across Oceans of Law, to be published by Duke University Press. Many thanks to the editorial board and production editors of the Annual Review of Law and Social Science for their patience, particularly Nicole Barsamian and Megan Berens. I am grateful to Brenna Bhandar, Bonar Buffam, Antoinette Burton, Nandini Chatterjee, Eve Darian-Smith, Sarah Keenan, and an anonymous reviewer for their challenging questions and insightful suggestions on earlier versions. Special thanks to Sayeed and Zia for their questions and enthusiasm, which provided the inspiration I needed to ﬁnally ﬁnish. LITERATURE CITED Achebe C. 1988. An image of Africa: racism in Conrad’s Heart of Darkness. See Kimbrough 1988, pp. 251–62 Alexandrowicz CH. 1967. An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries). Oxford: Clarendon Amrith SS. 2013. Crossing the Bay
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neoliberalism is “also a philosophy of political democracy and the role of the state” (Schmidt & Thatcher 2013, p. 7). Neoliberalism’s practical face is best known as a set of interrelated policies intended “to increase the role of markets in regulating public life” (Evans & Sewell 2013, p. 37). Neoliberalism as a policy paradigm is best known as the Washington consensus. The term Washington consensus usually refers to a set of policies advocating economic liberalization, privatization, deregulation, depoliticization, and ﬁscal austerity, which were initially designed in the 1980s and 1990s by the International Monetary Fund (IMF), the World Bank, and the US Treasury to respond to the economic crisis in Latin America.1 Later, a similar set of policies was applied to former Communist countries in Central and Eastern Europe (CEEs).2 CEEs were global leaders in the adoption of neoliberal ideas and policies during the 1990s and 2000s. Almost all CEEs adopted neoliberal ideas and policies “at a dramatic rate” and are now among the most open economies in Europe (Orenstein 2013a, p. 375; 2013b). This was particularly true during the early transition period, often described as the period of shock therapy, when neoliberalism emerged as a virtually unchallenged ideology, strongly dominating the course of economic and political reforms in the region. CEEs largely followed the script written by the authors of the Washington consensus and implemented monetary stabilization, economic liberalization, and a radical privatization of the largely state-owned economy. During the ﬁrst two decades of transition (1989–2009), CEEs evolved into three distinct types of capitalism (Bohle & Greskovits 2007). The ﬁrst two types, present in the Baltic (Estonia, Latvia, and Lithuania) and Visegr´ad states (the Czech Republic, Poland, Hungary, and Slovakia), represented variations of neoliberal capitalism. Only the third type, found in Slovenia, represented a distinct type of neoliberalism embedded in corporativist institutions and a generous welfare state. The role of law in this ﬁrst period was geared toward the institutionalization of a particular model of market economy, where protection of property and contracts, together with the expanded role of the judiciary, was meant to provide the best guarantees for such a court-centered market economy. This was the period when CEEs were engaged in simultaneous economic and political reforms, and when CEEs’ commitment to neoliberal economics was complemented by a commitment to democratic policies (Szelenyi 2015, p. 41). Nevertheless, the law’s limiting role, often described as negative constitutionalism, clearly overshadowed its facilitating role, in the form of positive constitutionalism (Holmes 1995, Krygier 2016). In negative constitutionalism, the law ﬁgures primarily as a limiting device, as a means aimed to limit or restrain the power of 1The term was coined by John Williamson in 1989 (see Williamson 1989, p. 7). 2In the article I discuss the EU member countries from Central and Eastern Europe. 314 Bugariˇc government. Positive constitutionalism maintains that the law also has an empowering role, which, under the right conditions, can “increase the state’s capacity to focus on speciﬁc problems and mobilize collective resources for common purposes” (Holmes 1995, p. xi). CEE reformers almost completely neglected the importance of building public law structures required for more interventionist and redistributive state policies. Assigning to the law the role of undoing the socialist state was congruent with the motto of that period: no more experiments. The initial phase of shock therapy, which lasted until the mid-1990s, was later replaced with a more diverse set of neoliberal variations. During this second period of transition, the content of neoliberal policies, though almost universal in its general afﬁrmation of core neoliberal principles, varied signiﬁcantly between CEEs. There were many local adaptations of neoliberal general principles to different local contexts (Ban 2016). In such cases, the limiting role of the law was reconﬁgured to ﬁt not only EU expectations regarding its regulatory model of governance but also domestic political concerns voiced by variegated political responses to the prolonged economic stagnation that followed the shock therapy. Hence, the role of public law and various regulatory structures was strengthened but, in alignment with the EU model of horizontal industrial policy, carried mostly through various independent regulatory bodies. The varieties of neoliberalism that emerged during the ﬁrst two decades of transition show the resilience and adaptability of neoliberalism (Schmidt & Thatcher 2013). This state of affairs continued until the ﬁnancial crisis in 2008 and the euro-zone crisis, when an alternative set of
economic and political ideas emerged in the region. Neoliberal economic policies are being gradually replaced with various statist models of development, based on nationalization of banks, punitive taxation of foreign banks, and economic protectionism (Applebaum 2016). At the same time, political liberalism is being challenged by open ﬂirtation with illiberal and authoritarian forms of government (M¨uller 2014). This article traces the role of law during the ﬁrst 25 years of transition and its relationship to neoliberal policies and institutions that were put in place in CEEs in that period. It does so chronologically through three different periods of transition, during which the law assumed quite different forms and functions. If the early period shows a dominance of negative constitutionalism, the second phase exhibits a strong element of positive constitutionalism, complementing the ﬁrst. And ﬁnally, the last period, after the ﬁnancial crisis of 2008, signals a turn to authoritarian and illiberal constitutionalism. LEGAL FOUNDATIONS OF POST-COMMUNIST DEMOCRACIES: THE PRIMACY OF MARKETS AND COURTS3 The majority of the regulatory structures in contemporary CEEs were built during the age of the Washington consensus. As we know today, the Washington consensus had a strong antistatist bias. More attention was paid to courts, judges, property law, and contracts and less to administrative agencies, civil servants, and regulatory policies needed to implement various regulatory policies of the state. The neoliberal ideology underpinning the Washington consensus was antistatist in the sense that it did not provide much room for the state as a regulator of economic activity. According to the mentality of the time, “The main thing that needed to be done was to get the state out of the way, and somehow everything else would take care of itself ” (Trubek 2006, p. 85). The only role left for the state was to protect property rights, enforce contracts and criminal law, and protect against arbitrary use of governmental power. Apart from that, the 3Parts of this and next section are drawn from Bugariˇc (2014). www.annualreviews.org • Neoliberalism, Post-Communism, and Law 315 market was considered the optimal mechanism for regulating economic activity. As Kennedy (2013, p. 43) succinctly argued, the aim of the legal program of neoliberalism “was not an improved exercise of state power but to disentangle the state from the market and establish more effective restraints on government rent-seeking and public choice bickering. All this was to be done by law.” It is therefore hardly a surprise that during the initial stage of the transition, the process of building state institutions was less important than the process of economic reform, the key element of which was a process of radical privatization of state-owned enterprises. Namely, the assumption behind the process of radical privatization was that a massive sale of state property would, by itself, lead to a just and efﬁcient allocation of property rights. The reformers neglected the importance of oversight and regulation of privatization needed to prevent the development of corrupt and inefﬁcient privatization patterns. The logic behind the radical privatization was that it would somehow by itself create a new class of property owners who would in turn represent the new capitalist middle class, essential for the creation of a market economy. According to two very inﬂuential neoliberal authors, who were also actively engaged in the process of privatization in Russia, “Privatization.... offers an enormous political beneﬁt for the creation of institutions supporting private property because it creates the very private owners who then begin lobbying the government.... to create market-supporting institutions.... [Such] institutions would follow private property rather than the other way around” (Shleifer & Vishny 1998, pp. 10–11, emphasis added). However, retrospectively, nothing could be further from the truth. With almost complete absence of any regulatory institutions, rule of law, policies, or other elements of a supportive institutional environment, the process of radical privatization led to a massive theft of state property, corruption, and “capitalism with a comrade’s face” (Frydman et al. 1998, p. 42), thus beneﬁting the old nomenklatura instead of creating a new class of “real” capitalists. Even Milton Friedman, a guru of neoliberalism, when reﬂecting on post-Communist Russia, admitted, “It turns out that the rule of law is probably more basic than privatization. Privatization is meaningless if you don’t have the rule of law” (Friedman 2002, p. xviii). Moreover, as Hamm et al. (2012, p. 301) argue, radical privatization’s combined effect was to weaken “development of the very
institutions needed for governing the private sector.” As a consequence, the same authors argue in one of the ﬁrst comprehensive sociological studies of privatization in CEEs that “mass privatization negatively affected state capacity in three areas: government inefﬁciency, unofﬁcial payment/bribery, and weakened protection of property rights” (Hamm et al. 2012, p. 316). This aspect of post-Communist constitutionalism is brilliantly problematized by Gra˙zyna Sk apska in her contrast between “institutional optimism” on the one hand, which was largely based on the neoliberal understanding of market economy, and “sociological realism” on the other, which cautioned against the na¨ıve neoliberal belief that markets would take care of themselves. Instead, the realists emphasized the weakness of postcommunist governments, their lack of resources for efﬁcient implementation of law and protection of the rule of law and constitutional rights and guarantees, in circumstances of overwhelming social change. Protection of the rule of law as well as of negative rights and liberties is quite costly, and even the limited liberal state, or even especially the limited liberal state, must have the needed ﬁnancial resources to be effective. These were quite scarce after the collapse of communism. (Sk apska 2009, p. 289) Using the case of the privatization of state-owned property in the CEEs, with main focus on Poland, which is widely thought to have been the great success story of the process, Sk apska shows how a neglect of such contextual features, among them the absence of almost any kind of regulation 316 Bugariˇc of the privatization process itself, led not to a wide distribution of property rights and a smooth transition to capitalism but instead to corruption, nepotism, and clientelism as key mechanisms of privatization. The Russian example of corrupt privatizatsiya, which led to the creation of a group of oligarchs who controlled vast sectors of the Russian economy, is only the most extreme manifestation of this problem. A corrupt, kleptocratic oligarchic layer with close ties to their respective governments has emerged in CEEs as well. This social phenomenon started with privatization throughout Eastern Europe, when privileged groups close to power robbed the state. Corruption and tax evasion are an old malaise in these countries, including in the highest echelon of the political establishment, which is well-reﬂected in the major scandals involving the Croat and Romanian prime ministers (Berend & Bugariˇc 2015, pp. 771–72). But in the Polish context, for example, privatization was fairer and less corrupt, mainly due to the strong political competition of various political parties, which played a major role in preventing many negative side effects of privatization. However, it was only much later that the differences among various forms of post-Communism were acknowledged and taken seriously in the transition literature. The neoliberal hegemony, achieved primarily on the battleﬁeld of ideas (C. Ban, manuscript forthcoming), was also strengthened by direct political interventions by the Washington consensus institutions. As one early study on the transition reports, neoliberal experts deliberately weakened potential agents of industrial restructuring in the region (Amsden et al. 1994, p. 119). For example, in Poland and Hungary, the World Bank explicitly required respective governments to disempower the ministries of industry, responsible for development and industrial policy, while providing both technical and ﬁnancial assistance to ministries of privatization, which became the most effective government bureaucracies in the region. In Poland, the ministry of privatization had a special status within the government and was exempt from ceilings on civil service pay scales, which enabled it to attract the most capable staff members. Next, the World Bank imposed a de facto ban on development banking. The Polish Development Bank’s autonomy in lending directly to industry was limited by the World Bank’s loan conditions. The theory behind such institutional unbuilding was the “do nothing policy,” based on the idea that once proper institutions for the market economy had emerged, the markets would do the rest of the job. Instead of pursuing their own industrial or developmental policy, CEEs invested heavily in various structural reforms, another term used by the Washington consensus ideology, which amounted to deindustrialization rather than reindustrialization. The initial result of the Washington consensus’ big bang approach in CEEs was much lower GDP per capita; increased poverty; rising inequality; a decline in life expectancy of up to six years; and higher rates of social alienation, depression, and alcoholism. Whereas in 1988, only 2% of the population in the socialist countries of Europe lived in absolute poverty, 10 years later more than 20% did, with the rapid transition estimated to have led to between 3 and 10 million premature deaths (Drahokoupil & Myant 2010).
Although many CEE economies had regained lost ground by the mid-1990s, growth rates and GDP per capita still lagged behind those of East Asian countries. Poland is the only country in the region that managed to almost double its GDP in the period between 1989 and 2010. During the ﬁrst few years, the social shock of transformation in other countries in the region had an enormous impact, leading to a large percentage of society—in some cases as much as 20–30%—falling into poverty. As Guy Standing (1996, p. 230) argues, the welfare retrenchment in CEEs represents the ﬁrst case in history in which international ﬁnancial agencies shaped and inﬂuenced social policy reforms. This situation gradually improved, but the wage level, even counting purchasing power in the better-developed countries, is less than half of the West European standard. Income differentiation has strongly increased. The Gini coefﬁcient, which measures income diversity from 0 to 1, increased from about 0.22–0.24 to about 0.31–0.35, www.annualreviews.org • Neoliberalism, Post-Communism, and Law 317 with the increase being quite dramatic particularly in the Baltic countries, Romania, and Hungary. This was in sharp contrast with several West European and Scandinavian countries, where the income gap hardly changed and remained at the level of 0.26–0.28. Russia approached the Third World countries, with an income inequality of about 0.45. No surprise then that “growing concern about the severity of the social suffering and inequalities has forced the neo-liberal agenda onto the defensive in many parts of the region” (Standing 1996, p. 251). As we see in the next section, the negative experience of this prolonged depression and social suffering clearly affected the course of welfare reforms in the next decade. Only the Baltic states remained faithful to the neoliberal script of rolling back the (welfare) state, whereas the Visegr´ad countries and Slovenia have embedded their neoliberalisms within more or less generous welfare states (Bohle & Greskovits 2007, p. 447). The hegemony of neoliberalism was most visible and tangible in the sphere of economic reforms, where neoliberal ideas and policies enjoyed almost uncontested hegemony in the postCommunist world. Yet, the reformers were also strong democrats and supporters of human rights ideology. As Ivan Szelenyi (2015, p. 41) observes, the commitment to neoliberal economic ideals was complemented with a strong commitment to democratic policies. The early years of transition were also a time of huge constitutional experiments, during which CEEs basically had to redesign their constitutional structures from scratch (Elster et al. 1998). Following various roundtable talks, in which former Communists negotiated the details of future constitutional intricacies with newly emerging opposition leaders like Havel, Michnik, and Wał esa, most CEEs adopted new, modern, liberally inspired constitutions. Much of the attention of the reformers was devoted to such issues as electoral systems, parliamentary models, and the desired list of basic rights. Nonetheless, the emerging constitutional model had a peculiarly CEE ﬂavor. As Kennedy (2013, p. 45) argues, the focus shifted from public to private law. The law emerged as a limit on the state on the discretion of administrators and the mandate of legislators. Private rights, constitutional procedures, judicial review, international obligations—all were intended to constrain the neoliberal state. Thus, the main emphasis was less on positive constitutionalism, i.e., those aspects that enable the state to carry its own functions, than on negative constitutionalism, primarily concerned with its constraining role vis-`a-vis the state. This antistatism had a plausible explanation, since it represented a deep distrust among the leading dissidents of the past totalitarian and interventionist state. As Moyn (2014, p. 156) argues, a strange coalition between neoliberalism and human rights in CEEs can be explained by their common target and a predecessor, a developmentalist statism. Moreover, they also share key ideological building blocks: a commitment to the primacy of the individual with her fundamental human rights, which according to the human rights ideology have ontological priority vis-`a-vis the state. No surprise then that constitutional courts became one of the most powerful new institutions in the new democracies. Constitutional courts best exemplify both neoliberal and human rights preoccupation with protection of basic human rights and constraining the role of the courts in new democracies. Constitutional courts are now important veto-players in the politics of postCommunist Eastern European countries. Although under Communist Party rule constitutional courts existed in only one country (Yugoslavia), they are now a critical element in almost all CEEs. The importance of these constitutional courts continues to increase as their judgments attract widespread attention from the
legal profession and broader political audiences. The constitutional courts of Hungary, Poland, Slovakia, Slovenia, and Bulgaria emerged over a relatively short period of time as one of the most inﬂuential forms of political institutions in the region. Their power to review the constitutionality of statutes challenged the almost absolute supremacy the legislatures previously enjoyed (Schwartz 2000). The Hungarian Constitutional Court emerged as the most powerful court in the world during the 1990s, as Kim Lane Scheppele (2003, p. 227) argued. Some 318 Bugariˇc of the courts became powerful and respected institutions with a strong record of protection of many basic rights from newly adopted CEE constitutions. Interestingly, their record also shows that their case law cannot be easily subsumed under the dominant strand of negative constitutionalism characteristic of that period. The Hungarian Court, under the strong leadership of liberal Chief Justice S´olyom, issued a series of decisions in 1995 that required a modiﬁcation of the so-called Bokros plan, an IMF-required austerity program (Scheppele 2004). The Polish experience with judicial involvement in economic and social rights also “shows that there is a very signiﬁcant and quite manageable role for the judiciary in the protection of economic and social interests” (Schwartz 2000, pp. 72–73). To a lesser extent, the Slovenian, Bulgarian, and Slovak Courts also decided a number of cases protecting the social and economic rights of their citizens (Bugariˇc 2001). Nevertheless, it would be far-fetched to argue that the courts’ decisions drastically changed the course of neoliberal economic reforms in the region. As Mitchell Orenstein (2013a, p. 379) claims, not only were domestic political elites in CEEs quite eager “model-takers” willing to adopt the basic tenets of neoliberalism, they also had a very limited range of options: Ultimately, Central and Eastern European countries had few choices if they wanted to integrate into Western economic structures. They could choose to adopt neoliberal economic ideas and enjoy Western support or to adopt some alternative and lose it. For countries that wished to escape the Soviet bloc and join the European Union, there was no real choice. Adoption of neoliberal ideas was a sine qua non for membership in the Western club. Western governments and international institutions launched an enormous assistance effort to help Central and Eastern European countries implement neoliberal ideas. This effort was coordinated at the governmental level by the G-24 and organized through the IMF and World Bank, as well as the EU’s PHARE program. The neoliberal legal theory was highly formalistic. Much emphasis was placed on formal rules aimed at constraining public authority on the one hand and at creating the “right rules” for market actors on the other. CEEs created institutions that, compared to the West, are “more formal, more constraining of public authority over the economy, less open to institutional variation and less well embedded in the local institutional, social and economic context” (Kennedy 2013, pp. 44–45). As David Kennedy (2013, p. 46) argues, “the goal was less to ensure that state functionaries understood the needs of national development, than that both public and private experts understand the needs of (largely foreign) capital and are able to formulate rules to ‘open markets’ and encourage its arrival.” The importance of formal rules was so great that the law-and-development paradigm from the early 1960s was replaced with the “rule of law” model (Trubek 2006, p. 86). As Sherman (2009, p. 1264) argues, “a central characteristic of this rule of law project was the idea that the formalization of Western-style law in the developing world was sufﬁcient for promoting economic development.” Furthermore, according to the rule of law model, only one model of the rule of law was appropriate for all countries. This rule of law model was composed of a set of institutions that are typically found in the Anglo-American world. Therefore, the rule of law model was accompanied by a strong belief in the possibility of legal transplantation. One of the most ﬂawed views of the Washington consensus was that a single set of most appropriate institutions—which are typically found in Anglo-American countries, rule of law being one of them—is required for successful development. Such a na¨ıve model confused description with prescription. The real life of institutions like parliamentary democracy, corporate governance, civil service, or judicial review shows that they can assume many different forms (Unger 1996, p. 7). Only when discussed in highly abstract terms do these institutions appear to be uniform, core institutional structures (e.g., www.annualreviews.org • Neoliberalism, Post-Communism, and Law 319 independent judiciary, accountable government) that every democracy based on the rule of law must contain. With further qualiﬁcation
and speciﬁcation, it becomes clear that these institutional structures have several possible alternative forms. Nevertheless, such a simplistic model prevailed in the neoliberal thinking of the last two decades. With its pronounced emphasis on property, contracts, and the administration of the judiciary, the rule of law model almost completely disregarded the importance of the state and its many regulatory functions, i.e., the role of the executive, legislature, regulatory agencies, and civil service and the public regulation of markets. It is hardly a surprise, then, that during the initial stage of the transition, public law reforms were not given the attention they deserved. As Suleiman (2003, p. 287) argues, “one of the most striking aspects of the transition process in Central and Eastern Europe was the absence of recognition, at least in the essential phase of the transition, that a professional bureaucracy is crucial to both the consolidation of the democratic process and the imperatives of economic development.” It was only during the accession period of the EU enlargement that reforms of civil service, regulatory agencies, and anticorruption commissions emerged high on the agenda of both the CEE governments and the EU Commission. But given the prevalent mentality of the time, even the EU-initiated reforms of public law institutions could not entirely escape the dogmatic formalism of neoliberal experts. In other words, civil service reforms, anticorruption campaigns, transparency initiatives, and, more recently, creation of new developmental agencies were mostly about creating more and more new rules. If the rules did not function, then they were replaced with a new set of rules. BUILDING A NEOLIBERAL DEVELOPMENTAL STATE: VARIETIES OF NEOLIBERALISM IN CEES The second period of transition largely coincides with the period of accession to the European Union and ultimately with the EU membership of 10 CEEs in 2004 and 2007. This period was also marked by an improved global economic outlook, which helped CEEs achieve impressive economic growth in the mid-2000s, “whether or not they had imposed radical reforms” (Orenstein 2013b, p. 235). The role of law shifted from the emphasis on negative constitutionalism to various examples of positive constitutionalism concerned with the improvement of the public sector, civil service, and regulatory agencies and, interestingly, to the development of a distinct, neoliberal developmental state. The new, neoliberal developmental state, however, did not represent a radical break with the previous blind following of market fundamentalism. Core economic policies remained ﬁrmly neoliberal and market oriented, sometimes augmented only with new policies aimed at correcting so-called market failures of otherwise perfect markets. In other words, the neoliberal developmental state represented only an accommodation, a local adaptation of neoliberal doctrines to different, “actually exisiting neoliberalisms” on the ground (Hirt et al. 2013, p. 1243). Not an oxymoron, the neoliberal developmental state is characterized by a strong reliance on promarket (neoliberal) economic policies, sometimes mixed with a European Union–inspired Keynesianism via the Structural Funds and Cohesion Fund (Hirt et al. 2013, p. 1248). If during the early stage of state reforms CEEs followed a one-size-ﬁts-all approach and hastened to transplant various Western-style administrative structures without paying sufﬁcient attention to social context, and disregarding the policy relevance of such rules, this second period of transition was marked by a growing importance of “varieties of neo-liberalism” (Ban 2016). As already mentioned, CEEs evolved into three distinct types of capitalism (Bohle & Greskovits 2007). Reforms of various parts of public law, with the exception of constitutional courts and independent central banks, were not a key policy priority during the ﬁrst stage of the transition. Given 320 Bugariˇc the antistatist bias prevalent among the reformers of that time, this is not surprising. It is only during the accession negotiations with the European Union that public law reforms became an important item on the policy agenda of the CEE governments. Before that period, the neoliberal development experts were more interested in unbuilding and disestablishing prior Communist state structures than in building new ones. The EU-initiated accession negotiations with the candidate countries of CEE brought an important modiﬁcation to the previous neoliberal antistatist policy. Because a vast part of the EU administration depends on indirect administration carried out by member states, it is unsurprising that the Commission decided to scrutinize the administrative capacity of the CEE’s national administrations to apply the acquis, that is, the 80,000 pages of EU legislation that the European Union required that candidate countries fulﬁll before being admitted to the European Union. The Commission strongly insisted on the adoption of civil service legislation as a start for administrative reforms. The legalistic nature of civil service reforms can be explained by the insistence of the Commission on adoption
of civil service laws and by the prevailing legalistic tradition in CEEs. At the Commission’s insistence, most of the CEEs hurried with the adoption of civil service laws. Whereas before 1997 only Hungary, Poland, Latvia, Estonia, and Lithuania had passed civil service legislation, in the period from 1997 to 2002, all other CEEs had done so. The Slovak law from 2001 “was a formality designed to satisfy the European Union” (O’Dwyer 2002, p. 31). The preaccession civil service systems in CEEs suffered from some common problems and dysfunctions. These systems were plagued by a strong politicization of civil service; an absence of a culture of political neutrality; a lack of mobility in civil service personnel policy; decentralization and fragmentation of personnel and pay policy; the lack of a central agency responsible for the recruitment and dismissal of civil servants; poorly paid staff; and, last but not least, a poor image of the civil service. Verheijen (2003, p. 491) argues that adoption of civil service laws “has not resolved the problems of instability and politicisation and has rarely led to the development of a well-working system of long-term career development.” A World Bank (2006, p. 50) study also reports “a mixed picture of overall setbacks, especially since accession with some promising innovations, particularly in the Baltic States.” One of the setbacks has to do with the return of politicization. The study reports that “the very idea of an impartial and professional civil service, based on merit and continuity, appears to have lost its appeal to the political leadership of most of the new Member States” (World Bank 2006, p. 10). The Baltic states are an exception here. They have the least politicized senior civil service in the region. They, particularly Estonia, were heavily inﬂuenced by the Swedish and Finnish model of public administration. One of the key differences between the Scandinavian and other continental European models of public administration is a greater degree of ﬂexibility and managerialism in the ﬁrst group. CEEs, with the exception of the Baltic states, adopted the wrong strategy of administrative reforms. With an overreliance on legislation, buttressed by a strong legalistic tradition already present there, CEEs sought to adopt new civil service laws ﬁrst and reform people later. As Verheijen argued, they ﬁrst should have designed appropriate strategic approaches, invested more in training and education, and devoted more time to tackling structural problems. For example, to tackle the problem of overt politicization with almost exclusive focus on the legislative aspect of reforms is not a good strategy: “Designing and adopting civil service legislation without attacking the root causes of the problems in the administration in the ﬁrst has proved to be a highly inadequate reform strategy” (Verheijen 2003, p. 496). Depoliticization of the civil service is an immensely difﬁcult task. Most developed democracies in the West spent decades building a political culture of neutral and apolitical public administration. On the contrary, as Meyer-Sahling (2004, p. 98) shows, the political parties in the region were locked in the spiraling process of the www.annualreviews.org • Neoliberalism, Post-Communism, and Law 321 continuous politicization of civil service, where each newly elected government suspended or radically modiﬁed the administrative reforms of its predecessor. In such a climate of heightened political distrust among the key political actors, it is nearly impossible to agree and even more difﬁcult to implement any serious administrative reform. Administrative reforms in developed democracies are usually piecemeal and take several years to develop. They require the strong support of all major political forces. Without changing training and education systems ﬁrst, it is very n¨aive to believe that passing a new law would solve the problem by itself. Yet, in all CEEs we can discern an almost fetishistic focus on the production of new legislation that was often dissociated from its own implementation. Such processes often degenerated into “symbolic politics,” resulting in adoption of laws that cannot be enforced. As the example of civil service reforms shows, CEEs, with the Baltic exception, still lack a competent and professional bureaucracy that would be sufﬁciently capable and autonomous from political patronage. And yet, “promoting effective public sectors is one of the most daunting development challenges that the world faces” (Birdsall & Fukuyama 2011, p. 51). Such a bureaucracy is a prerequisite urgently needed in a country contemplating any use of newer forms of industrial policy. Quite paradoxically, as CEEs focused on formalistic rules aimed at limiting discretion and undue political inﬂuence over bureaucracy, they ended up with civil service structures that were neither sufﬁciently competent nor autonomous from
political pressure. But civil service is not the only example showing such results. A very similar pattern can be found in other areas of institutional reforms in CEEs, such as anticorruption campaigns, transparency legislation, and creation of new developmental agencies (Batory 2012, Dimitrova 2007). It is the excessive focus on rules and legislation, dissociated from policy goals and social context, that has largely contributed to the creation of such “formal structures without substance,” i.e., institutions that look similar to their Western-style counterparts but fail to produce expected results (Bugariˇc 2006). As Trubek (2009) and Kennedy (2013) argue, different theories about law and development are always embedded in different theories of political economy, which in turn means that law is embedded in different development policies. Hence, neoliberal developmental states and their legal institutions were embedded in various forms of neoliberal capitalisms that emerged in CEEs. The ﬁrst country to challenge the neoliberal prescriptions was Poland. Inspired by the program “The Strategy for Poland” (King & Sznajder 2006, p. 774), the left-center Polish government combined a pragmatic economic approach that included “heterodox” economic policies that ran against the neoliberal prescriptions, with gradual improvements in the market economy institutions. Instead of immediately privatizing the entire state sector, the Polish government implemented a commercialization of the public sector, which meant that state-owned enterprises were exposed to competitive pressure and subjected to tough budget constraints, similarly to the private sector. On the other hand, privatization was rationalized in order to help improve the double goal of microeconomic efﬁciency and maximization of government revenue. In short, “neoliberal doctrinarism was abandoned for a pragmatic approach based on economic rationalism” (Kołodko 2009, p. 2). The key architect of this “state-led transition” to liberal capitalism was Grzegorz Kołodko, a new ﬁnance minister with strong Keynesian and preindustrial leanings. Last but not least, Poland emphasized some factors that were usually neglected by the IMF, such as the importance of democratic support for the reforms, which entailed its concern for keeping unemployment low, providing beneﬁts for the unemployed, and adjusting pensions for inﬂation, and also the importance of public dialogue and social partnership with trade unions and business organizations (Stiglitz 2004, p. 181). Interestingly, such a pragmatic approach to economic policy was also continued during the Citizens’s Platform government (PO, Platforma Obywatelska), which came from a strong liberal tradition but took a more pragmatic approach to economic 322 Bugariˇc policy, deploying the state as a strategic actor when needed to protect the interests of the Polish economy (Rae 2013, p. 414). As a result, Poland was the only country in the region to almost double its GDP from 1989 to 2010. Insteadoffocusingontheneoliberalformalizedapproachtoinstitutions,thePolishgovernment adopted a more pragmatic and policy-oriented style of administrative reforms. Special attention was given to the recruitment of qualiﬁed people, special programs for teaching and training were established, and special codes/regulations on civil service were introduced. The government was doing its best to engage the nonpartisan technocrats and pay them as much as the budget would allow.4 This was quite different from other CEEs, which were mostly preoccupied with building “ideal” institutions as propagated by the neoliberal doctrine. With such “imperfect” institutions, the Polish government pursued pragmatic economic policies, which in combination contributed to spectacular economic results. What the Polish case shows is that “effective institutions have to evolve indigenously, reﬂecting a country’s own political, social, and cultural realities.... Institutions such as the rule of law will rarely work if they are simply copied from abroad; societies must buy into their content” (Birdsall & Fukuyama 2011, p. 51). As Fukuyama argues, many countries, beginning with China, have developed rapidly in the absence of “good governance” institutions. But there are also countries like the United States and Britain that made the industrial revolution with governments that were substantially more corrupt and less capable than they are today (Fukuyama 2012). What matters most is that institutions are relevant and appropriate for a country’s development goals and policies, and that institution building is not treated as something prior to or separate from the formulation of development policies. And, as the Polish case reveals, it is equally important that a country has a “right” development policy in the ﬁrst place. By rejecting the neoliberal orthodoxy of “do-nothing” industrial policy and replacing it with more pragmatic “heterodox” economic policies, Poland achieved better economic results than countries that simply followed the neoliberal advice. The second major exception to do-no
thing industrial or development policy in CEEs is the innovation policy, which was heavily promoted and supported by the EU structural funds starting in 2004. Since 2004, innovation policies in CEEs represent the most important form of industrial policy with a much more active role of the state. During the ﬁrst stage of transition, innovation policy was basically substituted for the Washington consensus policies of “structural adjustment.” Innovation policy proper was not considered important to the neoliberal development experts. Almost all economic capacity building was directed toward macroeconomic issues: “Industrial policy thinking of the early transition governments was characterized by an outspoken liberal approach, leaving structural change entirely to the market” (Torok 2007, p. 255). Already in the late 1990s, such an approach to industrial policy gradually began to shift to various forms of more horizontal innovation, technology, and regional policies, all representing an EU “implicit” version of industrial policy. All these various policies are part of the EU cohesion policy, which aims to reduce social and economic disparities and is conceptualized as “a partial counterbalance to the natural effects of the internal market by promoting a more balanced distribution of resources and economic development across the EU” (Nugent 2010, p. 339). The main policy instruments of cohesion policy are the Structural Funds and Cohesion Funds, which account for 40% of the total EU budget (€347 billion). During the 2007–2013 ﬁnancial perspective, the innovation policy as a part of a broader set of initiatives known as the “knowledge economy” became one of the key priorities ﬁnanced through the structural funds. 4Grzegorz W. Kolodko, email message to author, July 20, 2012. www.annualreviews.org • Neoliberalism, Post-Communism, and Law 323 Most CEEs made extensive use of the EU structural funds to promote their “implicit” industrial policies. For that purpose, most CEEs created special-purpose agencies: the Agency for Enterprise Development in Poland, the Slovak Innovation and Energy Agency (SIEA), the Lithuanian Science Council, the government’s technology policy agency (OMFB) in Hungary, and several ministerial executive agencies in Slovenia. Owing to the rules of EU law on structural funding requiring regional and local institutions to administer the EU funds, a multilevel, decentralized system of various implementation agencies and other bodies on the national, regional, and local level was created subsequently. As a more complex, decentralized, and collaborative framework for industrial policy was created, it was clear from the outset that more traditional, top-down, statist versions of industrial policy were ruled out in this policy area. However, as it turned out later, it was precisely this decentralized and fragmented institutional network that caused some major problems in developing successful innovation policies in the region. As one comparative study of innovation policy in the region argues, one of the major problems was caused by “increasing usage of independent implementation agencies in an already weak administrative capacity environment lacking policy skills for networking and long-term planning” (Kattel et al. 2009, p. 35). The same study reports that “almost all CEE innovation policy implementation problems go back to very weak and disorganized actors, coordination problems are rampant in policy design and innovation/industry on the ministerial level and its delivery system” (Kattel et al. 2009, p. 29). The fragmented policy-making system suffered from an acute absence of cooperation and learning between different actors like governments, industry, and research organizations. In other words, the creation of multiple independent agencies was one of the key innovation policy problems in CEEs. Although the example of innovation policy clearly shows the importance of an adequate institutional framework for a successful developmental policy, it also reveals that creating appropriate institutions is not a process separate from devising appropriate policies themselves. In other words, the structure of a neoliberal developmental state, created to promote the neoliberal agenda, turned out to be inadequate for post-neoliberal innovation/development policies. Again, as in the example of administrative reforms, CEE reformers subscribed to an unduly formalized approach to institution building, without paying enough attention to other informal features required for such collaborative and decentralized policy framework to deliver expected results. One lesson for CEEs thus seems to be that these countries should abandon the overly formalistic approach to institution building and replace it with a new approach that understands the rule of law in a more informal, pragmatic, and revisable fashion. The innovation policies in CEEs, with all their ﬂaws, represent a truncated and less ambitious version of development policy if compared to a variety of policies practiced by the new development states around the world. Unlike countries like China or Brazil, CEEs lack both institutions and policies required for a more sophisticated approach to development. The examples from this article show that although the new policies represent an important break with the neoliberal development thinking, they still continue to be inﬂuenced by a
strong residuum of the neoliberal doctrines and policies. There is still very little demand for new autonomous developmental policies in CEEs. As the case of innovation policy shows, even when they are in place, they are predominantly a result of the EU initiatives and less home driven. Despite the ﬂaws and weaknesses of the newly built neoliberal developmental states, the second period of transition was, if judged from the perspective of CEE growth rates, a success story. CEEs enjoyed uninterrupted and impressive growth until the global ﬁnancial crisis (Szelenyi 2014). Creation of all kinds of new regulatory structures complemented the purely market-driven and court-centered approach to a market economy, emblematic of the ﬁrst transition period. Nevertheless, the newly built neoliberal developmental states remained faithful to the core neoliberal 324 Bugariˇc economic principles. They challenged them only on the margins of the neoliberal program. The most radical deviation from the Washington consensus principles, the Polish case, still represented merely the state-led model to neoliberal capitalism. A common characteristic of these various neoliberal types of capitalism during the early transition period was an almost total absence of any indigenous developmental policies. A comparative study of industrial policy in the region ﬁnds that “[b]asically any government role in industrial development was challenged as a return to former policy practices, and a ‘hands-off’ pattern of industrial policy seemed to prevail in most CEECs” (Torok 2007, p. 256). Consequently, in the entire region there was very little demand for anything other than neoliberal developmental policies. Parts and pieces of industrial policy could be found in many different forms and variations, but they never developed into a more comprehensive, systematic development policy. The region’s economy is developing, but as a dependent backyard of the West. West European, US, and Japanese companies played central roles in the economic transformation of Central and Eastern Europe by establishing the banking industry and creating retail networks and modern, partly high-tech and medium high-tech industrial sectors. Economic growth, in other words, was for the most part unrelated to the effects of domestic research and development. It is therefore more appropriate to speak about the rise of a dual economy with an advanced export system and a less-developed, local sector–oriented domestic market (Berend & Bugariˇc 2015). Andreas N¨olke and Arjan Vliegenhart argue that because of their structural dependence on Western capital, knowledge, and technology, CEE economies represent a distinct type of capitalism, a dependent market economy (DME) type of capitalism. According to N¨olke & Vliegenhart (2009, p. 672), DMEs “have comparative advantages in the assembly and production of relatively complex and durable consumer goods. These comparative advantages are based on institutional complementarities between skilled, but cheap, labor; the transfer of technological innovations within transnational enterprises; and the provision of capital via foreign direct investment (FDI).” It will be quite some time before CEEs can be considered as economically “normal” and close to their Western neighbors. Hence, we can speak only about the ﬁrst chapter of transformation, the systemic change within the framework of the European Union. A second main, and deﬁnitely much longer, chapter of this process is the foundation of domestically based intensive growth rather than import of capital, knowledge, and technology carried by multinational companies. Following the 2008 ﬁnancial crisis, the economic success of CEEs was brought to a halt and in most cases even reversed. As Orenstein (2013b, p. 236) shows, “every EU-10 country entered recession in 2009, with Poland the only exception; those countries who reformed the most fared by far the worst.” The Baltic states experienced double-digit negative growth, Slovenia close to −10% negative growth. The radical openness, extreme dependence on foreign credit, and almost complete lack of domestic base, including domestic development policies, further exacerbated the already vulnerable position of these DMEs. Moreover, the ﬁnancial crisis also exposed many weaknesses of CEE political and legal institutions built during two decades of neoliberal hegemony in the region. As a consequence, CEEs are ill prepared to tackle new challenges produced by the ﬁnancial crisis. Although there is, as a result of the current economic crisis, an increased functional demand for all kinds of new regulatory policies and structures, there are only a few high-quality regulatory structures and policies in place in CEEs. The civil service is prone to politicization and corruption, the public sector (e.g., education, health care) is in grave need of modernization, and various regulatory bodies and structures (e.g., anticorruption commissions, developmental agencies) lack necessary independence and credibility. www.annualreviews.org • Neoliberalism, Post-Communism, and Law 325 INSTEAD OF A CONCLUSION: THE RISE OF AUTHORITARIAN AND ILLIBERAL CON
STITUTIONALISM As Orenstein (2013a, p. 375) argues, In today’s Central and Eastern Europe, an alternative set of economic ideas is on the march, in particular the more interventionist state capitalist ideas championed by China for the past several decades and Russia under President Vladimir Putin. Prime Minister Viktor Orban of Hungary called his approach, adopted after his 2010 election victory, the “Eastern winds” approach to economic policy, to distinguish it from Western liberalism. Moreover, Jan Werner M¨uller (2014, p. 15) argues that in CEEs “something new is emerging: a form of illiberal democracy in which political parties try to capture the state for either ideological purposes or, more prosaically, economic gains.” He points to an alarming similarity of these new forms of democracy to Putin’s “managed” democracy: “Like Moscow, the governments of these countries are careful to maintain their democratic facades by holding regular elections. But their leaders have tried to systematically dismantle institutional checks and balances, making real turnovers in power increasingly difﬁcult” (M¨uller 2014, p. 15). At the moment, the Hungarian version of illiberal democracy represents the most problematic example of this trend. The Fidesz government achieved a fundamental revision of the rules of the constitutional and political order in Hungary. In only ﬁve years (from 2010 to 2015), it managed to transform Hungary from one of the success stories of the transition from socialism to democracy into a semiauthoritarian regime based on an illiberal constitutional order by systematically dismantling checks and balances and thereby undermining the rule of law. The major deﬁciency of the new constitutional structure is that it vests so much power in the centralized executive that no real checks and balances exist to restrain this power. A newly elected far-right and populist Polish government of the Law and Justice party (PiS) is following the Hungarian path. Almost overnight, Prime Minister Beata Szydlo’s new administration packed the Constitutional Court with ﬁve judges of its own choosing and refused to swear in the three judges properly appointed by the previous government. The PiS-controlled parliament passed a law reorganizing the court, requiring a two-thirds majority for any decision to be binding, instead of a simple majority, and requiring that 13 of the 15 judges hear a given case, instead of 9. The Court has at the moment only 12 judges, thus making it impossible, according to new rules, for the Court to annul Law and Justice–backed legislation. Moreover, the so-called Repair Act on the Constitutional Tribunal, as the new amending law has been ironically called, seems to be custom-made to paralyze the Court. Cases will have to wait in a docket for at least 6 months before they are decided. But the government went even further and gave the Sejm the power to terminate a judge’s mandate, which directly contradicts the independence of the Court. The Venice Commission, an advisory body of constitutional experts, which advises the Strasbourg-based Council of Europe, issued a draft opinion strongly criticizing the Polish government that “the amendments endanger not only the rule of law, but also the functioning of the democratic system” (Venice Comm. 2016). Polish Prime Minister Szydlo told the Polish media that the Venice Commission ﬁndings were not legally binding on Poland. However, in March 2016, in a surprising move, the Polish Constitutional Tribunal struck down the provisions of the Repair Act, declaring that the Act violates the country’s constitution. The government already announced that it would ignore the Court’s ruling and refuse to publish it in the ofﬁcial Gazette, as required by the Constitution. As a consequence, it is most likely that the Court will survive this constitutional stalemate, but, according to Adam Bodnar, the human rights ombudsman at the Helsinki Foundation for Human Rights, “the question is whether its function will not be purely decorative” (Berendt 2016). 326 Bugariˇc As Jiri Pehe, a former advisor of the late Czech president Vaclav Havel, argues, three out of four Visegr´ad countries are now single-handedly ruled by populist parties that show disrespect for the rule of law and the values of liberal democracy. In Slovakia, Robert Fico, a populist and authoritarian Social Democrat, won the parliamentary election in March 2016, after campaigning on an antimigrant ticket. In order to form a majority government, he needed coalition partners. Two of them come from the far right, the Slovak National Party (SNP) and the Siet Party, whereas the fourth, the Most-Hid party, represents the Hungarian minority. In a surprising development, a neo-Nazi party, People’s Party–Our Slovakia, gained parliamentary seats for the ﬁrst time. Party chairman Marian Kotleba was chairman of the banned neo-Nazi Slovak Togetherness
-National Party, which organized anti-Roma rallies and expressed sympathy for the Slovak Nazi-puppet state during World War II. It would not be surprising if Fico’s new coalition government joins the ranks of Hungary and Poland to extend the movement toward “illiberal democracy” in postCommunist Central and Eastern Europe. Whether this new trend represents a clear break with the previous hegemony of neoliberal institutions and policies is too early to tell. Nevertheless, it shows that the period of neoliberal hegemony is deﬁnitely over and the neoliberalism is being challenged by an alternative set of authoritarian and illiberal forms of constitutionalism. As these examples of backsliding into various forms of constitutional authoritarianism in Central and Eastern Europe show, the “return to Europe” is not yet complete. Rupnik & Zielonka (2013, p. 21) offer the poignant observation that “the disturbing question is the ease with which consolidated democracies such as Hungary can experience ‘democratic regression’, reminding us that democracies by their very nature are never ‘deﬁnitely established.’” DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS I have beneﬁted from commentary and advice on earlier drafts from Ivan T. Berend, Martin Krygier, and an anonymous reviewer. LITERATURE CITED Amsden A, Kochanowicz J, Taylor L. 1994. The Market Meets Its Match: Restructuring the Economies of Eastern Europe. Cambridge, MA: Harvard Univ. Press Applebaum A. 2016. Europe’s New Right sound like the old left. Financial Times, Jan. 27 Ban C. 2016. Ruling Ideas: How Global Neoliberalism Goes Local. Oxford: Oxford Univ. Press Batory A. 2012. Why do anti-corruption laws fail in Central Eastern Europe? A target compliance perspective. Regul. Gov. 6:66–79 Berend IT, Bugariˇc B. 2015. Unﬁnished Europe: transition from communism to democracy in Central and Eastern Europe. J. Contemp. Hist. 50(4):768–85 Berendt J. 2016. Polish court strikes down law limiting its powers, inﬂaming a crisis. The New York Times, March 9 Birdsall N, Fukuyama F. 2011. The post-Washington consensus. Foreign Affairs, March/April, pp. 45–53 Bohle D, Greskovits B. 2007. Neoliberalism, embedded neoliberalism and neocorporativism: towards transnational capitalism in Central-Eastern Europe. West Eur. Polit. 30(3):443–66 Bugariˇc B. 2001. Courts as policy-makers: lessons from transition. Harvard Int. Law J. 42(1):247–88 www.annualreviews.org • Neoliberalism, Post-Communism, and Law 327 Bugariˇc B. 2006. The Europeanization of national administrations in Central and Eastern Europe: Creating formal structures without substance? In Apr`es Enlargement: Legal and Political Responses in Central and Eastern Europe, ed. W Sadurski, J Ziller, K Zurek, pp. 201–29. Florence: Eur. Univ. Inst., Robert Schuman Cent. Adv. Stud. Bugariˇc B. 2014. Law and development in Central and Eastern Europe: the neoliberal developmental state and its problems. In Law and Development of Middle-Income Countries: Avoiding the Middle-Income Trap, ed. R Peerenboom, T Ginsburg, pp. 131–55. Cambridge, UK: Cambridge Univ. Press Dimitrova A. 2007. Institutionalization of imported rules in the European Union’s new member states: bringing politics back in the research agenda. Eur. Univ. Inst. Work. Pap., RSCAS 2007/37, Eur. Univ. Inst., Florence Drahokoupil J, Myant M. 2010. The political economy of welfare reforms in Eastern Europe and Central Asia. SSRN Work. Pap. http://ssrn.com/abstract=1396736 Elster J, Offe C, Preuss UK. 1998. Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea. Cambridge, UK: Cambridge Univ. Press Eur. Comm. Democr. Through Law (Venice Comm.). 2016. Draft opinion on amendments to the Act of June 2015 on the Constitutional Tribunal of Poland. Opinion No. 833/2015, CDL (2016)003, Strasbourg, Feb. 26 Evans P, Sewell WH. 201
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c spread of corporate lawyers. A complementary approach looks more into the global processes that produce the expectation that corporate lawyers will evolve into some modern model resembling the US corporate lawyer. For this more general line of research the position of corporate lawyers in relation to the state becomes more important, as do the hierarchical and imperial relationships that are manifested in different roles and statuses for those from the core and those from the periphery. 441 Click here to view this article's online features: • Download ﬁgures as PPT slides • Navigate linked references • Download citations • Explore related articles • Search keywords ANNUAL REVIEWS Further INTRODUCTION Both the number of corporate lawyers and the size of corporate law ﬁrms have grown rapidly since the 1980s in much of the world. As trade and investment have moved into emerging markets, the topic of corporate lawyers in those markets has begun to attract the attention of scholars inside and outside of law schools. One dimension of the phenomenon is the spread of multinational global law ﬁrms. Very recently, for example, the law ﬁrm Dentons and China’s Dacheng ﬁnalized a merger that (with further mergers) points to a combined law ﬁrm of 7,300 lawyers working in approximately 130 locations in mature and emerging markets (Triedman 2015). The top ﬁve grossing global law ﬁrms, Latham & Watkins, DLA Piper, Baker & McKenzie, Skadden, and Clifford Chance (Lat 2015), all have ofﬁces in China; all but Latham & Watkins have ofﬁces in Moscow; and DLA Piper, Baker & McKenzie, and Clifford Chance have ofﬁces throughout the Middle East, at least Casablanca in North Africa, several cities in Latin America, and several cities in South and East Asia. Despite restrictions on foreign law ﬁrms, two of these ﬁrms, Baker & McKenzie and Skadden, report ofﬁces in S˜ao Paulo. None claim ofﬁces in India, but the ﬁrms have practices focusing on India based in Singapore, London, or elsewhere. White & Case, for example, posts the following on its website: “Our core India team is based in the three top markets that generate India-related cross-border matters: New York, Singapore and London” (http://www.whitecase.com/law/asia-paciﬁc/india). Nationally based ﬁrms compete with or get absorbed by the global ﬁrms, with countries like Brazil, China, and especially India in various ways seeking to protect the position of the local ﬁrms. Russia, in contrast, is wide open to foreign ﬁrms. Transnational trade agreements, notably the World Trade Organization (WTO) and the General Agreement on Trade in Services pursuant to the WTO, have also put pressure on emerging economies, including Brazil and India, to open up their markets to foreign lawyers and law ﬁrms. The legal press, including The American Lawyer and Legal Business, now regularly includes articles about mergers and acquisitions of law ﬁrms; major deals and litigation; and the reputed local and transnational leaders among law ﬁrms in Africa, Latin America, Asia, Eastern Europe, the Middle East, and the former Soviet Union. This trade press produces a constant stream of rankings in size and prestige of law ﬁrms throughout the globe, including in emerging economies. Indicative of the approach of the legal press is the following update on Africa from The American Lawyer (2015): Africa is one of the world’s ﬁnal frontiers for large law ﬁrms, but despite a burgeoning market for legal services, some local leaders still reign supreme. The continent’s six-largest ﬁrms by attorney head count are in South Africa, which perhaps not surprisingly is home to the region’s second-largest economy after oil-rich Nigeria took the top spot last year. Nigerian ﬁrms are also well represented in our Top 50 rankings, compiled with data provided by ALM Intelligence. And global giants are increasingly looking at opportunities in Africa. The scholarly literature is only just beginning to emerge and examine these developments in more depth, however, and there are still major gaps, including Africa especially (exceptions include Dezalay 2015, Klaaren 2015). Large-scale research projects under way at Harvard Law School and Stanford Law School attest to the recent interest in the topic among professors, students, and alumni of elite law schools. The phenomenon of the spread of corporate law ﬁrms invites study by academics close to US elite law also because of the role of corporate law ﬁrms in the United States. Since the late nineteenth century, corporate law ﬁrms on Wall Street, epitomized by Cravath, Swaine & Moore, Sullivan & Cromwell, and Davis Polk & Wardwell, have played double 442 Garth roles, with lawyers serving major corporations while also acting as elite statespersons involved
directly in local, state, and international governance and indirectly through their inﬂuence on the philanthropy of business tycoons like Rockefeller and Carnegie (Dezalay & Garth 2008). These lawyer-statespersons historically made the rules that both allowed their clients to thrive and provided some order and legitimacy to their clients’ behavior. These corporate lawyers prospered economically and were at the top of the legal profession’s status hierarchy. They recruited from and also developed very close ties with the Ivy League law schools. As the US market nationalized and new centers of economic and political power developed, one key component was the diffusion of the Wall Street law ﬁrm model, with ﬁrms such as Baker Botts in Houston and O’Melvany & Myers in Los Angeles coming to occupy the same position in their cities that the Wall Street ﬁrms did in New York City. It is not surprising, given this enduring role of corporate law ﬁrms and lawyers in the United States, that US businesses and lawyers going abroad have sought out and often helped to build local counterparts, and also that US leaders imbued with this approach have sought to replicate it. William Howard Taft, for example, famously sought as the ﬁrst governor of the Philippines early in the twentieth century to convert the local elite into lawyer-statespersons serving US interests and building a US-like state (Dezalay & Garth 2010). Similarly, at the time of the law and development movement of the 1960s and 1970s, the skills that the legal education reforms were supposed to bring to developing countries were those of “a ﬁrst-rate metropolitan lawyer” akin to those on Wall Street (Gardner 1980, p. 37, quoting Justice Douglas). It is natural for US academics, lawyers, and businesses, including investment bankers and business consultants, to see economic globalization—modeled in large part on the US economy—as necessitating USstyle corporate lawyers. Not surprisingly, in addition, the origins of many law ﬁrms in emerging economies can be traced to alliances between entrepreneurial locals and US expatriates with ties to US businesses investing in foreign countries (e.g., Krishnan et al. 2016). British solicitor ﬁrms, and then ﬁrms based in other countries or the product of multinational mergers, fueled the competition to serve and prosper from global business expansion into the developing world. The so-called British Magic Circle ﬁrms expanded very rapidly into global ﬁrms (Flood 2013). US ﬁrms, with a few exceptions, including especially Baker & McKenzie (Flood & Lederer 2012), expanded initially through US lawyers mainly concentrating on nonlocal law (Silver et al. 2009), but they have come more recently to compete for both local and transnational business (Faulconbridge & Muzio 2015; J. Faulconbridge & D Muzio, unpublished manuscript). At the same time, local lawyers in emerging economies have been faced with the challenge of seeking to set up their own versions of corporate law ﬁrms to compete with the global law ﬁrms, or possibly to join them. The legal press provides continuing examples of the typical division of labor whereby local ﬁrms are appreciated more for their contacts than for their expertise— “know-who versus know-how” (Dezalay & Garth 2002) (for this perception restated for North Africa, see McAteer 2015). The cutting-edge expertise comes more from the northern ﬁrms and the local contacts from the south (Dezaley & Garth 2002). Those in the emerging markets send their lawyers accordingly to get advanced degrees and apprenticeships in the north and especially in the United States (Silver 2011). Local ﬁrms know through the same logic that if they open to foreign competition, they will likely be assimilated into the global ﬁrms. As noted above, the scholarly literature on the subject of corporate law ﬁrms is just beginning to emerge. The Harvard Law School project GLEE (Globalization, Lawyers, and Emerging Economies, https://clp.law.harvard.edu/clp-research/globalization/), directed by David Wilkins, with David Trubek as codirector, focuses on the BRIC (Brazil, Russia, India, and China) countries, although not Russia to date. The project has at least two edited volumes in the process of publication, one on Brazil (Cunha et al. 2016) and one on India (Wilkins et al. 2016), and www.annualreviews.org • Corporate Lawyers in Emerging Markets 443 another one on China in the pipeline. These volumes will greatly enhance the amount of quality academic literature on corporate lawyers in emerging markets. I have drawn on what is available from this project in this essay. The available work from GLEE helps to make India and Brazil the best-studied of the countries labeled as
emerging markets. There is also a growing literature on China, largely produced by specialists in Chinese law and practice, including much recent work for the GLEE project. The Stanford Law School Center of the Legal Profession, in addition, will produce a volume on “‘Big Law’ in Latin America: Globalization and Adjustments” (http://events.stanford.edu/events/465/46517/), part of a larger study on the future of the legal profession. Rogelio P´erez Perdomo and Manuel G´omez are editing a volume on Latin America as part of this project. There is almost no academic literature on corporate law ﬁrms in Russia or in countries in Eastern Europe, however, and the same is largely true for the Middle East and Africa (recent exceptions are Dezalay 2015 and Klaaren 2015). My collaborator Yves Dezalay and I have produced comparative work on Asia, including India, Indonesia, Malaysia, and the Philippines; Latin America, including Argentina, Brazil, Chile, and Mexico; and the Middle East, mainly focused on Egypt. But the overall descriptive and theoretical picture of the phenomenon of corporate lawyers in emerging economies is not well-developed (Dezalay & Garth 1996, 2002, 2010; for fascinating recent research on Myanmar, see Tungnirun 2016). It is also changing rapidly, as exempliﬁed by the new focus on Africa. CURRENT LEGAL PROFESSION THEORIES AND APPLICATIONS IN EMERGING ECONOMIES The United States–based literature on lawyers and the legal profession brings at least four wellestablished theoretical paradigms to the study of legal globalization. Contrasting theoretical approaches from the 1980s are associated prominently on one side with Richard Abel, including collaborative works with Richard Lewis (Abel & Lewis 1988–1989), and on the other side with the work of Terrence Halliday, Lucien Karpik, and recently Malcolm Feeley (e.g., Halliday et al. 2012). Abel & Lewis’s (1988–1989) pioneering three-volume comparative work on Lawyers in Society took as a point of departure the theory that professions seek to gain monopoly control both of the markets for their services and of the supply of lawyers providing those services. The edited volumes on The Civil Law World and The Common Law World each contain chapters on emerging economies (Venezuela and Brazil for civil law and India for common law), but the chapters are notable for a lack of attention to corporate law ﬁrms. Corporate law ﬁrms are not mentioned in Gandhi’s (1988) chapter on India, and they are mentioned in only a few paragraphs in the chapters on Brazil by Falc˜ao (1988) and on Venezuela by P´erez Perdomo (1988). It is instructive that at that point corporate law ﬁrms did not ﬁgure prominently in accounts of lawyers in emerging markets. The works of Halliday, Karpik, and Feeley focus on professional organizations and their ostensible commitment to “political liberalism” (e.g., Halliday et al. 2012). Emerging economies ﬁgure prominently in their recent edited volumes, but the works focus almost entirely on the political activities of lawyers working mainly through bar associations. Whether they are corporate lawyers or not does not matter in terms of this theoretical orientation. For example, Harding & Whiting (2012) recently produced a detailed account of the role of the Malaysian Bar Association in promoting the rule of law in Malaysia, but consistent with this theoretical approach, the fact that the leaders of the bar are corporate lawyers primarily serving a foreign clientele is not deemed signiﬁcant. The third theoretical paradigm, again from the 1980s, is much more evident in today’s work on corporate lawyers in emerging markets. Within the United States, the “two-hemispheres” 444 Garth theory of Heinz & Laumann (1982) in Chicago Lawyers provides the theoretical justiﬁcation for the overwhelming concentration of legal profession scholarship on the corporate bar. The theory posits that the rise of the corporate bar in the United States gave rise to two hemispheres: one servingmainlyorexclusivelycorporationsandtheotherservingmainlyindividuals.Chicago Lawyers found that the most prestigious, best-credentialed, best-compensated, and most connected lawyers were those occupying the corporate or upper hemisphere. When Heinz et al. (2005) replicated Chicago Lawyers 20 years after the original study, the major change was that the upper hemisphere was somewhat more open to traditionally excluded groups (minorities, women, Catholics, Jews, and graduates of nonelite schools), but the gap in compensation and importance between the two hemispheres in Chicago continued to exist and had even grown. Another strong theoretical focus that we see in both the law-deﬁned and social science–deﬁned
research agendas in emerging economies, again from the same period, can to some extent be traced to Gordon’s (1984) articulation of the role of corporate statespersons. The theoretical idea is that central to the rise of the large law ﬁrm in the United States, as noted above, was the development of the “corporate lawyer statesperson.” These individuals were part of the legitimation of corporate lawyers and were responsible for corporate lawyers in the United States reaching the top of the professional hierarchy. This tradition, it should be noted, is not generally associated with the British solicitor ﬁrms, because the bar—the barristers as contrasted to the solicitors in the law ﬁrms—occupied the highest position in the British legal profession (on the historical genesis of the English bar, see Prest 1986). As shown here, however, the theory of the statesperson role of the corporate lawyer is quite evident in the general treatment of corporate lawyers in emerging economies. It is associated also with the idea of the Cravath model, named after the elite law ﬁrm of Cravath, Swaine & Moore (Galanter & Palay 1991). The Cravath organizational model is also characterized by a relatively small group of partners coupled with a substantially larger group of associates on the partnership track. The associates compete to be selected partner. A relative few make it, and the others in the traditional up-or-out model move on to other legal positions—often in the departments of client businesses. This scholarly focus, it should also be noted, is consistent with the profession’s own self-image as playing a double role—serving clients and playing a leading role in making the rules for governance. Scholars like Gordon have for much of their careers focused on failures of corporate lawyers to work hard enough to reign in their clients. The literature on corporate law ﬁrms in emerging economies draws on the preceding approaches in a variety of ways. For purposes of this review, I group the current literature into three basic categories. These are different ways of using the theoretical paradigms that, to be sure, arose within the United States to explain and in part legitimize the role of the corporate lawyer. The task is to see how these paradigms should or should not be used in emerging economies. The ﬁrst category of research is based essentially on a global theory of modernization. Assuming that the global economy needs or demands what has been developed in the United States (and later in Great Britain), a feature of this theoretical approach is to ask whether the law ﬁrms in an emerging economy reveal a “two hemispheres” division and whether the ﬁrms take on the features of the Cravath model, including the role of lawyer statesperson. The literature may take the form of testing whether there is convergence toward the US model of the corporate law ﬁrm or instead variants or hybrids that draw on that model. Framed in more sociological terms, this approach examines theories of isomorphism in organizations. The second approach is related to the ﬁrst one but shifts the focus to the speciﬁcities of national legal ﬁelds. The distinguishing feature of this approach is that it does not look at corporate law ﬁrms as such, separating the apparent corporate hemisphere from the rest of the legal ﬁeld, but rather seeks to account for how the legal ﬁeld generally is being reshaped through global inﬂuences. www.annualreviews.org • Corporate Lawyers in Emerging Markets 445 The concern is less with progress toward the global standard or identifying hybrids and more with the way the local context interacts with global developments to produce change and continuity. The third approach looks more at the political economy of corporate law ﬁrms. It focuses on how the spread of corporate law ﬁrms relates to larger issues of empire and hegemony, core and periphery. The implicit assumption that US-style corporate law ﬁrms are a response to globalization and the demand for corporate law by globalizing businesses, according to this approach, is a research topic rather than a measurement of modernization or convergence. The current era of globalization is related to the role of law in the era of imperialism. CONVERGENCE AND DIVERGENCE, TWO HEMISPHERES, LAWYER STATESPERSONS, AND MODERNITY The two-hemispheres and corporate-lawyer-statesperson approaches ﬁgure prominently in comparative studies and in studies that can be grouped under the title of modernization. We can divide the studies into those that embody a law-driven agenda and those that take a more sociological approach, although they end up in similar places. They each focus on whether there is divergence or convergence toward the presumed global—modern—standard. The Agenda of Law School–Based Research The law-driven research epitomized by the Harvard GLEE project raises the question of convergence or divergence and combines it with a more normative agenda recognizable in US legal academies. The website of the GLEE Project, for example, de
ﬁnes the research agenda by reference to the opening up of the economies of Brazil, India, and China and related processes of privatization. These changes then led to a “demand for new laws and institutions,” which in turn created a demand for “‘new’ lawyers with both the skill and orientation to operate in these legal domains.” The result was “the emergence of a new ‘corporate’ legal center consisting of ‘large’ law ﬁrms and increasingly sophisticated in-house legal departments.” The “new generation” of corporate lawyers “challenges traditional notions of legal practice and legal expertise. Legal education is modernizing.” The ﬁrst stage of GLEE, according to this description, studied “the role of the new corporate law sector in law making and policy implementation,” the impact on “legal education,” and the “spread of pro bono and ideas about corporate social responsibility in Emerging Economies” (https://clp.law.harvard.edu/clp-research/globalization/). In the next phase of the project, according to the website, GLEE proposes to compare the corporate legal sectors in Brazil, India, and China, seeing to what extent they have developed models that differ from those in the North.... We will ask to what extent have ideas of professionalism taken hold and what form they have taken. We hope to better understand the policy preferences of the new corporate lawyers and chart the role they are playing in lawmaking and policy formation. We will look comparatively at legal education.... We will test whether pro bono activities by this sector are making a genuine contribution to providing access to justice. Finally, we will try to assess the overall contribution of this sector to the rule of law. (https://clp.law.harvard.edu/clp-research/globalization/) This research takes US-style globalization and modernization as the point of departure. The research questions revolve around the creation of a corporate hemisphere; the question of whether corporate lawyers assume a role in governance, in lawmaking, and in building the rule of law, and even whether they participate in effective pro bono work; and whether the corporate sector shapes legal education—again following the US model. None of these topics are taken for granted, and 446 Garth the agenda points to potential differences from the US and northern model. These topics are bound to be of interest to US companies and global corporate law ﬁrms. An article published in 2013 by Wilkins & Papa (2013, p. 1168) on “The Rise of the Corporate Elite in the BRICS” points to a normative agenda implicit in the research. They ask not only whether the “elite” lawyers of the “corporate ‘hemisphere’” will be involved in governance, but also whether they will unite with corporate lawyers from the other BRICs to resist some of the neoliberal policies that promote inequality and hinder development. The question of whether they will support human rights and access to justice is raised as a challenge and research question: “Will they... act as a mitigating force on corporate power, championing the profession’s traditional socially minded ideals through pro bono, CSR, or other similar practices?” (Wilkins & Papa 2013, p. 1177). Another GLEE contribution, a working paper by Trubek et al. (2014) entitled “The Political Economy of Lawyering in Emerging Economies: Towards a Second Generation Theory of Law, Lawyers, and Globalization,” pushes the issue of divergence and convergence by suggesting that what is emerging in the BRICs is not US-style “New Lawyering 1” but what the authors term “New Lawyering 2.” These hybrid approaches, they argue, may use some of the same skills, organization, and strategies that had emerged with the rise of New Lawyering 1 in the 1990s, [but] they do not necessarily share the hegemonic professional identity more common in that ´epoque. Indeed, we may be seeing the emergence of a different “posthegemonic” professional identity that combines new lawyering practices with greater concern for domestic interests and values and more attention to special legal needs of the developmental state. Although this is likely to be more apparent in the NGO, cause lawyering, and new public sectors, it may also be seen in some parts of the corporate law sector as well. (Trubek et al. 2014) The paper suggests that the BRICs are modernizing through corporate law, with corporate lawyers occupying elite positions comparable to their counterparts in the north, but that they will (or may or should) use their inﬂuence to promote governance consistent less with pure neoliberalism—identiﬁed with the 1990s—and more with a “new developmental state.” de Sa e Silva & Trubek (2016) further specify how this new style of corporate lawyering might emerge in Brazil. The normative agenda, which is consistent with progressive legal professional scholarship
in the United States, is to favor a strong role for corporate lawyers moderating the activities of their corporate clients in part through connections to the state. The available work on India from the GLEE project raises similar issues of convergence and divergence, modernity and tradition. Flood’s (2016) chapter on the solicitor’s profession in India, for example, emphasizes the strong differences remaining between the Indian ﬁrms and the global British ﬁrms, in particular the domination of family in India. Gingerich & Robinson (2016) show how the rise of the corporate bar has operated symbiotically with the creation of the so-called National Law Schools to create a large group of students competing for the jobs at the corporate ﬁrms. Krishnan (2013), one of the participants in GLEE, noted in a previous article that because of the domination of law ﬁrms by a relatively small number of family and connected members, young solicitors “peel off ” frequently to form their own ﬁrms. Ballakrishnen (2016) also makes the novel case that the importation of global models into new Indian law ﬁrms without strong hierarchical organizations dominated by a male elite actually makes opportunities for women that are greater than in the United States or England. The two-hemisphere thesis again orients much of the work, although, as in Great Britain, the top of the profession is the elite group of barristers exempliﬁed by the Supreme Court advocates in India (Galanter & Robinson 2016). www.annualreviews.org • Corporate Lawyers in Emerging Markets 447 Finally, the GLEE search for reformist lawyer statespersons is as evident for India as it was for Brazil. According to Papa & Wilkins (2011), for example, As India emerges as a new power, it needs top international lawyers to both create a vision of the future legal order to India’s advantage and to pursue that vision in a proactive and strategic manner. India’s international lawyers need to understand legalization as well as the new modes of global governance as they assume multiple roles as judges, legal advisers, legal scholars and diplomats. Both the “hegemonic” and “counter-hegemonic” versions of corporate lawyers emerging from this project are consistent with a Wilsonian ideal of democracy, the rule of law, and relatively free investment and trade—with corporate lawyer statespersons in all the major cities playing a role that both protects and legitimates global corporate power. This ideal is not just a US export, because corporate lawyers from around the globe often ﬁnd inspiration for this role—or variations such as those outlined in the GLEE works—of the corporate lawyer by studying for advanced degrees in the United States, usually the LLM (Silver 2011). There are importers as well as exporters. The available works from the GLEE Project concerned with China, as elsewhere, make reference to the two hemispheres and posit that elite corporate law ﬁrms are at the top of the legal hierarchy. Liu & Wu (2015), in “The Ecology of Organizational Growth: Chinese Law Firms in the Age of Globalization,” build on earlier work by Liu (2008), emphasizing the ways that global and local ﬁrms interact in China through processes of “boundary-blurring” and “hybridization” as global ﬁrms absorb from the local and the local law ﬁrms absorb from the global. This new research suggests that the ecological position in the legal hierarchy in China is key to the way that ﬁrms adapt to globalization [also using the two-hemispheres approach is Wang’s (2015) article on the impact of bankruptcy law on the role of lawyers]. The article uses this theoretical approach and organizational theory to explain why a selection of large corporate law ﬁrms that to outsiders and the legal press appear to be the same are very different [true also for the foreign ﬁrms with outposts in China (Stern & Li 2015)]. The elite group now competes with the global law ﬁrms as well as local ﬁrms on work such as mergers and acquisitions, suggesting that they are modernizing in this respect (Liu & Wang 2015, Liu & Wu 2015). Interestingly, the analysis uses the two hemispheres but does not contemplate corporate lawyers adopting any kind of lawyer-statesperson role in China. Liu & Halliday (2016), in contrast, argue in a forthcoming book, The Politics of Defense: Criminal Justice in Contemporary China, that ordinary criminal defense lawyers—not corporate lawyers—are in fact the leaders in promoting the rule of law in China. The literature on corporate lawyers in China still ﬁnds few indications that the lawyer-statesperson role is “taking root.” More generally, the relationship of corporate lawyers to politics is not yet addressed in the GLEE Project’s available materials, except for a paper on pro bono (Dong 2015). There are interesting issues for future research, therefore, given other works that highlight the number of lawyers now in
high governmental positions in China (Li 2013). The richness of the GLEE materials, only a portion of which are available at this point, can be used for research taking a variety of theoretical positions. They provide the ﬁrst body of detailed empirical research on the corporate sector, including in-house counsel not discussed in this review. The comparison of approaches and hybrids is not yet fully developed, but the research promises more comparative analysis in the future. The orientation of this research is also consistent with much of the research coming from social science studies of professions and professional service ﬁrms. Literature on Professions and Professional Service Firms The more sociological works (also linked to the ﬁeld of geography) on the subject of corporate law ﬁrms, produced mainly but not exclusively in Great Britain, have not tended to study emerging 448 Garth markets as such, but the theoretical approach of this scholarship speaks to many of the same themes of modernization, convergence, and divergence. There is important work in this research line on corporate law ﬁrms (Brock et al. 2006; Faulconbridge & Muzio 2008, 2009; Morgan 2006; Morgan & Quack 2005). This literature tends to look more generally at the role of professions (Faulconbridge & Muzio 2012) and increasingly at the role of “professional service ﬁrms” (Faulconbridge & Muzio 2015, Morgan & Quack 2006; J. Faulconbridge & D. Muzio, unpublished manuscript), led by the Big Four accounting ﬁrms, but law ﬁrms are central in this research as well. The diffusion of the models and tendencies toward isomorphism are the focus of much attention, as are local variations and therefore the need to examine “glocalization” processes (e.g., Drori et al. 2014). This literature takes for granted the hybridization of processes through global and local interactions, and it seeks therefore to specify the factors that create particular divergences and convergences. An excellent recent example—although not of an emerging economy—examines in some detail how English law ﬁrms took hold and changed in the process of the successful establishment of large corporate law ﬁrms in Germany (Faulconbridge & Muzio 2015; J. Faulconbridge & D. Muzio, unpublished manuscript). Two particular recent theoretical developments within this literature merit attention in relation to the topic of corporate law ﬁrms in emerging markets. Drawing on Scott’s (2008) article on “Lords of the Dance: Professionals as Institutional Agents,” several scholars suggest that the professional service ﬁrms (rather than professionals as such) are the leaders in promoting institutional change in transnational and local governance (Faulconbridge & Muzio 2015, Muzio et al. 2015; J. Faulconbridge & D. Muzio, unpublished manuscript). According to Faulconbridge & Muzio, two leaders of this ﬁeld, “GPSFs have their own agendas, capabilities and patterns of activities that are both related to but also distinct from those of the wider professional communities to which they belong.... GPSFs have been central actors in the production of new forms of governance” ( J. Faulconbridge & D. Muzio, unpublished manuscript). This literature is therefore consistent with the “elite” role that the legally oriented scholarship posits, although there is not yet research to suggest that this role—if in fact characteristic of corporate law ﬁrms in emerging markets—will be used to moderate as well as facilitate the activities of a more or less neoliberal agenda. Signiﬁcantly, as these scholars point out, there is still not much research on the actual processes of transformation at the local level. According to a recent review by Faulconbridge & Muzio, “little effort has been made to bring back-in the national scale and consider how transnational compacts ‘come down to the ground’ and get operationalized” ( J. Faulconbridge & D. Muzio, unpublished manuscript). This approach argues for more detailed work on the particular individuals and the local context in which actors from global or local professional service ﬁrms build and reform institutions. These approaches are parallel to the more law-related studies of the role of corporate lawyers in shaping structures of governance. The research hypothesizes a key role for lawyers and others in professional service ﬁrms in building and reforming institutions. Again, however, these theoretical observations have not yet led to detailed empirical work addressing the role of corporate law ﬁrms—global and local—within the particular context of emerging markets. A second recent line of research on professions and professional service ﬁrms, which does address the emerging markets, focuses on the power of global professional service ﬁrms and their link to the global centers of power. Boussebaa (2015, p
. 1217), in particular, argues that “the organisation of GPSFs (re)produces core-periphery relations in the modern world economy... facilitated and reinforced by universalisation efforts on the part of the ﬁrms’ core ofﬁces.” He thus “highlights the role of local professionals both enabling and resisting GPSF domination” and the “GPSFs’ role www.annualreviews.org • Corporate Lawyers in Emerging Markets 449 in (re)producing global inequalities and colonial-style power relations in a supposedly postimperial world” (see also Boussebaa et al. 2012). These lines of research can be aligned with the law school–based research on modernization, the two hemispheres, and lawyer-statespersons. The critical research on the new imperialism is consistent with the general approach, except that modernization is depicted as part of unequal core and periphery relations. There is a sense that corporate lawyers and their analogs in other professional service ﬁrms naturally play a special role in shaping global and domestic governance. It is a picture that remains consistent with the self-image of the legal profession and corporate law ﬁrms in the United States as key agents in expanding markets who also help to produce and enforce the rules that legitimate and regulate those markets. THE LEGAL FIELD, LOCAL HIERARCHIES, AND STATE POWER A second general theoretical approach is to focus on situating corporate lawyers and law ﬁrms within the more general topic of the legal ﬁeld and its relation to state and economic power. The idea is less to see whether corporate ﬁrms in emerging economies are converging or diverging with global corporate law ﬁrms, or even what hybrid emerges in any given local setting, but instead to examine how the development of corporate law ﬁrms (or professional service ﬁrms) and globalization more generally affect professional hierarchies and relationships to state and economic power. Some of the work already mentioned provides material relevant to this set of questions as well. Historical work that traces the genesis and evolution of corporate law ﬁrms, typically through some kind of alliance between locals and expatriates linked to foreign companies, can be useful in seeing these impacts on national legal ﬁelds. Recent historical work on Brazil (Krishnan et al. 2016), for example, shows the connections between local elite lawyers and well-connected expatriates in the establishment of law ﬁrms prior to World War II. Tungnirun (2016) shows how the expatriates in Myanmar were able to gain precedence even in providing the “local” advice to companies seeking to invest or do business in Myanmar since the economy opened in 2011. These kinds of studies also can trace the intersection of these ﬁrms with state power and economic power at the domestic and transnational levels. One of the general issues is how much these corporate law ﬁrms, most of which were established to serve the interests of foreign businesses, connect to ﬁelds of state power (for the geneses of these corporate law ﬁrms in Latin American and Asia, see generally Dezalay & Garth 2002, 2010). From a methodological perspective, one feature of this research, not typical of American scholarship on the legal profession, is attention to the social and familial position of the actors involved in the import and export of legal technologies and forms, including the corporate law ﬁrm. Bourdieusian approaches that examine the geneses of institutions to reveal the kind of capital that goes into them are relevant to these concerns (e.g., Bourdieu 2015). Several of the works produced by Latin American scholars within the Stanford project are helpful in this respect because they examine the origins and connections of corporate law ﬁrms to state power and domestic social capital. Bergoglio (2015), for example, notes, “In Argentina, a limited number of traditional ﬁrms established in the nineteenth century and had a long history in serving international clients. O’Farrell, founded in 1883, has been acting on behalf of Ford in Argentina since 1913. Similarly Beccar Varela, founded in 1897, has represented Citibank in the country since 1914.” Her study notes the evolution of these and other ﬁrms, their connections to family capital, and the emergence in the twenty-ﬁrst century of “two hemispheres” (p. 9), with a corporate sector of some 1,400 lawyers at the time of the study (p. 11). She notes that the ﬁrms “increasingly hire from the relatively new private law schools attended mainly by the well-to-do, 450 Garth and which now supply some 50% of the lawyers” (p. 14). The corporate lawyers also tend to go abroad to get an LLM from a US law school. There is some suggestion, therefore, that the law ﬁrms may be creating a sphere
that does not link closely to state power despite still playing the role of broker. She notes, for example, that the state did not employ the Argentine corporate law ﬁrms to help defend in the many ICSID (International Centre for Settlement of Investment Disputes) proceedings against Argentina in the wake of the Argentine ﬁnancial crisis. They used mainly governmental lawyers. G´omez & P´erez Perdomo’s (2015) study on Venezuela for the Stanford Project provides a related but even more dramatic story of the individuals found in the corporate sector and their evolving relationship with state power and social capital. The study shows that the corporate sector grew out of the oil industry and international connections, but that it is also linked closely to elite families and the structure of state power. It also shows the difﬁculties and creative strategies that the lawyers and ﬁrms have used to survive during the Chavez era beginning in 1999 (see also G´omez 2010, 2011)—especially after corporate lawyers were linked to oppositional politics. G´omez & P´erez Perdomo focus on corporate lawyers, but they also address the relationship of the lawyers in corporate law ﬁrms to family capital and the legal ﬁeld more generally. They note that the top of the profession is represented by the well-known superstar lawyers or ‘grand advocates’..., who offer highly specialized legal advice to corporate clients.... Besides their high level of expertise on a particular area, the main asset of the grand advocates is their social capital, which allows them to cut across the intricate formal and informal barriers of the Venezuelan legal landscape. (G´omez & P´erez Perdomo 2015, p. 12) They note further that the power of these lawyers, who do not belong to the corporate ﬁrms, depends above all on “family connections and other aspects of their social capital.... [H]aving obtained a law degree from a particular school is also a contributing factor to a lawyer’s professional placement” (G´omez & P´erez Perdomo 2015, p. 11). There are two related issues raised in these articles. The ﬁrst is the connections between the corporate law ﬁrms and the local social capital, which in the cases of Argentina and Venezuela remain quite strong even as new groups challenge the traditional elites and gain control of the state. The Venezuelan study, however, also suggests that the most elite members of the legal ﬁeld are the equivalent to the Indian “grand advocates.” As with India, these articles question whether the “elite” of corporate law ﬁrms have or will gain the stature that US law ﬁrms have at the top of the legal ﬁeld. They suggest that the two-hemispheres theory that puts corporate lawyers at the top of the legal elite needs to be problematized more than it has been in most research. The second is the relationship to the state itself and the entities, including economic ones, connected to the state. Both cases suggest some erosion of the connection between corporate law ﬁrms and state power. More detailed research on the trajectories of individuals and families in relation to international connections and to domestic bases of power would be necessary to explore the relative place of those in corporate law ﬁrms, law-trained individuals generally, and other competitors in ﬁelds of state and economic power domestically and transnationally. Both of these themes, which are not the focus of the studies on divergence and convergence, are not well studied—in part because they do not ﬁt easily into a story of the gradual ascendency of corporate law ﬁrms to the top of the legal hierarchy and a key place in state governance. Perhaps the most detailed research to date on these themes comes from sociological research on Brazil, where the traditional “jurist” remains the most elite legal position. The elite jurists, as noted strongly in Falc˜ao’s (1988) chapter in Lawyers in Society, combine family capital, academic positions, politics, and business connections (see also de Almeida 2010; Dezalay & Garth 2002; Engelmann 2007, www.annualreviews.org • Corporate Lawyers in Emerging Markets 451 2013). What Engelmann (2007) in particular shows more recently for Brazil is that globalization and the rise of corporate law ﬁrms have challenged the traditional law schools epitomized by the University of S˜ao Paulo and the traditional elite jurists connected to the traditional faculties of law and to economic and state power, but that they have retooled, adapted, and rebuilt their elite positions. They are attacked as out of date, but they have resources that so far have allowed them to protect their positions in the legal ﬁeld. The story of the corporate lawyers can be related instructively to the story of the traditional elite. The second theme, which is related, is the position of the corporate legal sector—or even
the legal ﬁeld more generally—in relation to national economic and state power. At one extreme, the corporate sector may exist as an essentially foreign enclave, representing foreign businesses with individuals whose professional trajectories do not move out of that enclave (see Dezalay & Garth 1996 on Egypt). The corporate law ﬁrm sector in Malaysia can be seen as a variation of this theme. Working through the Malaysian Bar Association, as noted above, the law ﬁrms advocate for human rights and judicial independence (Harding & Whiting 2012), but as a result largely of the British strategy of divide and conquer, they are mainly of Indian and Chinese descent and are cut off from the Malay-dominated state and the business world connected to the state (Dezalay & Garth 2010). They connect to global human rights institutions and to global companies, but they have relatively little inﬂuence in domestic politics or economics. Some of the literature on China points to a similar phenomenon with respect to the corporate law ﬁrm sector. Wang’s (2015, p. 13) article for the Harvard GLEE Project on the evolving role of bankruptcy law notes that the power of the corporate lawyers and the law in comparison to the power of local governments meant that, in shaping the fate of businesses facing bankruptcy, the law and lawyers did not have an “advantageous position in this web of power relations.” But after new bankruptcy reforms led by others, in which “legal capital may not be enough” (Wang 2015, p. 13), lawyers have increased their power by occupying and building on a strategic position as brokers among the key players. From the perspective of this line of research, what is key is to see how local actors can take advantage of transnational developments and credibility to build the position of corporate lawyers, legal expertise as it relates to business and the state, and even faculties of law and law schools that model themselves in large part on the elite US law schools that link closely to corporate law ﬁrms. This research relates to the progress of that narrative, but that is not its focus. It seeks to see how global processes relate to particular stories of hierarchy, challenges to hierarchy, and processes of reproduction and change. A few empirical studies illustrate these themes with respect to the WTO and trade law. Shaffer and his collaborators have produced detailed studies of how efforts to build local legal capacity in Brazil, India, and most recently China have important domestic impacts on the role of law and lawyers—and foreign educational expertise—in state power, but also how these impacts are not inconsistent with strengthening and refurbishing existing power structures as well, such as the Brazilian state, the elite Supreme Court bar in India, and networks connected to the Communist Party elite in China (Shaffer & Gao 2015; Shaffer et al. 2008, 2015). Similarly, studies of the reform of legal education in emerging economies speak to the issues of change and continuity. Wang et al. note how reforms that look like modernization—publishing in English in foreign journals, hiring professors with international experience and degrees, or changing teaching approaches—are as much a product of domestic concerns and local positions in the ecology of legal education as they are of foreign inﬂuence (Wang et al. 2015). The study of Indian law schools ﬁnds that the faculties of law established since the 1980s produce law graduates competing intensively for jobs in corporate law ﬁrms (Gingerich & Robinson 2016). As noted, these studies can be framed as the result of a demand for lawyers better trained in the rules and 452 Garth CONCLUSION There is to date relatively little literature on the subject of corporate law ﬁrms in emerging markets, with most of the empirical research very recent and not yet ﬁnally published. The questions to date mainly derive from the existing literature on the legal profession and corporate law ﬁrms in the United States. There is understandable interest among lawyers, and indeed among social scientists www.annualreviews.org • Corporate Lawyers in Emerging Markets 453 as well, on the degree to which an organizational structure replicates in emerging markets. Part of the concern is whether corporate lawyers will gain the stature and adopt the professional model associated initially with Wall Street law ﬁrms. Much of the research relates also to the more general questions about not only the role of corporate lawyers within the legal ﬁeld but also the role of law and lawyers in state and economic power. Globalization since the end of the Cold War and the strengthening of US hegemonic power open up domestic and transnational strategies that make corporate law ﬁrms more visible in emerging markets, attract local law graduates into that sphere, put pressure on faculties of law to be more involved in the production of corporate lawyers, and also to some extent buy into global legal hierarchies of core and periphery. The results depend on local and transnational factors that can be studied. But to date these topics understandably do not command as
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obligated by the guilt-debt it assumes on our behalf: The interests and ideals that make sense of its regime are “nailed to the cross of the institutions and practices” (the form of the life of the people) “representing them in fact” (p. 47). To live lawfully, it seems, is like living historically, to be condemned to a state of cross-purposes, of cruci-ﬁctions. As memory and right, history and law are unavoidable, foundational conditions of human being. But simultaneously we encounter them as invented “regimes,” to use Unger’s word, of interpellation that demand our attention and assent. As regimes of interpellation, history and law enforce each other’s impositions. “A two-fold spirit is indispensable to the jurist; the historical, to seize with readiness the peculiarities of every age and every form of law; and the systematic, to view every notion and every rule in lively connection and co-operation with the whole, that is, in the only true and natural relation” (von Savigny 2000, pp. 64–65). Legal history exists at the intersection of history and law and has a responsibility to resolve their cross-purposes. As regimes of interpellation, history and law jointly observe and insist upon realities often antagonistic to those that arise from their alternate being as memory and right. Legal history fulﬁlls its responsibility by undertaking a dual task, of recovery and rejection—the recovery of memory and right, the rejection of regimes of interpellation. The task has not always been clear or, even when clariﬁed, one that is willingly undertaken. But if undertaken, the task will serve life, and it will do so by acting untimely—“that is to say, acting counter to our time, and thereby acting on our time and, let us hope, for the beneﬁt of a time to come” (Nietzsche 1983, p. 60; see also Constable 2005). A CONSUMING FEVER OF HISTORY Some might look at our legal quadrangle today and conclude that it is suffering “from a consuming fever of history” (Nietzsche 1983, p. 60). In the 2015–2016 Association of American Law Schools 2 Tomlins Directory of Law Teachers, well over 400 scholars list legal history as a subject of interest (AALS 2016, pp. 1576–79). By this measure, legal history is the most heavily populated “theory and perspective” subject in the contemporary American law school curriculum—more than law and social science, law and economics, law and literature, critical race theory, or feminist legal theory (Tomlins 2011, p. 139).1 Our fever is a creature of the last half century. Considered as a realm of study with a mature sense of collective intellectual identity—possessed of a professional association to promote itself, a monograph series, and a journal to publish its wares—legal history did not really exist in the American academy before the 1960s. In 1931, Columbia Law School’s Karl Llewellyn (1931, pp. 730, 732) described the ﬁeld of US legal history as near empty; he called it “substantially unoccupied.” Between the 1930s and the mid-1960s, the number of law teachers expressing interest in the subject averaged in the twenties. It was not until about ﬁfty years ago that the growth surge really began. Since then it has never let up (Tomlins 2011, p. 140). In the United States, legal historians have long associated the beginnings of their ﬁeld’s ascent from insigniﬁcance with the intellectual leadership furnished by James Willard Hurst of the University of Wisconsin. But recent work by David Rabban (2013) has demonstrated emphatically that although Hurst may indeed have presided over legal history’s renewal, he was hardly its inventor. Half a century before Hurst, American law schools were home to a thriving school of historical jurisprudence. Engaged in what Daniel Boorstin (1941, pp. 428–33) would later describe as “legal embryology,” turn-of-the-century scholars studied “the primary sources of English law...[and] its Teutonic origins” (Rabban 2013, p. 6). They conceived of history as “an evolutionary process of development that organically connected the past with the present” (p. 325). Rabban (2013, p. 14) summarizes their characteristic beliefs as follows: The most fundamental consensus among these scholars was that historical research into the entire development of current law is a prerequisite to understanding and, ultimately, to restating it. They believed that history reveals ambiguities, anomalies, gratuitous technicalities, and
false theories in current law that should be eliminated through legal reform...They believed that an enormous amount of preliminary historical research was needed before a systematic restatement of current law could be properly accomplished...They viewed the historical study of law as a science, which, like other sciences, needed to be housed within research universities staffed by full-time professors and attended by full-time students. Rabban (2013, pp. 378, 531) warns that we should not underestimate the sophistication of his subjects. “[T]hey recognized that historical continuity...often was neither smooth nor progressive.” They were sensitive to contingency, to “the differentness of the past” and “the dangers of anachronism.” But although they did not believe that the past necessarily governed the future, they were profoundly convinced that history was worthy of study because, by a process of evolutionary development, history was what explained the present. An evolutionary history will explain the present as continuous with its past, or it will take as its task to produce the history that explains and contains the present’s discontinuities. In either case, to understand the present, whether to preserve it or to change it, one must begin with its past. Rabban’s turn-of-the-century scholars were remarkable neither for their faith in professional research nor for their evolutionary theory of history. Both characteristics would reemerge at 1These ﬁgures do not include any reference to legal historians based in history departments. Recent AALS Directories suggest the “top” of c. 500 law-based legal history scholars in 2010–2011 has become a ﬂuctuating range of 400–500. www.annualreviews.org • Be Operational, or Disappear 3 mid-century. Where Hurst’s (1942, p. 329) revived legal history differed from what had gone before was in its rejection of “doctrinal classiﬁcation” in favor of the historical examination of law’s “economic or cultural function” and of law itself as a social institution. In this, Hurst echoed Roscoe Pound’s modernist critique of historical jurisprudence for its concentration on the “internal” evolution of legal doctrine to the neglect of the impact of “external” social forces (Pound 1910; see generally Kennedy 2006, pp. 37–62; Parker 2016, pp. 170–71, 174). “Legal history should demonstrate how law emerged from and accommodated itself to social, economic, and psychological conditions” (Rabban 2013, p. 462). But in other respects Hurst’s history did not depart from historical jurisprudence. Most important, the law of which it was the history emanated—like that of the turn-of-the-century scholars, like that of Pound—“from the conscience and needs of a people” (Rabban 2013, p. 21, describing the historical jurisprudence of Francis Wharton), famously embodied in Hurst’s Law and the Conditions of Freedom as “we” (Hurst 1956). Hurst’s conception of the people from whose conscience and needs law emanated differed from that of most of his predecessors. For Wharton (1884, p. 69), law was “the instinctive and unconscious outgrowth of the nation,” by which he meant “that people as wrought up in one continuous body with those who preceded it as part of a common race.” Anglo-Saxon racial continuity explained historical jurisprudence’s overwhelming concentration on English law and its Teutonic origins. Hurst’s people, in contrast, was distinctively American, a speciﬁc ideology planted in a speciﬁc environment (Landauer 2000, pp. 76–78; Tomlins 2010, pp. 538–40). As an account of origins, at least, Hurst’s pointed emphasis on American law’s Midwestern accent abandoned racial continuity for the formative “challenge of the unexploited continent” (Hurst 1956, p. 10). Still, his “we” was underwritten by so formidable a value consensus and a common Anglo-European settler history—“for 250 years...we drove inland from our coasts”—as to imply at least some (instinctive? unconscious?) resonance with Wharton’s evolving nation (Hurst 1956, p. 34). In these respects, the different and novel American legal history emerging in the mid-twentieth century was less different and less novel than American legal historians have told themselves. Though heavily inﬂuenced by modernist empiricism’s long retreat from developmental thinking (Bevir 2011b, pp. 26–27), it remained, like the predecessor school of historical jurisprudence, legal history written as the history of a consensual people, its interests and ideals, its institutions and its practices, its Volksgeist (Scheiber 1970, p
. 746). In this it was neither more professional in its scholarship nor less evolutionary in its essential assumptions (Gordon 1984).2 Its novelty was in part substantive and in part methodological, but also in part (perhaps mostly) a creature of its isolation from what had gone before, from which it was comprehensively cut off by a generational “eclipse of historical explanation in the early twentieth century” (Rabban 2013, p. 535). How then should we regard the “consuming fever” of today’s legal history? Is this also a story of essential scholarly continuities? In certain respects it is. The very success of this history is a condition of its propagation in research universities and graduate programs, accompanied by all the inevitable biases to continuity that attend institutionalization. Unlike the practitioners of historical jurisprudence, today’s legal historians would likely not use the term science to describe their activities. Still, their methodological reliance predominantly upon inductive interrogations of qualitative empirical evidence does not much differ from methods in use a century ago. That said, their subject matter is quite different. Though more sympathetic to the study of legal doctrine than the historians of the mid-twentieth century, they understand doctrine differently, as ideology. Nor do they share the conﬁdence of the historical school in history “as a continuous organic process of development that connected the past with the present and the emerging future” (Rabban 2013, 2As Hurst told Hendrik Hartog (1994, p. 388) in the course of a 1993 interview, “It’s hard not to be an economic determinist.” 4 Tomlins p. 378). The past is what lies in back of the present, but to study it is to be interested “in possibilities as well as eventualities, in multiplicity rather than linearity,” in not only what was or would be, “but also what might have been” (Goluboff 2013, p. 2326). Though they can be found writing of a people (Hartog 1987), that people is fragmented (Welke 2010). Today’s legal historians are predominantly historicist in theory and practice, emphasizing both the embeddedness of legal concepts and actors in social and historical contexts and the plurality of those contexts, hence the contingency of all relations between concept or actor and context (Tomlins 2012a, p. 32). Here lies a question of some importance. If one is to seek, with Nietzsche, a history that serves life, that rejects “inexorably unnegotiable” regimes of interpellation, will one ﬁnd it in our present moment’s consuming fever of “inﬁnitely interpretable” historicism (Barker 1993, pp. 102–3)? It is precisely the claim of legal history’s current fever that the best chance to answer those regimes lies in the historicist work that it is undertaking. Is this indeed the case? THE ANTIFOUNDATIONAL IMPULSE Thelegalhistoryoftodayisinmanyrespects“antifoundational.”AsKunalParker(2011,p.279)has put it, “The call to historicize and contextualize law—to individuate the legal pronouncement by pinning it down in historical time—is...an attempt to break law’s pretensions to continuity, to rob it of its claims of identity over time.” Parker argues that as such (another continuity) contemporary legal history expresses an impulse no different from that on display a century earlier in the work of Oliver Wendell Holmes, Jr., who was both a participant in Rabban’s historical school and a critic of it. Holmes’s (1881, p. 1) famous argument that “the life of the law has not been logic; it has been experience” certainly favored historical research. But the experience exposed by that research did not, in Holmes’s view, furnish an argument that the past authorized the present: For Holmes history is the heretical or iconoclastic practice of revealing the merely temporal origins of phenomena to dismantle the foundations upon which such phenomena rest, whether those foundations be the logic allegedly underlying law or the accumulated weight of law’s past that authorizes its own repetition. Once the temporal origins of phenomena have been identiﬁed and their foundations undermined, however, no underlying order, instantiated in an unfolding historical time, becomes visible. In other words, history possesses no necessary or coherent direction or meaning. It simply sweeps away foundations, clears ground, and invites self-reﬂection. (Parker 2011, p. 7) Contemporary legal history’s successor antifoundationalism is the creation of critical legal history (CLH), which remains the single most inﬂuential mode of legal historical scholarship in the United States. At its inception in the second half of the 1970s, CLH stood in the same relationship to what had preceded it—simultaneously indebted
and subversive—as did Holmes to the historical school. In CLH’s case, the object of obligation and critique was the externalist historiography championed by Willard Hurst, which represented law and society as distinct realms of activity related by causal mechanisms, and the history of law as one of adaptive functional response to social and economic stimuli. In 1984, Robert W. Gordon summarized the critique in his well-known historiographical essay, “Critical Legal Histories.” In that essay, Gordon identiﬁed Hurst with a category of scholarship that he labeled “evolutionary functionalism,” which essentially referenced the entire canon of post-Enlightenment social-historical explanation. What united all these deservedly respected thinkers was their embrace of some form of determinative or instrumental relationship between law and society. Hurst, according to Gordon, saw law “as a product of an ideological consciousness applied to practical problem-solving.” Hurst’s critics, in contrast, saw law “as a primary producer of that consciousness” (Gordon 1984, p. 112, n. 120). www.annualreviews.org • Be Operational, or Disappear 5 Gordon (1984, p. 114) counterposed to evolutionary functionalism not only the proposition that law was constitutive of consciousness, rather than the reverse, but also the proposition that no predictable or constant relationship existed between legal rules and social and economic life, because “when you situate law in social context, it varies with variations in that context.” Some critics, he allowed, would go further. “The same body of law, in the same context, can always lead to contrary results because law is indeterminate at its core, in its inception, not just in its applications” (p. 114). One way of mapping that indeterminacy lay in the intellectual history of legal doctrine, which would convert all legal history to the study of “the rise and fall of paradigm structures of thought designed to mediate contradictions” (p. 116). But this was not Gordon’s preferred option. The critical mode of intellectual history had led its readers to believe it embraced the view that legal ideas simply developed according to some mysterious inner dynamic separate from the rest of the world. But “ﬁeld-level” research into vernacular legal consciousness showed that “the forms that go into the constitution of legal relations...are manufactured, reproduced, and modiﬁed for special purposes by everyone, at every level, all the time. Critics are not going to get this insight across if they don’t switch their focus” (pp. 122–23). Gordon’s comment sketches a tension within CLH between two modes of historical inquiry. Gordon’s mode was what he would come a few years later to call “critical historicism.” Essentially, critical historicism stands for the poststructuralist argument that meaning is a creature of context, that context is always changing, always unstable; hence, meaning is always contingent, always undergoing modiﬁcation “by everyone, at every level, all the time” (Gordon 1984, p. 123; see generally Gordon 1997). The rival mode is to be found in the work of Duncan Kennedy. Kennedy’s object of attention is not the history of law per se but the history of legal thought, and in particular the history of legal consciousness, by which he means the structure of categories and concepts within which thinking about law occurs. This “structure of categories” constitutes a mode of thought, which Kennedy, borrowing from Ferdinand de Saussure’s semiotics, calls a langue. It is sufﬁciently stable to be capable of production, transmission, and reproduction, but not so constraining as to predicate speciﬁc outcomes. Outcomes—the “speciﬁc, positively-enacted rules” that express the mode of thought in action in different ﬁelds of law—are parole, standing for practices capable of indeﬁnite variation within the boundaries of the mode of thought, according to subjective circumstance, locality, and so forth. As this indicates, Kennedy’s method is structuralist. In the 1970s it was on display in his famous essays “The Structure of Blackstone’s Commentaries” and “The Rise and Fall of Classical Legal Thought” (Tomlins 2015b, p. 4). The tension between Kennedy’s structuralist quest for system underlying variation in an account of legal thought and historicist description of law as “plural, contested, constructed” (Gordon 1996, p. 358)—in other words, as nothing but parole—is clear. By 1996, writing of the “remarkable revival of interest...in history” under way “among lawyers and legal scholars” not just in the United States but “worldwide,” Gordon (1996, p. 339; 1984, pp. 116–17) was ready to declare historicism’s ascendancy over what he had earlier described
as “the most distinctive Critical contribution.” Kennedy’s essay on Blackstone’s Commentaries was brilliant, but “so gnomic as to have remained almost unread” (Gordon 1996, p. 361). Within a few months, in another commentary, Gordon (1997, p. 1029) was hailing critical historicism as perhaps “the most exciting work currently being done on law.” By 2012 critical doctrinal history had quite “petered out,” overwhelmed by the huge wave of historicist inquiry into “the study of law at the vernacular level” that marked the climax of legal history’s remarkable revival (Gordon 2012, p. 209). Although it would be misleading to claim that the 400–500 US legal scholars who currently identify legal history as a subject of interest are all solidly lined up in a phalanx behind Gordon’s poststructuralist vision of the ﬁeld, critical historicism is the single most deﬁned tendency in the legal history arena. What, then, are its declared objectives? They are, precisely, to undermine 6 Tomlins what I have called regimes of interpellation. “So what then is...‘critical history,’” Gordon (1997, p. 1024) asks. I would say it is any approach to the past that produces disturbances in the ﬁeld—that inverts or scrambles familiar narratives of stasis, recovery, or progress; anything that advances rival perspectives (such as those of the losers rather than the winners) for surveying developments, or that posits alternative trajectories that might have produced a very different present—in short any approach that unsettles the familiar strategies that we use to tame the past in order to normalize the present. (Gordon 1997, p. 1024) To read this passage with a very different accent, however, that which places the stress on “any,” is to realize that its subversive effect is disconcertingly indiscriminate (Tomlins 2012b, p. 164). With that accent it is difﬁcult to imagine a mode—or output—of historical inquiry that cannot be assimilated to so encompassing a deﬁnition, or a subject or practice that will not be scathed. And here, perhaps, lies the problem. For it is precisely the very incessancy of its contingencies, of its relativities, the looseness of its canon, that tends to defeat its purposes. “The endless modernist recurrence to history to pull down, to render contingent, and to politicize undoubtedly has a great deal to do with progressive scholars’ continuing sense of the gap between law and justice. Law must be historicized, shown to be political, so that justice might ﬁnally be done” (Parker 2011, p. 280). But justice can never ﬁnally be done by a philosophy of history that eschews that very possibility, hence the endlessness of the recurrence, and the stubborn persistence of the gap. Critical historicism can “unsettle” law and history as regimes of interpellation and the realities they demand. But it cannot interpolate memory and right, do justice, and so serve life, for these are simply more relativities doomed to critical subversion and erasure. Meanwhile the regimes live on. Our critical efforts seem to have little effect, other than to demonstrate the resilience of that which we criticize. THE TIDE OF HISTORY By way of an example, let us turn to this essay’s epigraph. Let us consider “the tide of history.” Mabo (No. 2) The phrase “the tide of history” appears in the course of a judgment rightly described as “arguably the most potentially constitutionally radical, and almost certainly the most politically contentious decision of the Australian High Court in its history” (Pether 1998, p. 116). Mabo v Queensland (No. 2), decided in 1992, recognized the existence in Australian common law of a concept of “traditional native title,” founded upon unextinguished connection to or occupation of land or waters by indigenous owners (in this case the Meriam People of the Murray Islands in the Torres Strait) under traditional laws or customs.3 Recognition repudiated the nineteenth-century claim that Australia was terra nullius, which had denied the existence of an indigenous population with its own systems of law and had vested “absolute beneﬁcial ownership of the lands of the continent” and “sovereignty” in the British Crown colonizer as a matter of both law and history [Pether 1998, 3See, generally, Mabo v Queensland (No. 2). Here all pinpoint references are to the Australian Legal Information Institute electronic case report. www.annualreviews.org • Be Operational, or Disappear 7 p. 116; see Mabo (No. 2) (Brennan J) at ¶ 41, 42].4
The High Court demurred from addressing the legality of British colonial sovereignty on the grounds that “[t]he Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.”5 Instead it found that what the Crown had acquired with sovereignty was not full beneﬁcial title to the lands of the colony but radical title—“a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory)” [Mabo (No. 2) (Brennan J) at ¶ 52]. Native title had survived within the regime of radical title, but always in a condition of vulnerability to it, for radical title came accompanied by “an absolute sovereign power to determine the disposition of all land held under the crown, including Indigenous owners” (Blackshield & Williams 2010, p. 158). Hence, “any surviving native title is liable to be extinguished by express action of the Crown at any time, and also to be extinguished by any legislative or executive disposition of the land which is inconsistent with the continuance of the Indigenous claim” (p. 158). Mabo thus rewrote Australian common law “to recognize a law predating it and persisting alongside it,” while simultaneously declaring that other law to be its inferior, “always subject to subordination and indeed extinguishment by it” (Pether 1998, p. 117). In Mabo, “the tide of history” appears to stand for the inexorable, if piecemeal, processes by which Native title had in fact been extinguished over the previous two centuries across the vast majority of the continent.6 Brennan J’s lead judgment acknowledged, very indirectly, that the tide had been accompanied by a violent undertow: “Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connection with it.”7 But the metaphor itself was sorrowful rather than penitent.8 Mabo has rightly been described as the expression of a “jurisprudence of regret,” an “owning up” to the past (Webber 1995). It is remarkable, then, that “the tide of history” actually placed the largest measure of responsibility for the extinguishment of their title on the Indigenous owners themselves: Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with 4See also R v Steel (Forbes CJ): “It is a matter of history that New South Wales was taken possession of, in the name of the King of Great Britain, about ﬁfty-ﬁve years ago.” 5Mabo (No. 2) (Brennan J) at ¶ 83. Compare Johnson & Graham’s Lessee v. McIntosh, at pp. 588–89. 6This is the meaning Blackshield & Williams (2010, p. 159) accord Brennan’s metaphor, and indeed Brennan [Mabo (No. 2) ¶ 63] notes that “the dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneﬁcial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists.” 7Mabo (No. 2) (Brennan J) at ¶ 66; for a much more explicit acknowledgment of the violence of indigenous dispossession, see Deane and Gaudron JJ at ¶ 48–56. 8It should be noted that although six members of the High Court (Dawson J dissenting) were in agreement that Australian common law recognized a form of Native title that, “in the cases where it has not been extinguished, reﬂects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands,” subject to the effect of Crown leases, three of the six—Mason CJ, McHugh, and Brennan JJ—declined to support the contention of Deane, Toohey, and Gaudron JJ that “extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages.” In this respect, Mason, McHugh, and Brennan were joined by the lone dissenter, Dawson, “since his Honor considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown.” The anti-compensation majority allowed that passage of the Racial Discrimination Act of 1975 (Cth) might supply a statutory basis for compensation for Native titles extinguished after
1975, and that retroactive compensation could be effected by additional “clear and unambiguous statutory provision” were it to be made [Mabo (No. 2) (Mason CJ and McHugh J) at ¶ 2]. No such provision has been made. 8 Tomlins the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands to a full beneﬁcial title, for then there is no other proprietor than the Crown. [Mabo (No. 2) (Brennan J) at ¶ 66] Brought, ﬁnally, within the protection of the common law, indigenous owners have already undone themselves by their past failure to live their lives in a manner worthy of its future protection. Brennan’s sorrow is palpable, but for the vast majority of indigenous Australians the tide will not ebb. That which has been abandoned cannot be recovered. Mabo contains another metaphor, intimately related, that of law as a prisoner of history. This metaphor, also in its way self-absolving, expresses a jurisprudence less of regret than of limits, limits that encircle and defend Australian law as the expression of the life of one people. Transgressing those limits endangers the legal system upon which “the peace and order of Australian society is built” [Mabo (No. 2) (Brennan J) at ¶ 29].9 Australian Native title jurisprudence before Mabo had essentially restated what had become the conventional wisdom since the 1820s: The law had been settled by 1788, and to all intents and purposes since the original publication of the ﬁrst volume of Blackstone’s Commentaries in 1765. First, a distinction obtained “between settled colonies, where the land, being desert [sic] and uncultivated, is claimed by right of occupancy, and conquered or ceded colonies.” And second, Blackstone’s words “desert [sic] and uncultivated” had “always been taken to include territory in which live uncivilized inhabitants in a primitive state of society.” Though recognized to be “subtle and elaborate” expressions of a “stable order of society” and of “‘a government of laws, and not men,’” Indigenous relationships to the land were not such as could be recognized as ownership under the settled law—a law, founded on a history of settlement, that contemplated the existence of nothing beyond itself [Milirrpum v Nabalco and the Commonwealth, pp. 141, 201, 267 (emphasis supplied)]. In Mabo, the High Court, in Justice William Gummow’s pithy summation four years afterward, acknowledged “that the long understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown then to have been false” (Wik Peoples v Queensland, p. 181). But what were those assumptions of historical fact now shown then to have been false? Not the absolutism of Crown sovereignty. Rather, what was now shown then to have been false was the conventional wisdom used retrospectively in colonial New South Wales to validate settler tenures and titles—that by “desart and uncultivated” Blackstone had meant uninhabited by a settled and civilized population.10 Old false facts 9In this respect, Brennan (with Mason and McHugh, and with the expedient addition of Dawson) formed a majority that declined to ﬁnd Aboriginal Australians what they might have termed the “special favorite of the laws.” See Civil Rights Cases 109 U.S. 3, 25 (1883). 10Blackstone’s (1979, vol. 2, p. 7) original text had endorsed “the right of migration, or sending colonies to ﬁnd out new habitations, when the mother country was overcharged with inhabitants...so long as it was conﬁned to the stocking and www.annualreviews.org • Be Operational, or Disappear 9 discarded, the High Court stood ready to grant a new original truth—that with Crown acquisition of sovereignty the common law had become
“the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown,” colonist and indigene alike [Mabo (No. 2) (Brennan J) at ¶ 36]. But it would not recognize that the “stable order of society” disrupted by British settlement possessed its own distinct and continuing legal integrity. To do so would “fracture a skeletal principle of our legal system”:11 In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies...[But although] this Court is free to depart from English precedent which was earlier followed as stating the common law of this country...it cannot do so where the departure would fracture what I have called the skeleton of principle. [Mabo (No. 2) (Brennan J) at ¶ 29] The prison house of history commits Australian law to the skeletal principle that there is one law for all, and that the one law is an organic development from the law of England. Indigenous law and custom, however subtle and elaborate, have no standing as law, but only as evidence cognizable in the adjudication of claims to the proprietorial concession that common law has denominated “traditional native title.” In Australian Native title jurisprudence, history and law, as regimes of interpellation, have created a reality formidably antagonistic to memory and right. Yorta Yorta Following Mabo, the Australian Federal Parliament passed the Native Title Act (1993) to establish a process for claiming Native title, deﬁned in the act as communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a cultivation of desart uninhabited countries” as “within the limits of the law of nature.” But, he had there continued, “how far the seising on countries already peopled, and driving out or massacring the innocent and defenseless natives...was consonant to nature, to reason, or to christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind.” 11Mabo (No. 2) (Brennan J) at ¶ 43. To discard falsity while avoiding fracture, the High Court was necessarily driven toward metaphysics. Criticizing the unjust implication of prior case law that “the interests of indigenous inhabitants in colonial land were extinguished so soon as British subjects settled in a colony, though the indigenous inhabitants had neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest,” that “the common law itself took from indigenous inhabitants any right to occupy their traditional land,” the Court determined to remedy the injustice and shelter the common law from accusation by ﬁnding that in fact the common law had extended to all, settlers and indigenous alike, from ﬁrst settlement. Injustice hence lay not in any common law taking of the land but rather in past failures to realize that indigenous inhabitants enjoyed “native title” rights and interests at common law (¶ 31, 43). Those rights and interests could now ﬁnally be recognized, but without generating any entitlement to compensation for centuries of denial, and only to the extent that recognition did not “fracture the skeleton of principle which gives the body of our law its shape and internal consistency,” namely common law reception itself (¶ 29, 43). 10 Tomlins connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. (Blackshield & Williams 2010, p. 169) In 1996, nine months after a federal election that replaced the Australian Labor Party government led by Paul Keating with a Liberal-National Party coalition government led by John Howard, the High Court decided Wik Peoples v Queensland, in which a divided court held that Crown leases to pastoralists were “no necessary extinguishment” of a coexisting Native title, but also that “[i]f inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees” (Wik Peoples v Queensland, p.
83).12 The Howard Government took preemptive statutory action to protect pastoral leaseholders from Native title claims.13 Successive High Court majorities then insisted on restating Native title as the creation of statute and not common law. It would not do, the High Court said in Members of the Yorta Yorta Aboriginal Community v Victoria (2002), to give “undue emphasis” to Mabo (No. 2) “at the expense of recognizing the principal, indeed determinative, place that should be given to the Native Title Act” [Members of the Yorta Yorta Community v Victoria (Gleeson CJ, Gummow, and Hayne JJ) at ¶ 70]. The Court then expunged recognition of Native title from the Australian common law that 10 years earlier had hesitantly acknowledged the rights and interests in land and waters of at least some indigenous Australians. The High Court’s sorrowful jurisprudence of regret became a hard-nosed jurisprudence of extinguishment: Native title is not a creature of the common law, whether the Imperial common law as that existed at the time of sovereignty and ﬁrst settlement, or the Australian common law as it exists today. Native title, for present purposes, is what is deﬁned and described in s 223(1) of the Native Title Act. Mabo (No. 2) decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown’s acquisition of sovereignty and radical title in Australia. It was this native title that was then “recognised, and protected” in accordance with the Native Title Act and which, thereafter, was not able to be extinguished contrary to that Act. [Yorta Yorta (Gleeson CJ, Gummow, and Hayne JJ) at ¶ 75] What this meant was that Native title had come into existence for the ﬁrst time in 1993 as a statutory deﬁnition of rights and interests that the High Court had identiﬁed, in Mabo, as survivals of the Crown’s acquisition of sovereignty over Australia. Prior thereto, the rights and interests that the Native Title Act contemplated had existed only under the traditional laws and customs of Aboriginal communities, not at common law. The Court further identiﬁed the rights and interests thus deﬁned as legal rights and interests, deriving from a normatively valid and sovereign legal 12The majority consisted of Toohey, Gaudron, Gummow, and Kirby JJ. In dissent were Brennan CJ, Dawson, and McHugh JJ. As of 1993 a very large proportion of the land mass of Australia was subject to pastoral leasehold—38% of Western Australia, 41% of New South Wales, 42% of South Australia, 51% of the Northern Territory, and 54% of Queensland (Keating 2011). 13Native Title Amendment Act 1998 (Cth). “The overall effect of the amendments was to signiﬁcantly diminish the area of land and water over which native title might exist and the areas of land or water and the types of activities over which indigenous people have meaningful rights in relation to future uses...Indigenous people made it clear that they rejected the amendments and that they were not consulted nor did they consent to the Act” (Tehan 2003, pp. 555–56). Aboriginal land rights advocate Mick Dodson said at the time, “By purporting to ‘conﬁrm’ extinguishment by inconsistent grants, the Commonwealth is purposely pre-empting the development of the common law—not allowing sufﬁcient time to integrate the belated recognition of native title into Australia’s land management system. This does not require the obliteration of indigenous interests so as to favor non-indigenous interests” (quoted in Keating 2011). www.annualreviews.org • Be Operational, or Disappear 11 system with which the common law had intersected momentarily in 1788. In their critique of Yorta Yorta, Blackshield & Williams (2010, p. 170) comment the sovereignty from which Indigenous legal systems derived their validity must necessarily have been that which inhered in Indigenous peoples before 1788. But in 1788 that sovereignty was displaced or extinguished. It followed that from 1788 onwards a legal system derived from that sovereignty could no longer validly operate to generate new rights. Hence, any “rights” derived from that legal system must be those to which it had given rise before 1788. The High Court allowed that the laws and customs expressing those rights might evolve, but the rights claimed could not. And “if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality.” In that case the statute could ﬁnd no Native title [Y

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