Greater Deference Research Articles

Islamic Law Meets ERISA: How America’s Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It

This article asks whether Muslims whose religious beliefs prevent investment in their employers’ private pension plans have a right to religious accommodation. This is a real issue for a growing part of the population whose spiritual lives are governed by rules that prohibit the giving or taking of interest. As one might expect, the investments available through most American pension plans involve some aspect of interest making those investments unsuitable retirement vehicles for devote Muslims. Consequently, in order to secure their retirement income, Muslims are faced with either violating their religious beliefs, losing years of investment opportunity as they wait for the American investment market to catch up to their religious needs, relying on their employer’s goodwill, or religious accommodation through court or statute. Religious accommodation in the workplace is governed by the Equal Employment Opportunity Act (Title VII). The statute is directive and punitive. There are potential money damages if an employer does not comply with Title VII’s religious accommodation requirement but no benefit (monetary or otherwise) in exchange for compliance. The two Supreme Court decisions that look at religious accommodation under Title VII concern private employers asked to rearrange employee work schedules to accommodate Sabbatarians. Where the employer faced a potential penalty for failure to provide religious accommodation but no benefit for compliance with the statute’s requirements, the Court treated the Title VII accommodation obligation as an Establishment of religion and as a burden on the non-believers’ Free Exercise rights. Accordingly, the Court diminished Congress’ religious accommodation rule under Title VII to the point that no motivated employer need ever accommodate an employee’s religious practice.Not all religious accommodations occur in the same context. As opposed to religious accommodation under Title VII, the Court generally gives Congress great deference when the legislature bestows tax benefits in exchange for taxpayers eschewing even constitutionally protected activities. Private pension plans are founded on tremendous tax benefits bestowed on retirement accounts by the Employee Retirement Income Security Act (ERISA). These benefits invoke the deference to Congress exhibited in the Court’s tax decisions rather than the hostility to forced religious accommodation reflected in its Title VII decisions.

Reconciliation(s): Transitional Justice in Postconflict Societies. By Joanna R. Quinn, ed. Montreal: McGill-Queen's University Press, 2009. 313 pp. $95.00 cloth.

Reconciliation(s): Transitional Justice in Postconflict Societies. By Joanna R. Quinn, ed. Montreal: McGill-Queen's University Press, 2009. 313 pp. $95.00 cloth. What is reconciliation in postconflict settings? This contested question perplexes scholars in the field of transitional justice (TJ), which generally concerns itself with how nations address a past of widespread human rights violations during episodes of violence and the breakdown of the rule of law and democracy. Since its debut some 20 years ago, the discipline of TJ has generated a growing body of literature that continues to outpace the estimated 40 countries that have opted to pursue judicial and nonjudicial mechanisms like truth commissions, reparations, criminal trials, and institutional reform, among other measures, to prevent new cycles of violence (Hayner 2010). Often these articles, books, and chapters examine the theory and case studies of TJ, all the while making passing reference to ''reconciliation'' as an overarching aim of these national political processes. Conveying grand promises to return societies to ''normalcy,'' reconciliation has become the focal point of the TJ movement (Sarkin & Daly 2004). Yet despite the great deference displayed in the canon of TJ literature, readers are often left puzzling over the exact definition of reconciliation. Moreover, despite this lacuna in clarity, few academics venture into this uncharted land of confronting the topic of reconciliation head-on. For that reason, I was intrigued that Joanna R. Quinn bravely took on the challenge of tackling this daunting ground by making reconciliation the central theme of her edited volume Reconcilia- tion(s): Transitional Justice in Postconflict Societies. As Quinn explains in her introduction, the invited authors all attempt to ''come to terms with the many-headed beast that is reconciliation'' (p. 12). Quinn and her cohorts respond to the fact that in the last 20 years reconciliation has come to assume ''multiple meanings and understandings'' (p. 290) but that ''those within the transitional justice community have not settled on any one particular definition of reconciliation'' (p. 5). Quinn herself candidly reveals her own grappling with defining the term: ''What, then, of this thing called reconciliation? In past writing and teaching, I have been reluctant to address the issue of reconciliation for a couple of reasons: first, even with the innumerable articles and books available on the subject, the definition of reconciliation has proven illusive, and I have never understood completely just what 'reconciliation' was supposed to be'' (p. 182). Thus, Quinn enlists the contributing authors of Reconciliation(s) to figure out what reconciliation looks like and how transitioning nations get there, all beginning with the premise that ''reconciliation can mean very different things to different people . . . the contributing authors agree, however, that, at its heart, reconciliation is about building relationships of trust and cohesion'' (p. 5). Practitioners and academics alike, the authors represent a variety of disciplines (education, political science, philosophy, theology, law, psychology), which inevitably means a rich combination of styles, methodologies, and analytical frameworks. This composition could potentially frustrate a reader eager for a set paradigm for framing reconciliation, but then again the diversity of perspectives merely symbolizes the dynamism of reconciliation, incapable of being captured by just one interpretive ''notional lens'' (p. 12). Alternatively, there is a style to suit each reader's preference: theoretical and philosophical ruminations, case-based inquiries, anthropological thick description and nuanced observation, and political-legal frameworks for testing political models and hypotheses, among others. Indeed, Quinn notes that many of the chapters test ''how realities of TJ correspond to conceptual arguments'' (p. …

Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its Own Drummer?

National courts have restricted party autonomy in choice of law in a variety of ways. In international arbitration, on the other hand, the march of party autonomy has been unhindered. National courts have abetted this process in the international arbitration context, even as they have maintained restrictions on party autonomy in choice of law within their own legal systems. This phenomenon, combined with the gradual loosening of restrictions on party autonomy in national legal systems, has led some to claim that international arbitration is leading the nations of the world into a global choice of law regime in which party autonomy reigns. Such triumphalists look forward to the day when party autonomy is as unrestricted in national courts as it is in arbitration.This article argues that such a day is unlikely to arrive. The different pressures and interests that shape national court litigation on the one hand, and international arbitration on the other, are likely to generate different levels of support for party autonomy in choice of law. As a result, regardless of whether more party autonomy in choice of law is preferable in all contexts, or whether it ought to have a wider scope in arbitration than in litigation, arbitrators are likely to maintain greater deference to party autonomy than will national legislatures or courts.Note: This paper represents an early version of some concepts and arguments that I develop better and in more depth in my book, The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013).

Keeping the Commandments

This brief article defends the Supreme Court case of Pleasant Grove v. Summum (2009), which upheld a longstanding display of a privately-donated Decalogue monument in a public park. Old religious displays in public life like this deserve greater deference, and the First Amendment Establishment Clause should not provide a taxpayer with a heckler’s veto over a community’s decision to maintain the symbol.

A Proposed Test for Separating Pro-Competitive Conditional Rebates from Anti-Competitive Ones

While the granting of rebates is a common commercial practice largely used by dominant and non-dominant firms, the assessment of rebates is one of the most complex and unsettled areas of competition law. In the EU, the decisional practice of the European Commission and the case-law of the Community courts have been harshly criticized as unnecessarily strict, following a form-based approach that sits uneasily with modern economic theory. In response, DG COMP published in December 2005 a Discussion Paper that promotes an effects-based approach to the assessment of rebates. This approach was recently confirmed in the Guidance Paper of the Commission on Article 82 EC published by in December 2008. US courts have generally shown greater deference to conditional rebates adopted by dominant firms, but the case-law remains unsettled, notably in the area of bundled rebates. Against this background, this paper proposes an analytical framework, based on a three-step test, designed to separate pro-competitive rebates from anti-competitive ones. A particular emphasis will be placed on the treatment of single product retroactive rebates, which create complex issues.

A More Modest Court: The Ohio Supreme Court's Newfound Judicial Restraint

The Ohio Supreme Court has changed significantly over the past six years. Significant turnover on the court has produced significant change in the court's approach to many legal issues, in particular the degree of deference shown to legislatively enacted policies. Whereas the court of the 1990s developed a reputation for aggressively intervening in controversial policy matters, the current court is far more restrained, consistently applying a presumption of constitutionality to legislative enactments. The current court is also largely unsympathetic to new and innovative tort claims or cases that seek judicial revision of existing rules or statutes to facilitate plaintiffs' actions. Evidence of the court's greater deference to the legislature can be found in many areas, including education, tort reform, and family law, among others. While the court appears less likely to invalidate legislative actions, it continues to scrutinize government actions to ensure they are constitutional. The court has also been drawn into contentious political battles, leading to charges of partisanship. While some have been quick to accuse the Ohio Supreme Court of embracing a conservative of pro-business legal agenda, a review of the court's most prominent and consequential decisions of the past several years does not appear to support such criticisms. The common thread in the Court's recent decisions is not a particular outcome, but a particular approach. In a broad number of cases, covering a wide range of areas, the court has followed its stated intention to provide greater deference to legislative enactments and resist creating new causes of action or expanding existing bases for tort liability. The result is a more modest state supreme court. This paper was prepared for the Federalist Society for Law and Policy Studies.

A Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues

In the United States, many important land use decisions are made, at least in the first instance, by administrative bodies composed of local citizens, appointed by the mayor or city council. These boards, typically designated the Planning and Zoning Commission and the Board of Zoning Adjustment, are often suspected of favoritism and bias, in exercising authority ranging from the adoption of comprehensive land use plans and zoning amendments to granting variances or special use permits. However, courts routinely give board decisions great deference, adopting a presumption of validity based on the notion that these boards are composed of the proper representatives of the community. In order to test that assumption, we surveyed the nation`s largest cities to determine the occupations of their zoning board members. The results indicate that zoning boards are dominated by citizens with white-collar occupations. About three-quarters of zoning board members hold professional, technical or managerial jobs, despite comprising only a third of the national workforce. In addition, over 30% of board members have a direct interest in property development. To determine the potential effects of this occupational skew, we conducted a survey of citizens to determine whether their attitudes toward controversial land use issues vary according to demographic factors, including occupation. We found significant differences, although not always in ways we expected. In the end, these results indicate that cities should attempt to appoint a broader cross-section of the community to zoning boards. Although planners, lawyers, and other professionals were necessary in the past, we question whether particular expertise is necessary to accomplish the tasks assigned to modern zoning boards. Finally, if zoning boards continue to be dominated by interest groups, courts may need to reconsider the deference they typically grant to board decisions.

La no renovación de contrato a los profesores de religión en las escuelas públicas por falta de idoneidad canónica : autonomía de las Iglesias y aconfesionalidad del Estado vs. derechos fundamentales del trabajador : comentario a las SSTC 38/2007 y 128/2007)

In this work, the author comments critically a recent case-law of the Constitutional Court about the cases in that the Administration doesn’t renew the yearly contract to a teacher of Catholic religion in public schools because the Bishop didn’t nominate him for that academic year because he failed to consider him a suitable teacher of religion, in part even on the basis of aspects related to his private life. In the Decision 38 of 2007, the Constitutional Court analyzes in abstract the compatibility with the Constitution of the Concordat which allows that «non renewall» of contract and it considers that this is in accordance with the Constitution but the Court lays down the demands that derive of the fundamental rights of the teacher and which should be kept in mind by the judges when enforcing this regulation to the concrete cases. In the Decision 128/2007, the Courth itself reviews a first concrete case of application of this doctrine. The Court gives great deference to the religious opinion of the Bishop when the «non renewal» is based on religious motivations in order to respect the collective freedom of religion.

Challenging the Authority of the Ombudsman: The Parliamentary Ombudsman's Special Report on Wartime Detainees

In the main the Parliamentary Ombudsman (PO)' occupies an eminent position within the British constitution2 and provides a highly effective form of alternative redress against acts of government maladministration. However, in order to maintain that status the PO is reliant upon the continuing cooperation and respect of government departments. It is therefore of some concern that within the space of eight months during 2005-06 the PO was twice forced to issue a special report in response to a government rejection of her findings, an unprecedented rate of government resistance. This article examines in some detail the first of those reports, M Debt of Honour': The ex gratia schemefor British groups interned by thejapanese during the Second World War (hereafter 'the Special Report'),3 and analyses the legal questions that arose during the course of the PO's investigation.4 The Special Report was laid before Parliament under section 10(3) of the Parliamentary Commissioner Act 1967 (PCA) and is noteworthy amongst ombudsman reports because in completing her investigation the PO had to address a number of legally uncertain features of an ombudsman's powers. Significantly, in relation to her functions, the PO chose to interpret widely the lines of inquiry that she is legally empowered to pursue and the standards of maladministration that she can apply. This approach brought her into conflict with the department responsible, the Ministry of Defence (MOD), which was concerned that the PO was trespassing into areas of authority which belonged to the courts alone. For the MOD, the PO should have shown much greater deference to the decision of the Court of Appeal on the same issue in Association ofBritish Civilian Internees: Far East

Ideology and Deference in U.S. Courts of Appeals Decision Making on Administrative Law

The aggrandizement of the administrative state in terms of its size and power has enabled the federal judiciary to enter the political arena regarding control of the bureaucracy. Some scholars have argued that the manner in which courts responded to this development of modern administration is a function of the ideological foundation of the courts relative to the politics and decisions of the agencies. Yet, the Supreme Court's seminal decision in Chevron mandates that courts must afford great deference to agency rule making, irrespective of the judges' ideology, thus providing for the possibility that this decision has acted as a jurisprudential regime by altering the manner in which subsequent administrative cases are evaluated. Which provides for greater influence on the Courts of Appeals, ideology or deference? Preliminary findings as reported herein suggest that Chevron did indeed shift decision making in the federal appeals courts and thus appears to have served as a jurisprudential regime in the area of administrative law. Notwithstanding, this increased tendency of courts to defer to agency action in the post-Chevron era coexists in tandem with the ideology of the courts, as it appears that both ideology and deference to administrative policy are critical to explaining this aspect of judicial behavior.

Controversial Medical Treatment and the Right to Health Care

People have long argued that health care is a basic right that the government is obligated to provide. Our constitutional system, however, is notoriously lax in recognizing positive rights to state-funded resources. As a result, health care coverage for the more than forty million uninsured remains hostage to politics and the political process. A less sweeping approach would talk about health care as a negative right. A negative right to health care means the right of a patient and doctor to pursue a course of treatment of their choosing without interference by the government. While a far cry from a positive right to universal coverage, a negative right is not to be sneered at. Such a right anchors a woman's use of abortion and contraception, and underlies the great deference ordinarily accorded doctors and patients to pursue medical care. A negative right to health care may also play a role in disputes about access to new medical and alternative treatments. Because conflicts over negative rights to health care have usually been settled in the policy or legislative arena, it is of more than passing interest that a prestigious federal appeals court has now staked out a role for the courts by holding that constitutional rights to life and liberty protect such rights. (1) Although such a right is not absolute and may be limited by compelling state interests, the constitutional principle recognized is a significant one. If upheld on appeal, the principle underlying Abigail Alliance for Improved Access to Treatment v. von Eschenbach will require the government to show that there is a substantial, narrowly tailored justification for restricting patient and physician choice about disputed therapies in many different areas, including access to new cancer drugs, embryonic stem cell therapies, and organ transplants. Access to Drugs in Phase II Trials The case arose out of a long campaign by several groups, including both free market business interests and patient advocates, to loosen the Food and Drug Administration's rules for approving new drugs. The steady drumbeat of criticism and the activist efforts of AIDS advocacy groups did lead in the late 1980s to major changes in FDA policy. There is now a fast-track procedure for drugs that show early promise and clear authority for compassionate use exceptions for phase III drugs. (2) Yet this new flexibility has not quieted all attacks. The father of a young woman who had died from cancer after being denied access to the then-experimental cancer drug Erbitux founded the Abigail Alliance for Better Access to Developmental Drugs in memory of his daughter. (3) Along with the Washington Legal Foundation, a conservative public interest law firm, it formally petitioned the FDA to allow cancer patients to use any drugs that had been approved for phase II clinical trials. When the petition was turned down, the two groups sued, claiming that FDA rules violated their constitutional right to health care. The federal district court dismissed their complaint on the ground that there was no such right. In a novel move, the Court of Appeals for the District of Columbia, widely viewed as the most important court outside of the Supreme Court, reversed and remanded the case to the lower court to hear evidence as to whether the government could show a narrowly tailored, compelling need to deny cancer patients access outside a study to phase II drugs. The government has appealed the decision. While no final determination of the plaintiffs' claims is expected soon, the principle unleashed has potentially wide application in other areas of medicine. [See also Rebecca Dresser's discussion in At Law, in this issue, for further analysis of the case.] Both liberals and conservatives have criticized the decision. Liberals dislike it because it appears to constrain the FDA from preventing unsafe, ineffective drugs from reaching the market, thus exposing end-stage cancer patients to exploitation by unscrupulous sellers. …

Galileo in Rome: the rise and fall of a troublesome genius

Galileo's trial by the Inquisition is one of the most dramatic incidents in the history of science and religion. Today, we tend to see this event in black and white-Galileo all white, the Church all black. Galileo in Rome presents a much more nuanced account of Galileo's relationship with Rome. The book offers a fascinating account of the six trips Galileo made to Rome, from his first visit at age 23, as an unemployed mathematician, to his final fateful journey to face the Inquisition. The authors reveal why the theory that the Earth revolves around the Sun, set forth in Galileo's Dialogue, stirred a hornet's nest of theological issues, and they argue that, despite these issues, the Church might have accepted Copernicus if there had been solid proof. More interesting, they show how Galileo dug his own grave. To get the imprimatur, he brought political pressure to bear on the Roman Censor. He disobeyed a Church order not to teach the heliocentric theory. And he had a character named Simplicio (which in Italian sounds like simpleton) raise the same objections to heliocentrism that the Pope had raised with Galileo. The authors show that throughout the trial, until the final sentence and abjuration, the Church treated Galileo with great deference, and once he was declared guilty commuted his sentence to house arrest. Here then is a unique look at the life of Galileo as well as a strikingly different view of an event that has come to epitomize the Church's supposed antagonism toward science.

The Battle Over Endangered Species Act Methodology

The substantive contours of the Endangered Species Act (ESA) have been largely worked out for quite some time. Starting in the mid-1990s, however, opponents of Fish and Wildlife Service and National Marine Fisheries Service decisions from both the industry and the environmental group corners realized that the methodological contours of the ESA were not nearly as settled as their substantive kin. Thus a frenzy of ESA methodology debate materialized in the late 1990s and has been going strong since then, reflecting the realization industry and environmental interests must have made - that how these methodological rules get worked out could revolutionize the ESA for decades to come. This Article explores the breadth and depth of the ensuing battle over ESA methodology. It begins by laying out a framework for evaluating decisionmaking methodologies. One basis on which we might choose how to go about making decisions is what level of confidence we wish decisions to enjoy. Also, how we frame the hypotheses to be tested will influence who favors which methodology. And methodology selection also has much to do with aversion to mistaken conclusions about whether the hypothesis is true.Because methodology selection depends so much on how hypotheses are stated and the risk aversion bias of different interest groups, the Article next provides some background on the ESA and its numerous decisionmaking nodes - the points at which a choice among the three methodologies must be made using one or more of the frameworks discussed above. Three features of the ESA make its decisionmaking context particularly susceptible to fights over methodology. First, many decisions the agencies must make involve questions of biological science for which the available scientific database is either sparse or inconclusive. Second, these biological evaluations often arise in legal contexts that present a poor fit between science and policy. Finally, ESA decisions are characterized by the intense involvement of viciously combative interest groups willing to sue each other and the agencies with what appears to be gleeful abandon. Where the opportunity presents itself to shape ESA methodology, the opposed interest groups seem happy to litigate to a pitched battle in short order.Next the Article frames and assesses the battle positions, which fall into three competing methodological camps I call the Professional Judgment Method, which is the default rule for the ESA, and its two postulated alternatives, the Scientific Method and the Precautionary Principle Method. These three methodologies incorporate starkly different approaches to management of risk relating to species conservation. Yet, close examination reveals neither of the postulated alternatives to the Professional Judgment Method finds support in the statutory framework of the ESA.Nevertheless, there are times when the Scientific Method and the Precautionary Principle Method have a role to play under the ESA, sometimes even hand-in-hand. The challenge is to design a framework that both gives them a role and keeps them under control. The final section of the Article outlines a proposal to create a procedure under which FWS and NMFS could elect to adopt the precautionary principle in discrete decisionmaking instances based on a finding that a significant risk of error with severe consequences exists in connection with a decision not to extend protection to a species. Any interested person could then require the agency to obtain a rigorous scientific peer review of the basis for the agency's decision as means of checking against irrational precaution. Conversely, the proposal would also establish a process under which any interested person could petition a standing committee of scientists to decide whether require a scientific peer review upon finding that the agency may have failed to elect the precautionary principle when it should have under reasonable precautionary guidelines. To guard against overuse of either procedure, the results and findings of the peer review would be entitled to great deference in any judicial review proceeding of the agency's final decision. This would leave the Professional Judgment Method in its appropriate position as the default methodology for ESA decisions, but allow the Scientific Method and Precautionary Principle Method a role in difficult cases.

Introduction

Introduction Melvin I. Urofsky The articles in this issue of the Journal, based on last fall’s annual lecture series, are particularly timely in light of the current war against terrorism and the fighting in Iraq and Afghanistan. As anyone who has followed the news can attest, there are a number of legal issues involved regarding how people desig­ nated as “terrorists” or “enemy combatants” are to be treated. How far do the normal pro­ cedural rules for criminal trials go when ap­ plied during wartime? How extensive are the war powers claimed by the executive branch, powers that definitely exist but are not spelled out in the Constitution? Some of these issues are already being considered in lowerfederal courts, and so there is good reason to believe that at some point they will reach the Supreme Court. While one can never predict how a current court will act basedonpastexperience, knowingthatpast ex­ perience may be a guide to understanding why courts do—and do not—act in certain ways during times ofnational crisis. The six articles that comprise this issue do not, of course, cover fully all war-related issues that have come before the Court, nor could they. But they do give a good sampling of how the Court—which, one should always remember, is a branch of the government and not some abstract body of platonic guardians hidden away in a marble Olympus—has re­ sponded when the nation has been threatened in the past. The record is, as we would expect, mixed. In some instances, the Court has shown such great deference to the political bodies as to almost abdicate its responsibilities for inter­ preting the Constitution. In other instances, it has essentially toldthe President and Congress that despite the fact ofwar, fundamental con­ stitutional safeguards must be observed. The problem, of course, is that the war on terrorism—the first war in almost two cen­ turies to inflict casualties on our homeland— is very different from the traditional wars we fought during the twentieth century, even v vi JOURNAL OF SUPREME COURT HISTORY Vietnam. The issues are, in many ways, con­ fusing, since the acts of terrorists are so alien to the rule of law that we cherish so highly. But as prior courts have reminded us, even if our enemies do not observe our constitutional rules, we must, and how we do that is often difficult to discern. These lectures give some idea ofthe prob­ lems involved. No doubt we shall learn much more in the years to come. ...

Cultural Resistance to Global Governance

We often frame the debate over global governance as a conflict between some set of international legal norms, like free trade or human rights, something we posit as national culture. State actors and legal scholars assert cultural claims as a justification for derogating from some international legal requirement. For example, European states seek exemption from some international trade agreements prohibiting barriers to imported films of music by arguing that the imports threaten their cultural identity or industries. Japan, Norway and some indigenous nations claim a cultural right to whale that supersedes the international moratorium on whale hunting. Some theocratic or developing states claim cultural exceptions to engage in practices that otherwise contravene the international human rights of women and sexual minorities. In general, the international community does not regard practices that implicate commercial trade or environmental resources as authentically cultural. By contrast, the international community implicitly, if not always explicitly, acknowledges that gender norms are authentically cultural and therefore are entitled to great deference by international law. How and why doe we posit some social behavior as authentically cultural and when does culture trump international legal norms? This article explores how state actors and legal scholars make cultural claims in different legal contexts and suggests a linkage between the deployment of cultural exceptions and the project of globalization.

The Misguided Quest: The Clear Case against UNIDROIT

The purpose of this article is to give a perspective on the latest attempt, via a multinational agreement, to limit and control the international trade in cultural artifacts. The scope of the proposed UNIDROIT agreement goes well beyond the subject matter of the conference — ‘Art Theft and its Control’. This is not an international instrument whose primary focus relates to stolen objects. On this subject, there is a broad consensus, although civil law countries still provide greater deference to purchaser's rights over possessor's rights.

Come Back to Me My Language: Poetry and the West Indies by J. Edward Chamberlin

REVIEWS J. Edward Chamberlin, Come Back to Me My Language: Poetry and the West Indies (Toronto: McClelland & Stewart, 1993). ix, 325. $19.99. Postcolonial criticism is bedeviled by the question of aesthetics. What de­ fines postcolonial literature is, by definition, where it is from. Aesthetic judgments are mistrusted because they are imported. The interest of post­ colonial literature lies not in the qualities it might share with other literatures but in the qualities that make it different. The postcolonial critic thus relin­ quishes the authority to make evaluative or normative judgments, yet lays claim to a great authority, one that allows the critic to stand outside and analyze the text in terms of ideology. J. Edward Chamberlin’s long-awaited book, a celebration of contempo­ rary West Indian poetry in English, is a return to poetics that places the poets above the critics. It is because the poetry of Walcott, Brathwaite, and Goodison has proven itself a world treasure that it can redeem a West In­ dian national identity, and, conversely, it is because West Indian poets have succeeded in forging a national identity that their poetry is a world treasure. Chamberlin compares the current outpouring of poetry in the West Indies to the Renaissance, when Europeans “both discovered and invented themselves as people for whom certain values and traditions were precious” (272). Like Northrop Frye, echoes of whose style occur throughout, Chamberlin shows great deference before the poets, who are superior souls with access to spiritual wells from which they nourish their community and all of us. Much recent criticism that calls itself postcolonial prescribes what authors should or should not do. Chamberlin believes that poets do what they have to do. The critic does not judge poetry; poetry judges him. This careful respect is combined with a magisterial address to readers: readers must read properly. This study might almost be subtitled “Anatomy of West Indian Litera­ ture.” Like Frye’s book, it is an introduction— Chamberlin does not offer sustained close readings, and he addresses readers who might not know that Anthony Trollope wrote novels and that Malcolm X was a black leader — but it is an introduction that can inspire all readers by the sweep of its scope and by its vision of poetry as a single enterprise in which all poets are engaged. West Indian poetry defines a space rather than a history. Although 95 a major emphasis of the book is on how West Indian poetry bears witness to a heritage of slavery, Chamberlin’s concern is not primarily historical. The poetry is not discussed in terms of precursors and competing schools, and there is little discussion of how the communal consciousness might have been expressed before the contemporary outpouring of poetry, whether orally or in music. The sources of West Indian poetry lie not in the past but in the depths of the human spirit. West Indian poetry is a totality rather than a field. Bad poetry is excluded as an oxymoron. And V.S. Naipul is exorcised because he is not engaged in the common project (indeed, the common project defines itself as an answer to his despairing statement that nothing was ever created in the West Indies). At the same time, Chamberlin draws on the Bible, English Renaissance and Romantic poetry, the American Renaissance, and contemporary verse from Canada, Northern Ireland, and northern England for his comparisons. West Indian poetry is thus situated in a world (or a sea) of literature; the tensions faced by West Indian poets are the tensions faced by all poets everywhere. Chamberlin’s tour of the crossroads of West Indian poetry is divided into chapters, but these are not defined by subject matter, are very wide-ranging, and all circle around the same central issues, like Odysseus ever-returning. West Indian poetry is nourished by the tensions raised by a series of di­ chotomies that are at once artificial, inescapable, and useful. These di­ chotomies include artifice and nature (the natural in poetry, of course, al­ ways a result of artifice); the familiar and the strange (but familiar to whom and strange to whom? asks Chamberlin); form and content; engagement and detachment; humour and heroism; particulars and...

Adelaide's Heart Transplant 1970–88: 1. Creation, Transfer, and Capture of ‘Value’ within the Built Environment

The circulation of capital within the built environment, as first formalised by Harvey in 1978, is treated empirically via an analysis of residential capital formation and the transfer of value within the Adelaide Metropolitan Area, in the period 1970–88. Operational concepts of value ‘creation’, ‘transfer’, and ‘capture’ are defined before estimates of housing investment and its redistribution through the medium of the urban property market are derived. These are imputed for eight subregions of Adelaide. It is suggested that the chief beneficiaries from the ‘capture’ of value during the past two decades have been the Inner Adelaide suburbs and homeowners; hence the implication of Adelaide's ‘heart transplant’. Harvey's ‘framework for analysis’ and more particularly his account of the timing and patterning of (dis)investment within the built environment are then evaluated in light of Adelaide's experience between 1970 and 1988. It is decided that urban investment trends and patterns cannot be properly understood without giving much greater deference to fiscal and monetary policy together with the state's urban development programme than Harvey is prepared to in his analysis.

Federal Court Involvement in Academic Personnel Decisions

Higher education has long been accorded special status by the judiciary. Until the second half of the twentieth century, litigation involving colleges and universities was infrequent, usually initiated by the college itself, and the college usually prevailed. Judges generally viewed academic matters as unique, specialized, and beyond the capacity of the courts to oversee. Because higher education was viewed as a privilege rather than a right, the judiciary usually accorded great deference to the decisions of administrators and trustees [27, pp. 4-7]. The civil rights movement and other social changes which brought increased litigation to all sectors of society, however, also affected higher education. The number of lawsuits against colleges soared, as students, would-be students, faculty members, would-be faculty members, and former faculty members sought to resolve their grievances against colleges in the state and federal courts. Although few organizations welcome litigation, higher education's reaction to the flood of lawsuits was especially hostile. Academics viewed a court challenge not merely as expensive, time consuming, and unpleasant, but as an attempt to destroy traditional collegial decision making by subjecting it to judicial scrutiny and modification [19]. Thus, the judicial system was seen as the enemy of academic norms and as a force antithetical to the maintenance of academic standards.

Decisions about hospital staff privileges: a case for judicial deference.

The refusal of a hospital to grant medical staff membership and clinical privileges is, generally, subject to judicial review. Because a hospital can be held liable for negligence in the selection and retention of medical staff members, and because a hospital is better situated than a court to make a decision concerning staffing needs, courts should, and generally do, afford great deference to the appointment decisions of hospital governing boards and medical staffs. An analysis of selected cases involving judicial review of hospitals selection and retention of medical staff members will be instructive in reviewing judicial deference to hospital governing boards.When a physician who has been denied medical staff membership and clinical privileges by a hospital seeks judicial review, the court generally first determines whether the hospital is private or public. This distinction frequently determines the outcome. The activity of a public hospital, as a governmental entity, is deemed state action. Under the fifth and fourteenth amendments to the Constitution, neither a state nor the federal government can deprive a person of life, liberty, or property without due process of law.