Vol. 20 No. 1 (January, 2010) pp.46-50
LEGAL ACCENTS, LEGAL BORROWING: THE INTERNATIONAL PROBLEM-SOLVING COURT MOVEMENT, by James L. Nolan Jr. Princeton, N.J.: Princeton University Press, 2009. 264pp. Hardback. $35.00. ISBN: 9780691129525.
Reviewed by Salmon A. Shomade, Department of Political Science, University of New Orleans. Email: sshomade [at] uno.edu.
For those familiar with James Nolan’s 2001 book REINVESTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT, LEGAL ACCENTS could be considered a sequel that only Nolan is best suited to write. In REINVESTING JUSTICE, Nolan provided detailed accounts of the history behind the creation of American drug courts. Therein he detailed the influence of these courts in a social movement that aimed (and still does) to change American jurisprudence. With LEGAL ACCENTS, Nolan has expanded his focus to consider a range of problem-solving courts in six countries. Even for those not familiar with his earlier book, in LEGAL ACCENTS Nolan nicely summarizes the major elements of a drug court and how, along with other similarly specialized courts, they constitute a group of problem-solving courts growing by leaps and bounds in the United States and in five other countries.
In the Introduction, Nolan succinctly explains that LEGAL ACCENTS tracks the growth of an international movement that started with the development of American drug courts and the expansion of the drug court model to other problem-solving courts in other nations mostly, community courts, domestic violence courts, and mental health courts. LEGAL ACCENTS is thus a comparative study in that it relates the similarities and differences between and among various problem-solving courts (also referred to as “specialty courts” or “specialized courts”) as they germinated and developed in their respective cultural contexts in the United States, Australia, Canada, England, Ireland, and Scotland. Nolan specifically explores how actors in the non-U.S. countries adopted the blueprints for U.S. problem-solving courts but “with a curious mix of enthusiasm and concern -- a sort of ambivalence . . . that characterizes international attitudes toward the United States more generally” (p.4). We learn that by using ethnography as his primary methodology, Nolan visited all six countries at least three times. During these research trips, he interviewed major court actors such as judges, magistrates, and sheriffs. He also observed operating court programs, “and spoke with other staff associated with the courts, including probation officers, treatment providers, lawyers, program directors, victim support personnel, medical doctors, evaluators, and, in the case of aboriginal courts, elders and peacemakers” (p.5). In addition, he spoke with government officials who helped create these specialized courts and observed facilities and entities working with these courts, examined data from government reports, legislative debates, court evaluation reports, and publications from many organized groups focusing on [*47] specialized courts, and spent considerable time attending conferences on these courts.
Chapter 1 of LEGAL ACCENTS captures the history and development of problem-solving courts in the United States. In this chapter, we learn that the literature generally focuses on three “interrelated problems (1) of individual offenders, (2) of a troubled court system seeking to regain its legitimacy, and (3) of society more broadly (due, ostensibly, to the failure of other social institutions to handle perennial social ills)” (p.10). Major characteristics of the four major specialty courts – drug courts, mental health courts, community courts, and domestic violence courts – are also discussed in the chapter. According to Nolan, the U.S. now has more than three thousand problem-solving courts with several hundreds more in the planning and implementation stages. As a person who studies drug courts, I am aware that U.S. drug courts alone now number two thousand five hundred, remarkable given the first U.S. drug court was established in Miami in 1989, only twenty years ago.
The focus of Chapter 2 is on the relationship between law and culture and on the process of globalization itself. Citing other scholarly works on globalization, Nolan discusses whether the process of globalization can be characterized as “homogenization” and if “heterogenization” or “localization” is the counterpart to homogenization. Nolan notes that some scholars perceive homogenization “as the process by which American-styled capitalism, mass culture, and consumerist habits are imperialistically advanced in a world that is progressively more interconnected through electronic communications, the Internet, television, and transnational corporations” (p.24). Other scholars see heterogenization or localization as the extent people reject what is perceived as the dominant global culture and reassert their “indigenous practices and commitments to local identities” (p.24). Nolan eschews this seemingly binary choice by arguing, “The reality, of course, is more complex and more interesting than a simple dichotomy such as this would suggest” (p.25). Also in this chapter, Nolan analyzes the concepts of Therapeutic Jurisprudence and Restorative Justice (both U.S. originated theories), and wonders if these culturally embedded theories transfer well outside the U.S. Notably, although these theories originated independently from the creation of the problem-solving court movement, they are now considered the underlying theoretical frameworks for the movement and they dictate many practices utilized in U.S. specialized courts. Nolan concludes the chapter by raising several important questions. For example, he asks, “If a legal product, such as a problem-solving court, is developed in a uniquely American context, is it not intrinsically American to the core? Is it possible to fully extricate the culturally determined qualities of American problem-solving courts -- such as their distinctively therapeutic tendencies – when the programs are transported to other countries?” (p.41)
Some of the questions asked in Chapter 2 are answered in the next three chapters of LEGAL ACCENTS. The focus of Chapter 3 is England and the process by which it developed its problem-solving courts. Since 1998, England has established three types of specialized courts, [*48] drug courts, domestic violence courts, and community courts. Nolan demonstrates that although the U.S. inspired the creation of these courts, there is a great deal of hesitancy adopting therapeutic jurisprudence practices (for example, the demonstrative and theatrical acts of U.S. problem-solving court judges) in English specialized courts. Clearly, such hesitancy is strongly shaped by the cultural underpinnings of the British who tend to be and perceive themselves as more “buttoned up” than their U.S. counterparts. Canada and Australia are the subjects of Chapter 4. Nolan posits that “both Australians and Canadians have enthusiastically embraced problem-solving courts” – each has created the four major specialized courts mentioned above, and more – “though not without critical reflection and restraints” (p.102). Thus, unlike England, both Canada and Australia have more fully embraced therapeutic jurisprudence theory. Nonetheless, these two countries differ from England and U.S. in one important respect. Because of the significant influence of aboriginal populations, they both have aboriginal courts which integrate cultural themes as part of the problem-solving court process. Chapter 5 captures the development of the court movement in Scotland and Ireland. Early in this chapter, Nolan explains that the specialized courts of these two countries not only distance themselves from the practices of their U.S. counterparts but are also wary of their closer neighbor England’s practices. As of 2007, Ireland had only one problem solving court, the Dublin drug court, which began as a pilot project in January 2001. Although Scotland started its first problem-solving courts nine months after Ireland initiated its drug court, Scotland has since created additional specialized courts in the form of domestic violence, youth, and community courts. These two nations’ courts share similar qualities when compared to those of the U.S. but they also have important differences between them. For instance, lawyers participate in the specialty courts of Scotland but are excluded in the Dublin court.
In Chapter 6 while discussing “American Exceptionalism” Nolan isolates what are considered the major features of U.S. specialized courts such as enthusiasm, boldness, and pragmatism, and extensively analyzes how these features contribute to U.S. influence. He also compares these features with what are perceived to be the hallmark features of other nations’ programs namely moderation, deliberation, and restrain. I find Chapter 7 to be the most fascinating chapter. Appropriately titled “Ambivalent Anti-Americanism, Nolan argues that importers of U.S. problem-solving courts’ practices demonstrate the same contradictory attitudes reflected in most global surveys. On the one hand, many people complain about U.S. ideas and customs, but they do not necessarily reject American cultural products. In this context, Nolan notes that these importers “worry out loud about American cultural imperialism, even while they simultaneously import and embrace what is undeniably an American-grown legal product” (p.159). Nolan supports this with several non-U.S. authors’ criticisms of their own nations’ attitudes toward the U.S. For instance, British author Jonathan Freedland offers, “We simultaneously disdain and covet American culture, condemning it as junk food even as we [*49] reach for another helping – a kind of binge-and-puke social bulimia” (p.169). Nolan does not totally spare Americans in this regard. Partly in this chapter and also in Chapter 8, he laments Americans’ dismissive attitudes toward the rest of the world. In Chapter 7, he points out, “[W]hat one finds is a perceived lack of concern on the part of the United States in learning about the interests, practices, and cultures of other places, and a preoccupation among Americans with spreading their own ideas and practices” (p.165). Nolan ends Chapter 8 – the last chapter in LEGAL ACCENTS – on this note: “Americans, . . . as long as they have the blindfold removed, may wish to look more carefully at the criminal justice practices of other countries” (p.196).
Overall, I enjoyed reading LEGAL ACCENTS, and having read and been influenced by REINVESTING JUSTICE, was not disappointed by this “sequel.” I find LEGAL ACCENTS as equally accessible to all readers as REINVESTING JUSTICE was. However, I have a few criticisms. While I believe that Nolan aptly captures the mix of enthusiasm and concern exhibited by his non-US subjects in adapting American problem-solving courts, I feel that he could also have shared with us more instances or contexts when U.S. actors have imported cultural products or norms and their reactions to the imports. Nolan offers his own criticisms on Americans’ attitudes toward the rest of the world, but he does so in a very limited fashion. By more fully comparing the level of ambivalence (if there is indeed any) demonstrated by U.S. actors when adopting other cultural norms in this book, Nolan might, perhaps, deflect any potential criticism that he did not sufficiently critique Americans’ attitudes toward imported ideas, products, or norms.
In addition, although Nolan’s selection of the six countries studied is based on where the problem-solving court movement is most advanced and it helps that these are all common-law jurisdictions, there is hardly any mention of other countries’ activities on specialized courts. For readers interested in learning more about non-Western nations’ efforts in this regard, there is very little information available in the book. To be fair, one book cannot do it all. But an acknowledgment of other non-Western countries’ activities, even if limitedly, could give the book a boost as the definite global study of the “international problem-solving court movement.” Separately, as Nolan himself readily acknowledges in the Introduction, LEGAL ACCENTS is not an evaluation study. The book does not tell us whether problem-solving courts are effective or efficient at what is deemed to be their chief mission. If a reader is seeking to know about “best practices” or which of the six countries studied is the “most successful,” this is not the right place to look.
Nonetheless, this is a necessary and useful book for readers who study problem-solving courts, especially those that track the development as well as the internalization of the movement surrounding the growth of these courts. Those interested in how law and culture can or cannot be successfully imported will also benefit from reading LEGAL ACCENTS. Most specifically, critics of American cultural imperialism – regardless of interest in problem-solving courts – should read this book. These [*50] critics might be surprised about the “difficulty of disentangling law from its cultural roots” (p.196). For readers in all these categories, I definitely recommend LEGAL ACCENTS as a must-read. For others, the book still belongs to the book shelf space containing ready references about noteworthy subjects.
Nolan, James L, Jr. 2001. REINVESTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT. Princeton, N.J.: Princeton University Press.
© Copyright 2010 by the author, Salmon A. Shomade.