Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada by Gerald Baier. Vancouver: UBC Press, 2006, 207 pp.
In this important book, Gerald Baier sets a difficult objective—to demonstrate the continued importance of doctrine as a fundamental aspect of judicial review in three federations. He succeeds in this lucidly written account in clearly demonstrating the centrality of doctrine as a guiding principle for the justices of the highest courts in United States, Australia, and Canada. Perhaps most insightful, Baier contends that doctrine is simply a framework in which judicial review occurs, and he dismisses the notion that doctrine can lead to certainty in judicial outcomes. Baier is to be commended for producing a thoroughly researched work spanning major doctrinal developments in three distinct federations—a work that is accessible for the non-specialist both in its argumentation and presentation of complex judicial developments.
In chapter 1, a compelling case is presented for viewing doctrine as an independent variable in understanding federalism. The second chapter provides a brief history of federalism doctrine in the United
States, Australia, and Canada. The intellectual heart of this study is contained in chapters 3 to 5, where
Baier convincingly demonstrates the importance of doctrine in the development of federalism in the
United States (chapter 3), Australia (chapter 4), and
Canada (chapter 5). However, Baier is correct to state that judicial review is simply one variable influencing the development of federalism. What is most impressive about these chapters is Baier’s ability to present the doctrinal history of each court in a concise and informative fashion. He states that doctrine structures the approach to federalism by each court and maps out major doctrinal developments in each country over a significant time period. In a particularly insightful passage, Baier provides a justification for major doctrinal departures by high courts. Unlike critical studies that contend that doctrinal abandonment is a reflection of the preferences
Reviews/Comptes rendus 389 of individual judges, Baier counters that “judges seem to back off a system of reasoning only after it comes to a sort of logical endpoint by forcing obtuse results” (p. 98). According to Baier, this explains the abandonment of the Garcia doctrine by the United States’ Supreme Court, the endurance of legalistic federalism in Australia, and what he refers to as “balanced federalism” in the case of
Canada.
Though Baier presents a comparative assessment of federalism, a significant aspect of this work is that it requires students of Canadian politics to appreciate the continued role of the Supreme Court of
Canada as the umpire of federalism and judicial review involving the division of powers. Convincing readers of this role may be the most difficult task set out by Baier because of the dominance of the
Charter of Rights and Freedoms and the heavy focus on rights-based review among the academic community. The success of this work is that it does result in a rediscovery of the Supreme Court as the umpire of federalism, a role that Baier demonstrates to be a continuous and significant dimension despite the academic preoccupation with the Canadian Charter of Rights and Freedoms.
While this is an outstanding work, I disagree with
Baier’s suggestion that the Supreme Court of Canada has yet to produce a significant federalism doctrine equivalent to Garcia in the United States or Engineers in Australia (p. 124). The Patriation Reference of 1981 redefined the rules of constitutional reform in Canada and provided the Trudeau government with an opening to achieve significant constitutional change. Baier contends that doctrine changes when it begins to produce obtuse results. By altering constitutional doctrine in the Patriation Reference, the
Supreme Court of Canada aided in ending an obtuse situation—the colonial status of Canada and its constitution as an act of the Imperial Parliament.
Viewed in this light, the Patriation Reference produced a constitutional doctrine of equal significance to Engineers and Garcia.
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This is a book that needed to be written, and I commend Baier for producing a skillful study that challenges, in the context of Canada, our obsession with the Charter of Rights as the most important element of judicial review by the Supreme Court of Canada.
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B. K
ELLY
, Department of Political Science,
Concordia University
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Rethinking the Welfare State: The Prospects for Government by Voucher by Ronald J. Daniels and Michael J. Trebilcock. New
York: Routledge, 2005.
Rethinking the Welfare State: The Prospects for
Government by Voucher will sit comfortably beside
Milton Friedman’s Capitalism and Freedom , Arthur
Okun’s Equality and Efficiency: The Great Trade-
Off , and Osbourne and Gaebler’s Reinventing
Government . It rests less comfortably with Janice
Stein’s Cult of Efficiency , Joseph Heath’s The Efficient Society , or the critiques by Christopher Pollitt and Donald Savoie of New Public Management.
Many students of social policy and the welfare state who think that they already know all of the pros and cons of this subject, or who are prone to dismiss vouchers out of hand, will benefit from a careful reading of this book, if only because it will force them to re-examine their assumptions and sharpen their arguments.
Daniels and Trebilcock begin by pointing out that vouchers (defined as “tied demand-side subsidies”) are simply a policy instrument. As such, they are compatible with any legitimate goal of the welfare state including the regulation of public morality, building social solidarity, insuring individual risk, promoting economic stability, and providing an equitable distribution of resources. The authors provocatively assert that “a decision to invoke the voucher instrument does not in itself reveal much about the underlying character of the policies being pursued by the sponsoring government” (p. 2), and that opponents who think otherwise routinely make an “illogical connection between means and ends”
(p. 12). Their primary claim is that choice by individual consumers of public services on the demand side, coupled with competition on the supply side, with explicit, targeted subsidies following consumers rather than suppliers, ensures that decisions regarding the consumption and production of public services will be made efficiently, and that citizen beneficiaries will be empowered. Their secondary claim is that, where their primary claim does not
Reviews/Comptes rendus 391 appear to be borne out by the evidence, “this is often because of design failures” (p. 13).
Sharp-eyed skeptics may already see what they consider to be potential cracks in the argument. The authors admit that “that is not to say that reliance on vouchers is bereft of any normative content whatsoever,” since enabling citizen choice in the consumption of publicly funded goods and services increases “the scope for individual autonomy” (p. 2).
Could the autonomous citizen-consumers thus enabled (or their suppliers) make choices that are subversive of certain policy goals? While some critics of vouchers may confuse or elide means and ends, advocates of vouchers may too sharply distinguish them, over-simplifying what is an evolving and complex reciprocal relationship between citizens themselves and between citizens and the state. Not all political “voice” is calculated to advance the entrenched interests of public sector suppliers. And
“design failures” could serve as a convenient carpet under which to sweep all kinds of problems—many relating to social inequities and asymmetries of information among putatively equal “consumers,” posing difficulties for regulators of voucher markets at least as daunting as those faced by bureaucrats under current arrangements.
Nevertheless, this book makes the interesting point that many of our existing policies already display degrees of “voucherness.” For example, Canada’s medicare system is in effect a tied demand-side subsidy paid by a single government payer directly to physician and hospital suppliers on behalf of patients, making it a limited form of “voucher” which nonetheless restricts consumer choice and supplier competition. In another example, the authors point out that targeted subsidies to students coupled with deregulation of fees could be one answer to perennial debates about how to maintain both quality and quantity of post-secondary education (which can be jeopardized if fees are frozen) and affordability and access to that service (which can be jeopardized if fees are not frozen). The authors also tout the opportunity afforded by the “North American void in child-
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392 Reviews/Comptes rendus care provision [which] offers policy-makers a clean slate on which to work . . . comparatively free from the political impediments that often characterize the reform of established government services” (p. 144).
In these and five other policy fields (food stamps, lowincome housing, legal aid, primary and secondary education, and labour market training), they do a thorough and creditable job of showing that “design challenges” can, in principle, be met.
For Daniels and Trebilcock, the identification of basic health care as essentially a Rawlsian primary good only strengthens the argument for vouchers, since “removing the provision of such services from the discipline of the market . . . introduces a number of perverse incentives for both providers and purchasers,” although they admit that these incentives
“are not easily addressed” and that “striking the right balance between efficiency and equity is an extremely difficult enterprise” (p. 102). In general they prefer “managed competition” (i.e., the Clinton plan, or the Dutch system) to either the Canadian “fee for service” or the UK “purchaser/provider split” models, on the grounds that private health plan providers or insurers competing directly for the dollars of end-users, while still being obligated to provide a state-defined minimum level of services, are likely to be both more cost-conscious and better providers of consumer choice than either Canadian doctors and hospitals billing the government or British health care providers relying on historical relationships with District Health Authorities (p. 114). They make a good case on the demand side for a universal health card with contributions paid on a sliding scale based on both usage and income, and on the supply side for capitation (lump sums for patient management, with improved incentives for preventative treatment) as the method of payment to physicians.
Yet they also state that “we see no reason why for-profit entities should be prevented from participating in [hospitals] or indeed any other segment of the health care sector” (p. 119, emphasis added).
This is a sweeping statement to make in the absence of any discussion of how a voucher-based welfare state might be more exposed to international trade rules (an ironic omission in view of Trebilcock’s recognized expertise in international trade law). My best guess is that the World Trade Organization
General Agreement on Trade in Services (GATS)
Article I:3 exemption for services “supplied in the exercise of governmental authority” would be much less likely to extend to Canadian public services under voucher-based policy regimes because of the way this GATS provision is defined in Article I:3(c) in terms of the conditions of supply (i.e., “supplied neither on a commercial basis, nor in competition with one or more service suppliers”).
Would Canadian public health and education measures still be exempted from the North American Free Trade Agreement (NAFTA) national treatment provisions under Annex I of NAFTA after they have been “revolutionized” in the way that Daniels and Trebilcock advocate? A single payer voucher scheme serving clearly defined public ends might meet the Annex II definition of a “social service established or maintained for a public purpose,” although the US Office of the Trade Representative has already made statements which indicate that it would likely have an opposing view. In addition, the
NAFTA Chapter Eleven expropriation clause enables US or Mexican companies to bring compensation claims for any “indirect expropriation” of their investments in violation of Canada’s national treatment obligations. These concerns illustrate the larger point that foreign corporate for-profit suppliers of public services would not just become efficient “instruments” of competitive delivery. They would also become powerful rights-bearing political actors , who would use legal and political channels to advance their own ends, making attempts by government to reverse competitive and private provision or to extend public provision more expensive and difficult to do.
In sum, the analysis and evidence presented in
Rethinking the Welfare State is sufficiently persuasive to warrant a second look at voucher experiments in post-secondary student aid, labour market train-
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ing, legal aid, and perhaps daycare. Nevertheless, the case for the overall superiority of a pure voucher system in the more complex and multivalent areas of K–12 education and health care remains unconvincing. Daniels and Trebilcock give an honest accounting of the challenges of avoiding socially negative “tipping points” in program design, calibrating voucher schemes to minimize creamskimming, extra-billing, opting out, various moral hazards, and so on; but perfecting the welfare state
Reviews/Comptes rendus 393 may require something more than economic or regulatory acumen. It may take a sense of common destiny and purpose, and an ability to enforce and revise collective will in the public interest. These are democratic qualities, not just political ones, and they could be even harder to come by in a voucher world.
M
ARK
C
RAWFORD
, Assistant Professor, Centre for
State and Legal Studies, Athabasca University
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SARS in Context: Memory, History, Policy edited by J. Duffin and A. Sweetman. Kingston and
Montreal: McGill-Queen’s University Press, 2006.
As one of the editors comments in the introduction,
“this volume is not a history of SARS. . . . Anyone looking for a fuller chronology is encouraged to consult the three reports on the management and implications of SARS in Canada,” or the medical literature or international health and media websites.
Rather, this book is meant to provide individual commentaries on SARS from different viewpoints—scientific, historical, economic, and policy. With this starting point, I approached the book with a feeling of disappointment that was unfortunately heightened by reading the first section on memory, which consists of two chapters. The first is written by Young, the provincial coroner and Commissioner of Public
Safety and Security, and the second is by Zoutman, chair of the Scientific Advisory Committee created in Ontario during the crisis. From these accounts there appear to have been the usual complexities, perplexities, and uncertainties when trying to manage a rapidly changing set of circumstances with overloaded hospitals, suspicions of bioterrorism, tensions between agencies with similar or overlapping mandates, and the often unintended consequences of particular actions. But interestingly,
Zoutman concludes with two points that drive home an important message about SARS and similar “panics” and guide us to the second section of the book.
He cites the US Marines’ comment that policy is for amateurs, logistics for professionals. Managing
SARS, he argues, was all logistics but adds “with some intriguing implications,” and gives examples that point to some flexibility with respect to logistics. He also notes that the scientific committee spent a lot of time talking about historical cases. And this indeed is the thrust of the second section of the book, which, for me, is by far the most valuable, pointing as it does to the socially constructed nature of our responses to epidemics and crises and to the moral nature of policy discourse.
In a series of chapters, authors compare events during the time of SARS in Canada with past cases.
Many of the comparators are in fact cases of plague and, as Carmichael points out in her interesting piece on health care workers and their greater than average risk of infection and their recollection on treatment experiences, SARS was not plague. For me, the most useful chapters with respect to what we can learn from history for policy and public health practices are MacDougal’s on communicable disease-control procedures in Toronto from 1832 to
2003, and Feldberg’s on public health responses to other illnesses, especially tuberculosis. MacDougal reminds us why boards of health were created in the past and how they and their policies resulted from a mix of scientific evidence, politics, and morality as well as medical need. She reminds us, too, of the difficulties of dealing with circumstances that create panic and overwhelm information lines and with illnesses that may or may not be reportable.
Thus we get a sense of the immediacy of the logistical nightmare of living through SARS as well as the incremental, additive nature of clinical policymaking. Feldberg looks at the ways in which history was invoked by Canadian media during the
SARS epidemic, utilizing as a comparator reporting on the far more lethal and long-lasting TB episodes. She highlights the fearmongering and moral stances that underlie reporting and the use of history in reporting, these aspects being key for those advocating specific policy responses.
Feldberg notes that while limited in impact and duration, the SARS outbreak profoundly shaped public health care, exposing cracks in Canada’s health care system especially with respect to disease prevention and control. The SARS assessment and the three government reports laid a foundation for the Canadian Public Health Agency. What a wonderful set up this appears to be for the final section of the book on policy. But a critical assessment of policy and how the various commissions may or may not be implemented because of our political,

economic, cultural, and historical context is not provided. While the chapters are interesting, they are primarily treatises on the economic foundation of health behaviour, the challenges of intergovernmental relations, and the economic consequences of epidemics. SARS is a minor player in these chapters, although that is somewhat unfair to Wilson and
Lazar who take on issues raised by Naylor and Kirby and what these issues imply for health care governance. Finally, a conclusion to bring the themes of the book together with some policy discussion would have been helpful. Nonetheless, this collection is worth the read, especially in its highlighting of the constraints of history on public health practice and policy development.
J
OHN
E
YLES
, School of Geography and Earth Sciences, McMaster University

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The New Public Finance: Responding to Global
Challenges edited by Inge Kaul and Pedro Conceição. New York and Oxford: Published for the United Nations Development Program by Oxford University Press,
2006. pp. xix, 664.
The editors, the publisher, and the sponsoring organization (United Nations Development Program) of this book are to be congratulated. With a catchy title, plaudits on the cover from Nobel Laureates, eminent politicians, and the late Professor Richard Musgrave, it was hard to resist the opportunity to read and review this volume. What’s more, the book is very timely and the contents live up to the marketing.
In their overview, the editors make the case for the new ness of public finance as moving beyond the traditional focus on allocative efficiency and equity in the context of national polities toward incorporating these concepts into an analysis of globally provided public goods. Thus, issues in the definition of global public goods and their provision in the context of multilateral negotiations among nation-states as well as in the context of international institutions are the focus of the majority of the papers in the book.
The book consists of twenty-six short papers by eminent authors including, among others, Peggy
Musgrave, Barry Eichengreen, Robert Shiller, and Vito
Tanzi. The papers are organized into four thematic groups. The first deals with issues at the nation-state level under the heading of Taking the Outside World
Into Account. The three remaining groupings are set in the context of the New International Public Finance:
Relying on Public-Private Cooperation and Competition, Investing in Global Public Goods Provision
Abroad, and Enhancing Aid Efficiency.
In the first group, the principal unifying theme is the concept of risk management at the national level for governments facing external risks such as terrorism or fiscal pressures. Papers by Tanzi,
Musgrave, and Shiller explore the pressures faced by nation-states on their ability to provide social assistance, to maintain a variety of tax bases, and to manage the risks involved in sovereign borrowing.
In particular, Shiller stresses the potential gains that may accrue from the use of novel instruments such as GDP-indexed bonds as a means of risk management in the global sovereign debt market. Heller and
Sandler explore issues related to various forms of global spillovers and possible responses at the national level including enhancing the capacity of fiscally weaker states in order to heighten the efficiency of domestic measures, whether in response to terrorism or climate change.
In the second section, the papers take the issue of private-public partnerships into the global arena.
The discussion turns on an understanding of the interface between global foundations and nation-states in the context of project financing. Again, new approaches are suggested to improve information and the comfort level of investors. Jones provides a nuanced analysis using a public choice approach to demonstrate that international cooperation is underfinanced as a consequence of domestic perceptions of the tax price of such initiatives.
In the third part of the book, Conceição and
Mendoza provide the following examples of global public goods: climate stability, global communications networks and the internet, international financial stability, multilateral trade regimes, peace and security, polio eradication and smallpox eradication.
They then present a methodological construct designed to assess the costs and benefits of international contributions to provide an optimal amount of these goods. The other papers in this section offer tangible solutions on how to better achieve goods provision, whether through the creation of climate exchange markets (Sandor), compensation by richer countries for the efforts of poorer countries (King), the restructuring of the mechanisms for dealing with unsustainable sovereign debt (Eichengreen), or creating access to futures markets (Wyn Morgan). A
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Reviews/Comptes rendus 397 bias in favour of careful cost-benefit analysis and market solutions is evident; admittedly, the authors recognize the difficulties in creating appropriate conditions for the successful operation of markets.
The last section consists of seven papers that address issues associated with a more coherent and effective use of international aid. These issues include the debate as to whether loans or grants are more effective, and whether some of the instruments could be better designed to address ongoing concerns about accountability and coordination in the use of funds. In particular, Birdsall addresses the challenges of underfunded regional projects, especially given both geographical and political obstacles to coordination.
the major challenges facing policy-makers globally—climate change, development assistance, and financial restructuring. Innovative approaches to solving problems with significant international externalities are identified but, as many of the authors point out, national polities must ultimately be persuaded of the benefits of funding the costs of global public goods at a domestic level. This book will be useful for practitioners and for students. The bibliographies are extensive and the related web links contain further papers that expand upon the suggestions made by the principal authors. The book also furthers the United Nations Development Program/
World Bank effort in providing practical manuals and a renewed emphasis on capacity building in local and subnational governments.
In summary, this book provides an excellent introduction to the panoply of recently engineered international institutional mechanisms as well as to
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, Provincial-Local Finance Division,
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