Book Reviews

Fair Trade and Harmonization: Prerequisites for Fair Trade?

Edited by Jagdish N. Bhagwati and Robert E. Hudec. Cambridge, MA: The MIT Press, 1996. 608 pgs. $60. To order, call (800) 356-0343.

Reviewed by James J. Casey Jr.

One of the most pressing issues facing policymakers in the United States is international trade and whether that trade is fair to the United States. Fair Trade and Harmonization: Prerequisites for Fair Trade?, edited by Jagdish N. Bhagwati and Robert E. Hudec, examines the impact that different national trade policies have upon international commerce and relationships between countries. This impact is analyzed in terms of environmental, labor and competition (antitrust) policy, with several articles addressing each topical area. There are many facets to this impact. Not only does it cut across and within developed, developing and Third World countries but also the choice between unilateral and multilateral actions by national governments and international entities. The articles seek to clarify these dichotomies.

The book is divided into three parts: 1) the General Agreement on Trade and Tariff's (GATT) general legal response to the use of trade measures under this international framework; 2) six studies that examine the intersection of trade policy with the three domestic policy areas outlined earlier; and 3) two studies that examine norms of fairness whenever unfair trade conditions are alleged in the national or international context.

The sections on environmental, labor and competition policy provide a solid overview of the legal and political obstacles that prevent true harmonization of national and international laws and norms. Of particular note is the dichotomy between the desire to maintain solid environmental protection and regulation versus the maintenance and expansion of trade ties. How should the United States react if countries that export to the U.S. have little or no environmental regulation, which translates into market advantage? What should poor Third World Countries do if they do not have the financial means to upgrade their environmental protection to Western standards? Where does the moral desirability for a clean environment fit into a free trade system? The United States has made some strides in environmental protection since 1970, but other parts of the world are in far worse condition than even the worst sites in the U.S. What international authority will enforce these environmental cleanups? The relationship between international trade and environmental policy will remain a central concern to all countries for the indefinite future.

This book's primary contribution is found within the final two chapters, which address issues of fairness in international trade. These chapters address various norms of fairness, but cover in particular the concept of the level playing field, a concept that has resonance with U.S. elected officials and citizens. After rigorous scrutiny, the authors conclude that the concept is weak because of the inherent intellectual problems in defining the base of this level field, against which all allegations of "unfairness" are judged. The concept is a useful political construct, but is weak in the legal context.

The book is a traditional academic publication, suited for those in research or education. It is not structured for the average legal practitioner because the book's aim is to provide different viewpoints and constructs, not solve particular problems. That being said, the book accomplishes its goal, which is to introduce the reader to the various perspectives and factors that bear upon international trade and its conflict with national law.

Losing Ground: American Environmentalism at the Close of the Twentieth Century

By Mark Dowie. Cambridge, MA: The MIT Press, 1995. 317 pgs. $25. To order, call (800) 356-0343.

Reviewed by Douglas Leppanen

The environment has many enemies, and in addition to the usual suspects, you now can add the "mainstream" environmental groups. This is the assessment of Mark Dowie, author of Losing Ground: American Environmentalism at the Close of the Twentieth Century and an award-winning journalist. Dowie, a former editor and publisher of Mother Jones magazine, paints a bleak portrait of the current American environmentalist movement. Much of the book criticizes mainstream groups, such as the Sierra Club, the National Audubon Society and the National Wildlife Federation, which are based primarily in Washington, D.C., operate on a national scale, and are run by egotistical and turf-guarding white males, many of whom are lawyers.

According to Dowie, the problem with the mainstream groups, which enjoyed great success and prominence in the 1960s and 70s, is that they have lost touch with the grassroots, have been co-opted by big business, and too often have sold out the environment in the name of compromise and headlines. Struggling to maintain their status, the mainstream groups now spend too much time on slick fund-raising drives and hobnobbing with the elite in Washington. For example, Dowie points out how the national Earth Day events now are dominated by corporate sponsors, and how many of the national groups now have representatives of big business on their boards of directors.

Dowie sees salvation for the environmental movement with grassroots-type organizations, which are closer to the actual problems and are less willing to compromise on vital issues, primarily those involving public health issues such as toxic pollution. Grassroots organizations tend to focus on the effect of environmental practices on human health as opposed to preserving and conserving wilderness and endangered species. The grassroots battleground tends to be more urban and often involves people of color, who are disproportionately affected by harmful environmental policies, such as the placement of hazardous waste sites. The grassroots are more willing to engage in confrontational diplomacy, and to use such tactics as protests and boycotts to stop environmental abuse on a case-by-case basis.

Despite his critical review of the mainstream organizations, Dowie sees some hope for them if they change their ways and join forces with the grassroots organizations to develop a coherent philosophy and strategy in a new wave of environmentalism. Dowie believes this new wave needs to emphasize a policy seeking "environmental justice" for all, and its values need to be made part of all institutions. Only when all factions of the environmental movement come under one umbrella will it be considered a true "social" movement.

Do not expect any in-depth analysis of cases or laws in this book; there is not a single case citation in the entire main text or extensive note section. Instead, there is a more general discussion of major federal laws and the role of lawyers in the movement. The author notes that beginning with the early stages of environmental litigation in the late 1960s, aggressive litigation worked for quite a while, especially regarding the principle that nature had "standing" to sue. However, litigation is effective only as long as the courts are friendly to the cause, and with the flood of Reagan and Bush appointees to the federal bench, federal litigation became less aggressive and gave way to compromise and settlement. Dowie believes that although litigation still can be an effective tool, there is a great need for "rabble-rousers in the streets, the woods and the factories." In addition, Dowie considers disturbing the recent trend of attorneys working in the environmental field, because it seems many more attorneys are masquerading as "environmental lawyers" when actually they work for business and polluters attempting to circumvent and defeat environmental laws, as opposed to lawyers who try to protect the environment and public health.

The author provides a good review of the history, philosophies and players in the environmental movement. One unfortunate aspect of the book is that it appears to have been written before the 1994 elections, when what is arguably the most anti-environmental Congress of all time was elected. I would be interested to read Dowie's view on that development.

Privacy and Its Invasion

By Deckle McLean. Westport, CT: Praeger Publishers, 1996. 152 pgs. $45. To order, call (800) 225-5800.

Reviewed by Mark Melickian

ommon sense tells us that too much privacy is as bad as too little. This should not surprise anyone familiar with the etymology of the word: "Privacy" shares a root with privation and deprivation. For many people in the past, privacy was something more often endured (for example, by Plains homesteaders) than celebrated. In fact, privacy was of little importance until well into the 19th century - taken for granted by the wealthy, unimaginable to the poor, and ignored by moral and legal philosophers. The common law arguably contained a few proscriptions to a violation of privacy, though couched in other terms (for example, libel and trespass laws). The 19th century became what some have called the "Golden Age of Privacy," fueling an expectation by Western Europeans and, in particular, Americans that everybody, rich and poor, had a right to be left alone. Still, it wasn't until 1890 that the first legal commentary of any note on privacy was published: "The Right to Privacy" by Samuel Warren and Louis Brandeis, published in the Harvard Law Review.

Deckle McLean, a professor of journalism at Western Illinois University, presents this background in order to explain why he believes that privacy should be taken more seriously than it is. Given the recent genesis of what we now think of as a "right," McLean asserts, it is not surprising that we still view "privacy" with ambivalence even as we scream about a right to privacy and pontificate about invasions into our realm of privacy. He sets out to make privacy "philosophically manageable" by, for the most part, ignoring legal developments and focusing upon the relationship of privacy to modern American culture. McLean draws from the work of psychologists, anthropologists, sociologists, novelists and journalists, to name a few, in an attempt to give the rhetoric of privacy a concrete vocabulary and defined boundaries. This is a worthy goal, and one that should be welcome to those who practice in privacy law or are simply interested in the subject.

McLean is at his best when talking about the ethics of newsgathering. There is no lengthy discussion here about the First Amendment. Rather, McLean's take is ethical and practical. He is not sympathetic to journalistic claims that the public's right to know outweighs, in most cases, an individual's right to privacy. He is particularly critical of the press's treatment of celebrities. He makes an interesting point, that news space wasted on unnecessary (and unethical) exposes of private facts reduces the quality and quantity of real news.

In other areas, McLean has a penchant for exploring "privacy" in ways that strain credulity. In particular, his discussions of the relationship between privacy and two hot-button issues of the day - rape and race relations - begin on familiar ground but veer into the bizarre.

For example, it has become commonplace to talk about the aftermath of a rape as involving a whole host of invasions, from the development of a "rape kit" to the inquisition of a victim at trial. Some of these invasions clearly implicate what we think of as the realm of privacy. McLean covers this ground, then, in a twist I had not yet seen, discusses the act itself in terms of privacy. McLean argues that rape is not just an man's imposition of power or will over a woman but an act that intends to violate her privacy. He further speculates that the rape cycle - former victims of sexual or psychological abuse turning to rape - is a form of retaliatory invasion of privacy.

McLean's take on privacy and race relations follows a similar route. He begins by asserting that the fundamental "crime" of slavery was that it violated the privacy of the slaves. McLean does not merely contend that slaves had little privacy; he argues that "[s]lavery was a severe invasion of privacy" and a system "based on invading privacy." This provocative thesis could stand from more analysis than McLean gives it, and some of his conclusions based upon this thesis lose me completely.

Whether there is a kernel of truth in McLean's conclusions, you can't blame an academic for building castles out of sand. For the most part, though, I felt that McLean tries to build his sand castles with sand far too dry for the task. McLean's logical constructions too often challenged my tolerance for provocative theses. For example, in concluding his analysis of privacy and rape, McLean states, "[A]s the 1990's began a broad constituency ... took these offenses [rape] seriously, and the existence of this constituency is evidence that the right to privacy has strong endorsement." Even if I buy into McLean's strained attempt to view all manner of social ills through the lens of privacy, this statement seems illogical on its face. Nor is it clarified by his conclusion that "the message of rape," as he calls it, is as simple as "privacy is important."

My sense is that McLean's message extends little beyond "privacy is important." Do we need to believe that hot-button issues such as race and rape are best viewed in terms of privacy in order to assert that privacy is important? McLean apparently thinks so. Perhaps, though, there is method to his madness. Assume that McLean, as privacy's advocate, believes that we will simply ignore privacy unless it is shackled to more visible issues, not unlike a House committee member appending special-interest legislation to a general appropriations bill. Such tactics aim less at passing the legislation than at forcing legislators to argue about it. Perhaps McLean attempts to do little more here than get us to argue about privacy generally. Or perhaps I'm giving him too much credit.

Wisconsin Lawyer