Blog of the International Journal of Constitutional Law

Editor’s Choice: Tom Ginsburg

Tom Ginsburg, University of Chicago

[ICON Editors’ Choices for New Year Readings and Gifts: ICON’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following weeks they will present their selections here on I*Connect. They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.]

Making Constitutions: Presidents, Parties and Institutional Choice in Latin America by Gabriel L. Negretto. New York: Cambridge University Press, 2013.

Latin America is something of a constitutional graveyard, in which formal texts have been replaced frequently over the past two centuries.  Focusing especially on the period of relative political stability after 1978, Gabriel Negretto has produced a masterful book that helps us to understand constitutional politics in the region and beyond.  Integrating quantitative analysis with a series of case studies, Negretto’s innovative analysis makes this book required reading for students of constitutional design. He breaks down constitutional choice into a two-level game in which, at the broadest level, political actors have common interests in constitutional reform, perhaps to overcome institutional blockages or to better provide for public goods.  At a lower level, he notes that the constitutional bargaining processes have distributional consequences, in which some actors will benefit more than others. Constitution-making thus involves elements of cooperation and competition.  This useful framework can be applied in a wide array of design situations.

On the Run: Fugitive Life in an American City by Alice Goffman. Chicago: University of Chicago Press. 2014.

This illuminating and controversial book reports the author’s experience living in a very poor neighborhood in Philadelphia while she was an undergraduate and then graduate student.  A portrait of dysfunction and normalcy, the book humanizes a group of poor black men whose entire lives are colored by their relationship with the police. It goes beyond the recent news of police brutality to portray an entire carceral system that affects every aspect of people’s relationships. The controversy comes from Goffman’s occasional lack of objectivity and an incident in which she seems to cross the line from observer to subject, but in the end the human story is so powerful as to make this a major piece of ethnography and well worth a read.

An Introduction to Empirical Legal Research by Lee Epstein and Andrew Martin. New York: Oxford University Press. 2014.

The empirical turn in international and comparative law is an important one, requiring the careful collaboration of lawyers and social scientists. This is a nice readable introduction to the basics, and will help those who are budding producers as well as consumers of the literature.  Shameless plug alert: the authors use one of my co-authored books as an example throughout the text.

The Twilight of Human Rights Law by Eric Posner. New York: Oxford University Press. 2014.

My colleague Eric Posner has written what is sure to be a controversial attack on human rights law. Along with Stephen Hopgood’s 2013 The Endtimes of Human Rights, it represents a larger wave of backlash and disappointment at the purported lack of achievements of the human rights movement.  This book both critiques human rights law for lack of efficacy, and suggests that a welfarist approach would be superior on normative grounds.  Posner’s most interesting argument is that we ought to approach human rights in the vein of development economics, which uses a kind of experimentalist methodology to advance welfare. While development economics has made a lot of mistakes, he argues, it is continuously learning from them and not committed to any single approach. I like the sentiment, but think he may understate the extent to which human rights practitioners engage in similar experimentalism.  Some of the interesting efforts to leverage social norms to ban female genital mutilation in Africa, for example, explicitly involve the interplay of theory and experimentation that Posner advocates. More deeply, one wonders whether the welfarist approach advocated by the book might be served by having some agents who are committed in an absolute way to deontological goals. Human rights lawyers can help to pressure states to act and to factor human concerns into the welfarist calculus, even if governments don’t fully comply with the law.  In any case, this is a powerful and clearly argued book that is well worth wrestling with.


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