AALL Spectrum Blog

  • Bookmark and Share

The AALL Spectrum® Blog is published by the American Association of Law Libraries. Submissions from AALL members and other members of the legal community are highly encouraged. Opinions and editorial views expressed are those of the authors and do not represent the official position of AALL. AALL does not assume any responsibility for statements advanced by contributors. Previously, the AALL Spectrum Blog was located at aallspectrum.wordpress.com.
4/5/2014 4:13:36 PM

Book Review. The German Prosecution Service: Guardians of the Law?

Boyne, Shawn Marie. The German Prosecution Service: Guardians of the Law?  Berlin: Springer, 2014. 249p. $129.

American prosecutors have a great deal of discretion to impact the outcome of a criminal case.  The plea bargain – including considerations of when it is offered, to whom it is offered, and under what conditions it is offered – is an essential and expected part of criminal law practice.[1] Whether plea bargaining is viewed as an unethical and coercive tool,[2] a fair and reasonable means for both parties to avoid trial, or something in between, it is part of the adversarial legal system we operate within in the United States.  For comparative criminal law scholars, then, Germany – with its traditionally strong stand against prosecutorial discretion[3] – presents an intriguing case for closer study.

In The German Prosecution Service: Guardians of the Law?, Shawn Marie Boyne, comparative politics scholar and professor at the Indiana University Robert H. McKinney School of Law, examines the widely-held view of German prosecutors as “guardians of the law” and “the most objective civil servants in the world” (p. 6), going directly to the source to understand what institutional and organizational forces shape and challenge their truth-seeking practices.  Having observed that “no comprehensive study of German prosecution practice has been published in English” to date (p. 13), Boyne endeavors to fill the gap with this book.  Borne from several years spent living in Germany conducting research for her Ph.D. dissertation, it shows the reader the unprecedented access Boyne – a former criminal trial lawyer herself – enjoyed to interview and observe German prosecutors in the course of their work.  

In nine well-organized chapters, Boyne first briefly compares the operations of the German Rechtsstaat with the American rule of law state,[4] then looks at the history of the prosecution service, the development of the German prosecutor and the organizational culture of prosecution practice, and finally analyzes the prosecutorial decision-making process and the application of prosecutorial discretion in minor and major crimes cases.  Special features of the book include multiple excerpts from (anonymous) interviews Boyne conducted with prosecutors, various tables illustrative of case files or German code sections, and complete bibliographies for each chapter. 

Boyne is not the first to compare the German and American criminal law systems, or to look at the German prosecution critically – and perhaps others may have undertaken more comprehensive studies on certain aspects.[5]  Nonetheless, for an analysis of the German prosecution, her reasoning in the context of a detailed ethnographic analysis is certainly unique.  Central to Boyne’s thesis is that despite the efforts of the German criminal justice system to constrain prosecutorial discretion by the law standing alone, “the organizational culture of the prosecution, rather than the law decisively shapes how prosecutors exercise discretion” (p. 233).  Particularly illustrative of this is Chapter 7, wherein Boyne takes the reader into the courtroom to follow prosecutors’ handling of three rape cases, arguing “that prosecutors perform the dance of ‘objectivity’ differently depending on the facts of the case, their relationship with the court, and the strength of the evidence” (p.15).

Criminal law and comparative law researchers will find this book especially useful.  It would make an excellent, though non-essential, addition to an academic law library’s collection.

Reviewed by: Catherine Biondo, 2014. Legal Reference Librarian, Northeastern University School of Law Library, Boston, MA. c.biondo@neu.edu.

[1] See Daniel Medwed & Michael Meltsner, Plea Time for Snowden, The Nation, April 7, 2014, at 6, 8 (describing how prosecutors control the process); Michael M. O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 468 (2008) (discussing system dominated by plea bargaining).

[2] See Andrew Shaver, Ethical Lapses in Criminal Plea Bargaining: What Can Be Done About Them, 36 J. Legal Prof. 559 (2011) (considering the ethics of plea bargaining); H. Mitchell Caldwell, Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System, 61 Cath. U. L. Rev. 63 (2011) (examining ramifications of “coercive bargaining”).

[3] Floyd Feeney, German and American Prosecutions: An Approach to Statistical Comparison (U.S. Dep’t of Justice; Bureau of Justice Statistics NCJ-166610, Feb. 1998), available at, http://www.bjs.gov/content/pub/pdf/gap.pdf.

[4] In brief: In the German Rechtsstaat, the individual’s “rights are an integral part of the state’s legal foundation” and the law and the state exist in a “symbiotic relationship” (p.2),whereas in a rule of law state, “tension exists between the law and state power” and “state power … trump[s] individual rights more frequently” (p.3).

[5] See, e.g. Feeney, supra note 3; Floyd Feeney & Joachim Herrmann, One Case-Two Systems: A Comparative View of American and German Criminal Justice Systems (2005); Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995); John H. Langbein, Controlling Prosecutorial Discretion in Germany, 41 U. Chi. L. Rev. 439 (1974); John H. Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 Mich. L. Rev. 204 (1979)

Posted By Catherine Biondo at 4/5/2014 4:13:36 PM  0 Comments
3/26/2014 3:02:27 PM

Book Review. Gender & Justice: Why Women in the Judiciary Really Matter

Sally J. Kenney, Gender & Justice: Why Women in the Judiciary Really Matter.  (New York: Routledge, 2013), ISBN: 978-0-415-88143-2 (hardcover), v + 310 pp. (incl. index), $109.48 (hardcover ); $31.75 (paperback) (Amazon pricing).

Justice must not only be done; it must be seen to be done.

Women make up 50% of law school graduates, yet few make it to the bench.  Why?  To ask a more provocative question: why does it matter?  Despite assumptions to the contrary, women judges do not decide cases differently than men judges.[1]  So, if a woman’s presence on the bench doesn’t make a difference in case outcomes, why does it matter that women are missing? 

Sally J. Kenney’s call-to-arms (written to an audience of her scholarly, feminist peers) analyzes women’s historical and current participation in U.S. federal and state courts, courts in the U.K., and in the European Court of Justice.  Her exhaustive research reveals surprising patterns.  First, women’s rise to the judiciary is not natural or inevitable despite the critical mass of women graduating from law school.  There is no such thing as the “trickle-up” effect.  Instead, a trifecta of phenomena must be present to result in a greater number of women on the bench: an explicit policy commitment to gender equality, influential “insiders” within a political organization or party, and outsiders (feminists) applying pressure.  These phenomena were present in the U.S. when President Carter was in office (resulting in the appointment of forty women to the federal bench), but disappeared under the Reagan administration (leading to a reversal of women’s advancements as a group despite the appointment of Justice Sandra Day O’Connor to the U.S. Supreme Court in 1981).  Until last year, there was only one woman in all of the seven states of the Eighth Circuit Court of Appeals that had ever sat on the bench.  And, at the U.S. state level, despite initial efforts to include women, the state supreme courts of Idaho and Iowa have reverted back to all-male courts.  Women were not appointed to serve on the European Court of Justice prior to 1999 or as a Law Lord in England until 2002.  Today, women remain underrepresented in these court systems as well, despite the large numbers of women lawyers “in the pipeline."  The second pattern Kenney’s research reveals is: women’s progress unleashes rage.  Women judges of every era have experienced frequent backlash, through explicit and implicit discrimination during the judicial selection process and while serving on the bench.       

Despite a dreary past and an unsatisfying present, women have a hopeful future in the judiciary, according to Kenney, if feminists let go of arguments that focus on women’s differences from men and instead refocus on a strategy that worked when integrating the jury system: reframe representation as a right and duty of citizenship that gives the institution legitimacy.  An African-American juror does not have to prove he would vote differently from a white juror to justify his presence in the jury.  A Wisconsin judge doesn’t have to argue that he decides cases differently from an Illinois judge to justify his presence on the Seventh Circuit Court of Appeals.  Likewise, women do not need to grasp at difference arguments to validate equal representation on the bench.  In a democracy, the majority of the population cannot be excluded if the public is to regard the system as fair.  Justice must not only be done; it must be seen to be done.  Additionally, Kenney argues to shift the burden of proof.  Feminists shouldn’t have to explain why the presence of women on the bench is necessary.  Rather, those who wish to exclude women should explain what justifies their exclusion.                   

The appointments of Justices Sonia Sotomayor and Elena Kagan to the U.S. Supreme Court have reignited public and scholarly interest in women’s participation on the bench.  Gender and Justice was one of several monographs on women in the judiciary published in 2013.[2]  It is essential reading for any feminist legal scholar as well as anyone laboring under the misapprehension that patience leads to progress. 

Bottom Line: Recommended for academic law libraries.

Reviewed by: Loren Turner, Reference Librarian, University of Florida Levin College of Law.   

[1] Except, to some extent, in sex discrimination cases.

[2] E.g., Elena Kagan: A biography by Meg Greene (Greenwood, 2013); Gender and Judging edited by Ulrike Schultz and Gisela Shaw (Hart Publishing, 2013); My Beloved World by Sonia Sotomayor (Knopf, 2013); Rebels at the Bar: The fascinating, forgotten stories of America’s first women lawyers by Jill Norgren (NYU Press, 2013); Women, Judging and the Judiciary: From difference to diversity by Erika Rackley (Routledge, 2013).  Additionally, in November 2013, Volume 127 of the Harvard Law Review published a series of essays in honor of Justice Ruth Bader Ginsberg. 

Posted By Loren Turner at 3/26/2014 3:02:27 PM  0 Comments
3/13/2014 5:51:11 PM

Chapter Newsletter Highlights: HALL & SWALL

This post highlights materials in recent chapter newsletters that may be of interest to librarians outside those chapters.

The January/February 2014 issue of the HALL Newsletter, publication of the Houston Association of Law Librarians, has a short article on the development of functional competencies for technology in legal practice. Like the recent AALL legal research competencies, standards for knowledge of legal technology would guide instruction so lawyers can effectively and ethically utilize technology in their practice.

The Spring 2014 issue of the SWALL Bulletin, publication of the Southwestern Association of Law Libraries, has an annotated bibliography of introductory texts for various aspects of international law. The bibliography would be useful for librarians looking to begin or update a basic collection of secondary sources on international law.

Posted By Benjamin Keele at 3/13/2014 5:51:11 PM  0 Comments