Ian Hurd: Good medicine for bad politics? Rethinking the international rule of law

When an international crisis erupts it is common to hear experts say that the situation will be improved if all parties stick to international law. From the Syrian war to Burma’s massacres to Guantanamo torture, faithful compliance with the law of nations is often prescribed as the best way forward. I wrote this book because I was curious about the idea that international law is good medicine for bad policies, a kind of non-political, universal good. International law often appears like a magical machine that takes in hot disagreements about how things should unfold and produces cool solutions that serve the interests of everyone. How to do Things with International Law examines this idea with a degree of skepticism, holds it up against some empirical cases, and suggests more realistic ways of thinking about the dynamics between international politics and international law.

The standard model of international law is built on two components, one more institutional and the other more normative. On the one hand, international law is seen as providing a framework for the coexistence for governments. Laws on diplomatic immunity, non-interference across borders, and the peaceful settlement of disputes help organize inter-governmental relations and give a kind of civility to world politics. On this view, following the rules makes it possible for diplomacy and negotiation to happen. The second, normative strand adds substantive values such as a commitment to human rights, to the protection of refugees, and against nuclear proliferation. Here, following the rules is said to be important because it enhances human welfare and the other goals encoded by the law. The two strands agree that compliance with international rules is beneficial and that violations of the rules lead to international disorder at best—and violence and chaos at worst.

This represents what I see as a conventional view of the international rule of law. It is a commitment to the idea that governments should follow their legal obligations and that when they do the world is a better place. It is an ideology, in the sense noted by Shirley Scott.

My book explores the premise and the power of this ideology and its influence in global politics. I look at the presumptions that it rests on and the practices it makes possible. I see the power of international law on display in the ways that governments and others make use of legal resources and categories to understand, justify, and act in the world. This is a social power, built on the idea of the rule of law and employed by governments in the service of a wide array of goals.

The book does not aim to answer questions about why states comply with or flout the law. Instead, it asks what they do with the law – and why, and with what effects. As a methodology, this points toward looking for where international law appears in the strategies of governments. On substance, it suggests a close connection between international law and political power. International law has influence in certain situations, when powerful actors find it useful. For instance, the US gave legal arguments for why Russia’s annexation of Crimea was unlawful and therefore should not be accepted by other countries. In response, Russia gave legal arguments to sustain its behavior. Legal experts may well conclude that one side had the stronger legal argument; disagreements about interpretation and application are central to legal practices. But my curiosity comes from seeing both sides use legal arguments as political resources in defense of their preferred outcome.

The use of law to legitimize state policy is a central feature of contemporary international politics. And yet to some, the instrumental use of law is said to reveal the inappropriate politicization of law, contradicting their idea of the rule of law itself. I see it the other way around: the international rule of law is the instrumental use of law. The legalization of international politics gives legal rationalizations their political weight. Their political weight makes them important sites of contestation. In a legalized world, it makes sense for actors to contest their actions in the language of law. To borrow Helen Kinsella’s example, the line between civilian and combatant in a war zone distinguishes those who should be killed from those who should not; the line is defined by the Geneva Conventions and other legal instruments and it is brought to life (and death) as governments interpret it in relation to those whom they wish to kill. Legal categories have political valence and this makes them important resources of power and thus worth fighting over. How else to make sense of the energy that governments put into shaping rules that reflect their interests?

Recognizing the close connection between international and power politics opens a way to considering the political productivity of international law. Law is not only regulative and constraining; it is also empowering and permissive. By defining some acts as unlawful and others as lawful, it makes the former harder for governments to do (or more expensive) and the latter easier. The availability of a legal justification smoothes the way for action just as much as its unavailability impedes it. If we look at one side of this balance, we see for instance that the UN Charter outlaws the use of force by governments and limits their autonomy with respect to going to war. On the other side the Charter also authorizes them to go to war as needed for ‘self-defense’ against an armed attack. In ‘self-defense,’ the Charter creates a new legal resource with the capacity to differentiate between a lawful and an unlawful war. This is a powerful tool for governments, a means for legalizing their recourse to force, and they have used it with enthusiasm since 1945. The Charter produced something that previously didn’t exist and as a consequence changed how governments go to war, how they justify their wars, and how they think about their security in relation to external threats.

With the political productivity of international law in mind, the book shows that international law is inseparable from politics and thus from power. For powerful governments, international law puts an instrument in their tool-kit as they seek to influence what happens in the world, and for the less powerful it is a tool that they might also seek to take up when they can but may equally be a means of control whose influence they seek to escape.

There isn’t much evidence to back up the presumption that international law steers global affairs naturally toward better outcomes. How to Do Things With International Law is neither a celebration of international law nor an indictment. It offers instead a look into its practical politics, a messy world of power politics that is as full of interpretation, ambiguity, violence and contestation as any other corner of social life.

HurdIan Hurd is associate professor of political science at Northwestern University. He is the author of After Anarchy and How to Do Things with International Law.

Lawrence Baum: Ideology in the Supreme Court

When President Trump nominated Neil Gorsuch for a seat on the Supreme Court, Gorsuch was universally regarded as a conservative. Because of that perception, the Senate vote on his confirmation fell almost completely along party lines. Indeed, Court-watchers concluded that his record after he joined the Court late in its 2016-2017 Term was strongly conservative. But what does that mean? One possible answer is that he agreed most often with Clarence Thomas and Samuel Alito, the justices who were considered the most conservative before Gorsuch joined the Court. But that answer does not address the fundamental question: why are the positions that those three justices took on an array of legal questions considered conservative?

The most common explanation is that liberals and conservatives each start with broad values that they then apply in a logical way to the various issues that arise in the Supreme Court and elsewhere in government. But logic can go only so far to explain the ideological labels of various positions. It is not clear, for instance, why liberals are the strongest proponents of most individual rights that the Constitution protects while conservatives are the most supportive of gun rights. Further, perceptions of issues sometimes change over time, so that what was once considered the liberal position on an issue is no longer viewed that way.

Freedom of expression is a good example of these complexities. Beginning early in the twentieth century, strong support for freedom of speech and freedom of the press was regarded as a liberal position. In the Supreme Court, the justices who were most likely to support those First Amendment rights were its liberals. But in the 1990s that pattern began to change. Since then, when the Court is divided, conservative justices provide support for litigants who argue that their free expression rights have been violated as often as liberals do.

To explain that change, we need to go back to the period after World War I when freedom of expression was established as a liberal cause. At that time, the government policies that impinged the most on free speech were aimed at political groups on the left and at labor unions. Because liberals were more sympathetic than conservatives to those segments of society, it was natural that freedom of expression became identified as a liberal cause in the political world. In turn, liberal Supreme Court justices gave considerably more support to litigants with free expression claims than did their conservative colleagues across the range of cases that the Court decided.

In the second half of the twentieth century, people on the political left rethought some of their assumptions about legal protections for free expression. For instance, they began to question the value of protecting “hate speech” directed at vulnerable groups in society. And they were skeptical about First Amendment challenges to regulations of funding for political campaigns. Meanwhile conservatives started to see freedom of expression in a more positive light, as a protection against undue government interference with political and economic activity.

This change in thinking affected the Supreme Court in the 1990s and after. More free expression cases came to the Court from businesses and people with a conservative orientation, and a conservative-leaning Court was receptive to those cases. The Court now decides few cases involving speech by labor unions and people on the political left, and cases from businesses and political conservatives have become common. Liberal justices are more favorable than their conservative colleagues to free expression claims by people on the left and by individuals with no clear political orientation, but conservative justices provide more support to claims by businesses and conservatives. As a result, what had been a strong tendency for liberal justices to give the most support to freedom of expression across the cases that the Court decided has disappeared.

The sharp change in the Supreme Court’s ideological orientation in free speech cases is an exception to the general rule, but it underlines some important things about the meaning of ideology. The labeling of issue positions as conservative or liberal comes through the development of shared understandings among political elites, and those understandings do not necessarily follow from broad values. In considerable part, they reflect attitudes toward the people and groups that champion and benefit from particular positions. The impact of those attitudes is reflected in the ways that people respond to specific situations involving an issue: liberal and conservative justices, like their counterparts elsewhere in government and politics, are most favorable to free speech when that speech comes from segments of society with which they sympathize. When we think of Supreme Court justices and the positions they take as conservative and liberal, we need to keep in mind that to a considerable degree, the ideological labeling of positions in ideological terms is arbitrary. Justice Gorsuch’s early record on the Court surely is conservative—but in the way that conservative positions have come to be defined in the world of government and politics, definitions that are neither permanent nor inevitable.

BaumLawrence Baum is professor emeritus of political science at Ohio State University. His books include Judges and Their Audiences, The Puzzle of Judicial BehaviorSpecializing the Courts, and Ideology in the Supreme Court.

Edward Balleisen on the long history of fraud in America

BalleisenDuplicitous business dealings and scandal may seem like manifestations of contemporary America gone awry, but fraud has been a key feature of American business since its beginnings. The United States has always proved an inviting home for boosters, sharp dealers, and outright swindlers. Worship of entrepreneurial freedom has complicated the task of distinguishing aggressive salesmanship from unacceptable deceit, especially on the frontiers of innovation. At the same time, competitive pressures have often nudged respectable firms to embrace deception. In Fraud: An American History from Barnum to Madoff, Edward Balleisen traces the history of fraud in America—and the evolving efforts to combat it. Recently, he took the time to answer some questions about his book.

Can you explain what brought you to write this book?

EB: For more than two decades, I have been fascinated by the role of trust in modern American capitalism and the challenges posed by businesses that break their promises. My first book, Navigating Failure: Bankruptcy and Commercial Society in Antebellum America, addressed this question by examining institutional responses to insolvency in the mid-nineteenth-century. This book widens my angle of vision, considering the problem of intentional deceit in the United States across a full two centuries.

In part, my research was motivated by the dramatic American fraud scandals of the late 1990s and early 2000s, which demonstrated how badly duplicitous business practices could hurt investors, consumers, and general confidence in capitalism. I wanted to understand how American society had developed strategies to constrain such behavior, and why they had increasingly proved unequal to the task since the 1970s.

In part, I was gripped by all the compelling stories suggested by historical episodes of fraud, which often involve charismatic business-owners, and often raise complex questions about how to distinguish enthusiastic exaggeration from unscrupulous misrepresentation.

In part, I wanted to tackle the challenges of reconstructing a history over the longer term. Many of the best historians during the last generation have turned to microhistory – detailed studies of specific events or moments. But there is also an important place for macro-history that traces continuity and change over several generations.

In addition, my research was shaped by increasingly heated debates about the costs and benefits of governmental regulation, the extent to which the social legitimacy of market economies rest on regulatory foundations, and the best ways to structure regulatory policy. The history of American anti-fraud policy offers compelling evidence about these issues, and shows that smart government can achieve important policy goals.

What are the basic types of fraud?

EB: One important distinction involves the targets of intentional economic deceit. Sometimes individual consumers defraud businesses, as when they lie on applications for credit or life insurance. Sometimes taxpayers defraud governments, by hiding income. Sometimes employees defraud employers, by misappropriating funds, which sociologists call “occupational fraud.” I focus mostly on deceit committed by firms against their counterparties (other businesses, consumers, investors, the government), or “organizational fraud.”

Then there are the major techniques of deception by businesses. Within the realm of consumer fraud, most misrepresentations take the form of a bait and switch – making big promises about goods or services, but then delivering something of lesser or even no quality.

Investment fraud can take this form as well. But it also may depend on market manipulations – spreading rumors, engaging in sham trades, or falsifying corporate financial reports in order to influence price movements, and so the willingness of investors to buy or sell; or taking advantage of inside information to trade ahead of market reactions to that news.

One crucial type of corporate fraud involves managerial looting. That is, executives engage in self-dealing. They give themselves outsized compensation despite financial difficulties, direct corporate resources to outside firms that they control in order to skim off profits, or even drive their firms into bankruptcy, and then take advantage of inside information to buy up assets on the cheap.

Why does business fraud occur?

EB: Modern economic life presents consumers, investors, and businesses with never-ending challenges of assessing information. What is the quality of goods and services on offer, some of which may depend on newfangled technologies or complex financial arrangements? How should we distinguish good investment opportunities from poor ones?

In many situations, sellers and buyers do not possess the same access to evidence about such issues. Economists refer to this state of affairs as “information asymmetry.” Then there is the problem of information overload, which leads many economic actors to rely on mental short-cuts – rules of thumb about the sorts of businesses or offers that they can trust. Almost all deceptive firms seek to look and sound like successful enterprises, taking advantage of the tendency of consumers and investors to rely on such rules of thumb. Some of the most sophisticated financial scams even try to build confidence by warning investors about other frauds.

A number of common psychological tendencies leave most people susceptible to economic misrepresentations at least some of the time. Often we can be taken in by strategies of “framing” – the promise of a big discount from an inflated base price may entice us to get out our wallets, even though the actual price is not much of a bargain. Or a high-pressure stock promoter may convince us to invest by convincing us that we have to avoid the regret that will dog us if we hold back and then lose out on massive gains.

How has government policy toward business fraud changed since the early nineteenth century?

EB: In the nineteenth century, Anglo-American law tended to err on the side of leniency toward self-promotion by businesses. In most situations, the key legal standard was caveat emptor, or let the buyer beware. For the judges and legislators who embraced this way of thinking, markets worked best when consumers and investors knew that they had to look out for themselves. As a result, they adopted legal rules that often made it difficult for economic actors to substantiate allegations of illegal deceit.

For more than a century after the American Civil War, however, there was a strong trend to make anti-fraud policies less forgiving of companies that shade the truth in their business dealings. As industrialization and the emergence of complex national markets produced wider information asymmetries, economic deceit became a bigger problem. The private sector responded through new types of businesses (accounting services, credit reporting) and self-regulatory bodies to certify trustworthiness. But from the late nineteenth century into the 1970s, policy-makers periodically enacted anti-fraud regulations that required truthful disclosures from businesses, and that made it easier for investors and consumers to receive relief when they were taken for a ride.

More recently, the conservative turn in American politics since the 1970s led to significant policy reversals. Convinced that markets would police fraudulent businesses by damaging their reputations, elected officials cut back on budgets for anti-fraud enforcement, and rejected the extension of anti-fraud regulations to new financial markets like debt securitization.

Since the Global Financial Crisis of 2007-08, which was triggered in part by widespread duplicity in the mortgage markets, Americans have again seen economic deceit as a worrisome threat to confidence in capitalist institutions. That concern has prompted the adoption of some important anti-fraud policies, like the creation of the Consumer Financial Protection Bureau. But it remains unclear whether we have an entered a new era of greater faith in government to be able to constrain the most harmful forms of business fraud.

Many journalists and pundits have characterized the last several decades as generating epidemics of business fraud. What if anything is distinctive about the incidence of business fraud since the 1970s?

EB: Fraud episodes have occurred in every era of American history. During the nineteenth century, railroad contracting frauds abounded, as did duplicity related to land companies and patent medicine advertising. Deception in the marketing of mining stocks became so common that a prevalent joke defined “mine” as “a hole in the ground with a liar at the top.” From the 1850s through the 1920s, Wall Street was notorious for the ruthless manner in which dodgy operators fleeced unsuspecting investors.

Business frauds hardly disappeared in mid-twentieth-century America. Indeed, bait and switch marketing existed in every urban retailing sector, and especially in poor urban neighborhoods. Within the world of investing, scams continued to target new-fangled industries, such as uranium mines and electronics. As Americans moved to the suburbs, fraudulent pitchmen followed right behind, with duplicitous franchising schemes and shoddy home improvement projects.

The last forty years have also produced a regular stream of major fraud scandals, including the Savings & Loan frauds of the 1980s and early 1990s, contracting frauds in military procurement and healthcare reimbursement during the 1980s and 1990s, corporate accounting scandals in the late 1990s and early 2000s, and frauds associated with the collapse of the mortgage market in 2007-2008.

Unlike in the period from the 1930s through the 1970s, however, business fraud during the more recent four decades have attained a different scale and scope. The costs of the worst episodes have reached into the billions of dollars (an order of magnitude greater than their counterparts in the mid-twentieth century, taking account of inflation and the overall growth in the economy), and have far more frequently involved leading corporations.

Why is business fraud so hard to stamp out through government policy?

EB: One big challenge is presented by the task of defining fraud in legal terms. In ordinary language, people often refer to any rip-off as a “fraud.” But how should the law distinguish between enthusiastic exaggerations, so common among entrepreneurs who just know that their business is offering the best thing ever, and unacceptable lies? Drawing that line has never been easy, especially if one wants to give some leeway to new firms seeking to gain a hearing through initial promotions.

Then there are several enduring obstacles to enforcement of American anti-fraud regulations. Often specific instances of business fraud impose relatively small harms on individuals, even if overall losses may be great. That fact, along with embarrassment at having been duped, has historically led many American victims of fraud to remain “silent suckers.” Proving that misrepresentations were intentional is often difficult; as is explaining the nature of deception to juries in complex cases of financial fraud.

The most effective modes of anti-fraud regulation often have been administrative in character. They either require truthful disclosure of crucial information to consumers and investors, at the right time and incomprehensible language, or they cut off access to the marketplace to fraudulent businesses. Postal fraud orders constitute one example of the latter sort of policy. When the post office determines that a business has engaged in fraudulent practices, it can deny it the use of the mails, a very effective means of policing mail-order firms. Such draconian steps, however, have always raised questions about fairness and often lead to the adoption of procedural safeguards that can blunt their impact.

How does this book help us better understand on contemporary frauds, such as the Madoff pyramid scheme or the Volkswagen emissions scandal?  

EB: One key insight is that so long as economic transactions depend on trust, and so long as there are asymmetries of information between economic counterparties, there will be significant incentives to cheat. Some economists and legal thinkers argue that the best counter to these incentives are reputational counterweights. Established firms, on this view, will not take actions that threaten their goodwill; newer enterprises will focus on earning the trust of creditors, suppliers, and customers. And heavy-handed efforts to police deceptive practices remove the incentive for economic actors to exercise due diligence, while raising barriers to entry, and so limiting the scope for new commercial ideas. This way of thinking shares much in common with the philosophy of caveat emptor that structured most American markets in the nineteenth-century.

But as instances like the Madoff investment frauds and Volkswagen’s reliance on deceptive emissions overrides suggest, reputational considerations have significant limits. Even firms with sterling reputations are susceptible to fraud. This is especially the case when regulatory supports, and wider social norms against commercial dishonesty, are weak.

The title of this book is Fraud: An American History from Barnum to Madoff. What do you see as uniquely American about this history of fraud?  

EB: The basic psychological patterns of economic deception have not changed much in the United States. Indeed, these patterns mirror experimental findings regarding vulnerabilities that appear to be common across societies. Thus I would be skeptical that the tactics of an investment “pump and dump” or marketing “bait and switch” would look very different in 1920s France or the Japan of the early 21st century than in the U.S. at those times.

That said, dimensions of American culture have created welcome ground for fraudulent schemes and schemers. American policy-makers have tended to accord great respect to entrepreneurs, which helps to explain the adoption of a legal baseline of caveat emptor in the nineteenth century, and the partial return to that baseline in the last quarter of the twentieth-century.

The growth of the antifraud state, however, likely narrowed the differences between American policies and those in other industrialized countries. One hope of mine for this book is that it prompts more historical analysis of antifraud regulation elsewhere – in continental Europe, Latin America, Africa, and Asia. We need more detailed histories in other societies before we can draw firmer comparative conclusions.

What do you see as the most important implications of this book for policy-makers charged with furthering consumer or investor protection?

EB: Business fraud is a truly complex regulatory problem. No modern society can hope to eliminate it without adopting such restrictive rules as to strangle economic activity. But if governments rely too heavily on the market forces associated with reputation, business fraud can become sufficiently common and sufficiently costly to threaten public confidence in capitalist institutions. As a result, policy-makers would do well to focus on strategies of fraud containment.

That approach calls for:

• well-designed campaigns of public education for consumers and investors;
• empowering consumers and investors through contractual defaults, like cooling off periods that allow consumers to back out of purchases;
• cultivating social norms that stigmatize businesses that take the deceptive road;
• building regulatory networks to share information across agencies and levels of government, and between government bodies and the large number of antifraud NGOs; and
• a determination to shut down the most unscrupulous firms, not only to curb their activities, but also to persuade everyone that the state is serious about combating fraud.

Edward Balleisen talks about his new book:

Edward J. Balleisen is associate professor of history and public policy and vice provost for Interdisciplinary Studies at Duke University. He is the author of Navigating Failure: Bankruptcy and Commercial Society in Antebellum America and Fraud: An American History from Barnum to Madoff. He lives in Durham, North Carolina.

The Law is a White Dog author Colin Dayan debunks the rationality of law

What do abused dogs, prisoners tortured in Guantánamo and supermax facilities, and slaves killed by the state have in common? They have all been deprived of their personhood by the law. In The Law is a White Dog, Colin Dayan shows how the law can be used to dehumanize and marginalize, even as it upholds civil order. Dayan puts the topic in historical context, showing how these issues are still prevalent today. In an interview with WFHB Indiana, the author speaks to recent instances of police brutality. Listen for a fresh take on a a timely issue.
Dayan

David Kennedy on remaking our technocratic world

KennedyIn today’s world, expert opinion is particularly revered in political and economic life. But as experts engage one another on a terrain of irresolvable argument, a world of astonishing injustice and inequality is born.  David Kennedy’s new book, A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy draws on his personal experience working with international lawyers, human rights advocates, and an array of humanitarian strategists. The book reveals the power struggle occurring between those who have a stranglehold on the knowledge and those who don’t, arguing that expertise can be used to promote justice rather than inequality. Recently, Kennedy agreed to answer a few questions about his book.

Why a world of “struggle?”

DK: In this book, I try to reframe the international situation less as order or system than as a continual struggle, hence the title, A World of Struggle. When speaking about international affairs, the social sciences often start with conflict – a Hobbesian state of nature or the competitive market of Adam Smith – and then work to explain how things nevertheless turn out well ordered: through a “balance of power” or “invisible hand.” In my picture, thousands of conflicts undertaken by all sorts of people at once generate the world we live in, including terribly unjust things it seems impossible to change. Struggle and conflict are more prevalent and constitutive of our everyday world than we realize.

You write about knowledge and expertise – aren’t economic and military power more important in global struggle?

DK: It’s true, I am particularly interested in the role of ideas. I do think they’re more important than we realize. Although we think of international affairs as an arena of raw power, a great deal is argument and assertion. People drop bombs to “send messages” and transform economic power into a better deal through negotiation. In the shadow of coercion more often than through force.

People in places like Davos or Washington tell lots of stories about the world: stories about what an economy is, what politics can accomplish, about the limits and potential of law. Their stories make some problems visible, some actors central – and others invisible. The technical work people undertake as they struggle in the shadow of these stories arranges the world, distributing wealth, status and opportunity. In the book, I examine big ideas about things like economic development, international law or world trade to understand how they frame and fuel everyday battles for advantage among businessmen, bureaucrats, politicians and citizens.

Are experts too important in world affairs? Lots of people criticize the European Union, for example, as “technocratic” and decry the “democracy deficit.”

DK: Our world is a technocratic one. Experts have lots of authority and it is difficult to change things without speaking their language. And, as we all know, technocratic language is as prone to irrationality, confusion and conflicting objectives as any other. But “expertise” is not the exclusive province of specialists and professionals. All of us, from politicians, to entrepreneurs, to activists speak some vulgate version of languages once owned more exclusively by “experts.” As a result, it is not so clear there is a “political” or “democratic” alternative once democracy and rulership have themselves become technocratic practices.

To me, the problem is not experts run rampant, displacing more appropriate political, ethical or commercial ways of thinking. The problem is all of us – our human capacity for responsible decision and political engagement has been dulled. Or perhaps, like professional talking heads, we’ve all embraced the reassuring comfort of thinking we “know,” rather than face the anxiety of having to choose.

How does your work fit into the literature about “expertise?”

DK: Other studies of “expertise” focus on what makes expert knowledge distinctive. I focus on the continuities between their work and that of many others. Expert knowledge is human knowledge: a blend of conscious, semiconscious and wholly unconscious ideas, full of tensions and contradictions, inhabited by people who thing, speak and act strategically. If you think “expertise” is distinct from politics, you will worry about keeping experts and political leaders in their respective places. At the global level, this constitutional concern is less pressing because there is no constituted political alternative. It really is expertise all the way down. As a result, I worry less about the proper boundaries for expert knowledge and focus instead on the how of expert rule: the modes of public reasoning that arise where practices of power and the articulation of ideas intersect.

What about law? How important is law in world affairs?

DK: Very. People struggle over legal arrangements because they matter. The domain outside the nation is neither an anarchic political space nor a domain of market freedom immune from regulation. The basic elements of global economic and political life – capital, labor, credit, money and liquidity, as well as sovereignty and right – are creatures of law which could be put together in lots of ways. We forget how strange it is that if you own something here, you also own it when you get off the plane elsewhere. Yet, as businessmen and military leaders well know, our international world is the product of intense and ongoing projects of regulation and institutional management. A global production chain is a complex set of legal arrangements, cross-cut by all kinds of formal and informal norms, public and private regulation. Small changes in the rules can shift who wins and who loses.

Law is often at struggle because it distributes: allocating and protecting gains from economic activity or political conflict. Law is also a tool of struggle: I claim a legal privilege to put you out of business; you claim the legal authority to prevent me from combining with rivals to do so. I claim the right to overfly your territory or protect your minorities – or you claim the right to shoot down my plane and attack my humanitarian convoy.

Although we think of law as a source of order – the “legal order” – or as a vocabulary for criticizing government – as with human rights — I focus on the distributive role of law and the resulting push and pull about what it means and how it should operate.

Law does seem to be everywhere today – what has fueled its expansion?

DK: The ubiquity of law owes less to lawyers than to the appetite all kinds of people have for a common and malleable language of engagement. As law has become ever more diverse or plural, it has also become more prevalent. Law’s malleability both encourages people to assert their interests as legal rights – even when their interests are opposed – and opens numerous paths for settlement. The legal vocabulary today is widely available for both ethnical assertion and strategic pragmatism. In this, modern law is typical of many sophisticated expert practices: those who use it do so with a strange blend of confidence and disenchantment. Unfortunately, in the process, people can lose their ethical moorings: that, I believe, is the triumph and tragedy of global rule by expertise.

You offer “modern law and modern war” as an example of the contemporary powers and tragic consequences of expertise. What’s different now?

DK: Warfare has become ever more entangled with law as law has lost its distinctive clarity. Law now shapes the institutional, logistical and physical landscape of war and the battlespace has become as legally saturated as the rest of modern life. At the same time, law has become more malleable, the doctrinal materials used to distinguish war and peace or legal and illegal state violence ever more fluid. No longer a matter of clear rules and sharp distinctions, international law speaks with many voices. As it has become a more plastic medium, law has enabled a strategic management of war’s boundaries – when war ends, when it starts, what damage is collateral and what not. It now offers everyone a vocabulary for marking legitimate power and justifiable death. People everywhere can find reason to affirm their cause and decry the perfidy of their opponent.

When things go well, modern law can provide a framework for talking across cultures about the justice and efficacy of wartime violence. More often, the modern partnership of war and law leaves all parties feeling their cause is just and no one feeling responsible for the deaths and suffering of war. Law and war have become oddly reciprocal, communicating and killing along the boundaries of the world system, at once drenched in the certainty of ethics and detached from the responsibility of politics.

You end on an optimistic note – that people could pull back the dysfunctions of expert rule.

DK: I certainly hope they might. It would require inhabiting our expertise in a new way, less as pragmatic and sophisticated strategic actors than as people for whom, as Max Weber once wrote, politics is a vocation: with passion, with proportion and with responsibility in an irrational world that cannot be known or predicted. My proposal is not an escape from expertise or institutional recipe for its better use. It is a habit of mind, a personal and professional practice, to harness a long tradition of heterodox intellectual and political work to change the world. And to cultivate the ethical possibility of acting when we realize we do not know.

David Kennedy is the Manley O. Hudson Professor of Law and Director of the Institute for Global Law and Policy at Harvard Law School. He is the author of The Rights of Spring: A Memoir of Innocence Abroad; Of War and Law; and The Dark Sides of Virtue: Reassessing International Humanitarianism, and the editor of The Canon of American Legal Thought (with William Fisher) (all Princeton). His most recent book is A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy.

How Texas law will shape the women’s vote

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The Explosive Potential of the Whole
Woman’s Health Case

by Nancy Woloch

On March 2 the Supreme Court will hear arguments about a 2013 Texas law that affects access to abortion. The law at issue in Whole Woman’s Health v. Cole requires doctors who perform abortions to have admitting privileges at a nearby hospital (no more than thirty miles from the clinic). It also requires abortion clinics to have facilities equivalent to those at an outpatient surgical center, that is, more equipment than Texas law demands in doctors’ offices where more hazardous procedures such as colonoscopies or liposuctions are performed. The rise of the Whole Woman case just as an election looms may provoke voters in ways unsought by sponsors of the Texas law.

Several Texas clinics challenged the law, but a federal appeals court, the Fifth Circuit, upheld the new requirements. The Supreme Court now faces several questions: Does the law protect women’s health, as Texas claims? Does the law impose an “undue burden” on women who seek abortions? The “undue burden” consideration arose in Planned Parenthood v. Casey (1992), which confirms the right to abortion set forth in Roe v. Wade (1973). A law can be an undue burden, states the Casey decision, if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” It is likely that the Supreme Court, when it reviews the Texas case, will further explicate “undue burden,” “substantial obstacle,” and, especially, “purpose or effect.”

Texas claims that it has “wide discretion” to pass medical regulations, that it enacted the 2013 law to protect the health of those who seek abortions, that the law ensures qualified doctors, and that it cuts delay if a patient needs a hospital. The clinics contend that the state requirements were not designed to promote women’s health, that the law is a tactic to close clinics, and that it imperils women’s health by “reducing access to safe and legal abortion.” Since 2013, critics of the law charge, the 42 clinics that once provided access to abortion in Texas now number nineteen and would dwindle to ten if the law survives review. Amicus briefs that support the clinics have started to accumulate, including a brief by historians who work with legal issues. Laws that claim to protect women’s health can restrict women’s choice, the historians state, and thus “warrant careful scrutiny by this Court.” The Court will consider whether the Fifth Circuit decision reflects precedents in abortion law, as supporters of the Texas law claim, or whether the Fifth Circuit acted in error when it enabled Texas to enforce the new law, as its detractors argue.

The Whole Woman’s Health case, to be decided in June 2016, has explosive potential. The Supreme Court has not issued a major decision on abortion since Gonzales v. Carhart (2007), which upheld a federal law barring what is called “partial birth” abortion. The Whole Woman’s Health decision will affect the options of women in Texas, especially in rural Texas, who may find the right to an abortion out of reach. The decision will also affect women in Mississippi, where a kindred case, one that involves hospital admission requirements for doctors, has arisen and where only a single clinic that provides abortion remains. The Supreme Court has not yet decided whether to consider the Mississippi case, Currier v. Jackson Women’s Health Organization. The decision in Whole Woman’s Health, finally, will reach women in other states that have enacted abortion regulations similar to those in Texas, such as Wisconsin, Louisiana, and Alabama, and in states that intend to do so.

The Whole Woman’s Health decision will have further ramifications in an election year. Whichever way the Court may go—and there has no been signal as to what might happen—the conflict over the Texas law is likely to sway the women’s vote. The reappearance of a major abortion case will remind undecided women voters that state legislators, who are likely to be men (in Texas the lawmakers of 2013 were 80 percent male), can voice opinions that have an impact on women’s health – or even act to impede women’s rights under the pretext of protecting women’s health. Similarly, the Texas case will remind women voters of what a yet more conservative Supreme Court, with new members chosen by a future president, might decide. Overall, the case will prompt women voters to think about the fragility of women’s rights. Whatever happens in the Supreme Court, the timing of the Whole Woman’s Health decision may well advantage Democrats.

Woloch jacketNancy Woloch teaches history at Barnard College, Columbia University. Her books include A Class by Herself, Women and the American Experience and Muller v. Oregon: A Brief History with Documents.

The Tangled Trials of John Demjanjuk

Lawrence Douglas’s The Right Wrong Man centers on the extraordinary case of John Demjanjuk: twice stripped of US citizenship and deported to face trial for crimes against humanity; sentenced to death in Israel, but freed when mistaken identity was proven; then convicted a second time in a German court as accessory to the murder of 28,000 Jews at the Sobibor death camp. Demjanjuk’s case provides a prism through which Douglas explores the challenges faced in establishing a legal framework within which to try those responsible for the Holocaust. Even in outline, the tangled succession of legal proceedings that continued for the last thirty-five years of Demjanjuk’s long life is fascinating and thought-provoking.

Iwan Demjanjuk was born in 1920 in the Ukraine. Drafted into the Red Army in 1941, he was taken as a prisoner of war in the Battle of the Kerch. Rather than imprisonment, he took the option of working for his captors as a camp guard, serving at Majdanek, Sobibor, and Flossenbürg. The end of the war found him in Germany, one of the millions left homeless or stateless. He was granted a visa under the Displaced Persons program and arrived in the US in 1952. In 1958, he became a naturalized citizen and changed his name to John.

Trawniki ID card for John Demjanjuk

Demjanjuk’s ID card from Trawniki, the SS training facility for volunteer guards.
Demjanjuk’s defense claimed it was a KGB forgery.
Public Domain, via Wikimedia Commons.

Demjanjuk’s troubles began in 1975 when his name appeared on a (Soviet sourced) list of 70 Ukrainians guilty of war crimes living in the US. The INS decided to pursue denaturalization on the basis that he had lied on his visa application in claiming no involvement with the Nazi camps. Matters became more complicated when no fewer than ten survivors from the Treblinka death camp identified his picture as that of the notoriously sadistic and brutal camp guard known as Ivan the Terrible. He was denaturalized in 1981, and deportation proceedings followed. While his appeals against deportation went through the US courts, Israel filed for extradition so that Demjanjuk could face trial in Jerusalem. In 1986 he was extradited – by then four of the eyewitnesses who had linked him with Treblinka had passed away.

His trial in Israel was a public event on the scale of Eichmann’s trial in 1961. Despite moments of high courtroom drama, Demjanjuk maintained his innocence, confident in the knowledge that he had never been to Treblinka, could not be Ivan the Terrible. Nevertheless, on April 18th 1988 he was convicted and sentenced to execution. More than five years later his sentence was overturned by the Israeli Supreme Court on the basis of documents newly discovered in the Soviet archives that indicated that another Iwan, Iwan Marchenko, had run the Treblinka gas chambers. Demjanjuk was granted re-entry to the US, and the order of denaturalization vacated.

Unfortunately for Demjanjuk, the Soviet archival documents that had saved his life clearly linked him to the three camps at which he had worked. Moreover, despite strong criticism of the Office of Special Investigations (OSI) that had prepared the original case for denaturalization, Judge Matia had vacated his denaturalization order “without prejudice”, allowing fresh proceedings to be brought. This the OSI duly did. In 2002 Demjanjuk was again stripped of US citizenship and deportation proceedings followed in 2004.

However it was not until 2009 that a country willing to take the deportee was found – on March 10th, 2009, German courts issued a warrant for his arrest, and in November Demjanjuk’s final trial began in Munich. The German court concluded that as a guard at Sobibor Demjanjuk had necessarily been involved in the murder of 28,060 people and sentenced him to five years imprisonment. In 2012, still awaiting appeal of the German verdict, Demjanjuk died in a nursing home in Bavaria. Demjanjuk never admitted any guilt or culpability, claiming to the very end that he was the wrong man.

An award-winning novelist as well as legal scholar, Douglas offers a compulsively readable history of Demjanjuk’s bizarre case. The Right Wrong Man is both a gripping eyewitness account of the last major Holocaust trial to galvanize world attention and a vital meditation on the law’s effort to bring legal closure to the most horrific chapter in modern history.

Book Fact Friday – Incarceration Rates

From chapter 2 of Caught:

The race to incarcerate began in the 1970s. It persisted over the next four decades despite significant fluctuations in the country’s economic health and crime rates. Since then, there have been several points where different groups of people have suggested reforms because it was becoming too expensive to incarcerate as the same level, including an advisory board appointed by Ronald Reagan and fiscally conservative Republicans who had previously been penal hard-liners. Still, the rate of incarceration has not decreased, and the current model is not economically sustainable.

Caught: The Prison State and the Lockdown of American Politics
Marie Gottschalk
Introduction

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The huge prison buildup of the past four decades has few defenders today, yet reforms to reduce the number of people in U.S. jails and prisons have been remarkably modest. Meanwhile, a carceral state has sprouted in the shadows of mass imprisonment, extending its reach far beyond the prison gate. It includes not only the country’s vast archipelago of jails and prisons but also the growing range of penal punishments and controls that lie in the never-never land between prison and full citizenship, from probation and parole to immigrant detention, felon disenfranchisement, and extensive lifetime restrictions on sex offenders. As it sunders families and communities and reworks conceptions of democracy, rights, and citizenship, this ever-widening carceral state poses a formidable political and social challenge.

In this book, Marie Gottschalk examines why the carceral state, with its growing number of outcasts, remains so tenacious in the United States. She analyzes the shortcomings of the two dominant penal reform strategies—one focused on addressing racial disparities, the other on seeking bipartisan, race-neutral solutions centered on reentry, justice reinvestment, and reducing recidivism.

In this bracing appraisal of the politics of penal reform, Gottschalk exposes the broader pathologies in American politics that are preventing the country from solving its most pressing problems, including the stranglehold that neoliberalism exerts on public policy. She concludes by sketching out a promising alternative path to begin dismantling the carceral state.

#NewBooks from Princeton University Press

Books released spanning the weeks of May 26th and June 1st, 2015.

The past two weeks have been full of exciting new releases for Princeton University Press. Included is Stephen Macedo’s Just Married: Same-Sex Couples, Monogamy, and the Future of Marriage, which  takes an in-depth look at the convention of marriage in the modern age. Einstein fans will rejoice as a 100th anniversary edition of Albert Einstein’s Relativity: The Special and the General Theory is released. This new edition includes special features such as an authoritative English translation of the text, covers from selected early editions, and many more exciting extras. As history shows, the library is something that will never go out of style.  Alice Crawford’s The Meaning of the Library: A Cultural History is full of illustrations and rich commentary, highlighting the significance of the library throughout history as well as evaluating its importance in the 21st century.

New in Hardcover

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New in Paperback

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An interview with Nancy Woloch, author of A Class by Herself

Nancy Woloch’s new book, A Class by Herself: Protective Laws for Women Workers 1890s-1990s, looks at the historical influence of protective legislation for American women workers, which served as both a step toward modern labor standards and as a barrier to equal rights. Recently, Nancy took the time to answer some questions about the book, her reasons for writing it, and the modern day legacies of this legislation, from pregnancy law, to the grassroots movement to raise the minimum wage.

Woloch jacketWhy did you write this book?

NW: Conflict over protective laws for women workers pervades twentieth-century US women’s history. These laws were everywhere. Since the early 1900s, almost every state enacted some sort of women-only protective laws—maximum-hour laws, minimum wage laws, night work laws, factory safety laws. Wherever one turns, the laws spurred debate, in the courts and in the women’s movement. Long drawn to the history of these laws and to the arguments that they generated, I saw the opportunity to carve out a new narrative: to track the rise and fall of protective laws from their roots in progressive reform to their collapse in the wake of Title VII of the Civil Rights Act of 1964, and beyond. Here was a chance to fuse women’s history and legal history, to explore social feminism, to reconstruct a “constitutional conversation,” and to ferret around all the topics that protective laws touch — from transatlantic connection to social science surveys to the rise of equal rights. Above all, the subject is contentious. Essentially, activist women disrupted legal history twice, first to establish single-sex protective laws and then to overturn them. This was irresistible.

What is your book’s most important contribution?

NW: My book shows the double imprint that protective laws for women workers left on US history. The laws set precedents that led to the Fair Labor Standards Act of 1938 and to modern labor law, a momentous achievement; they also sustained a tradition of gendered law that abridged citizenship and impeded equality until late in the century.

Which groups of women activists first supported women-only protective laws?

NW: I focus on members of the National Consumers’ League, a pressure group formed in 1898 and led as of 1899 by reformer Florence Kelley. One of the most vibrant and successful reform organizations of the Progressive Era, the NCL enabled the campaign for protective laws to move forward. I also focus on the federal Women’s Bureau, started in 1920, which inherited the mission of the NCL: to preserve and promote protective laws. Other women’s associations, too, were involved; so were women labor leaders. But the NCL and the Women’s Bureau were most crucial. Women who promoted women-only protective laws endorsed a dual rationale: the laws would redress disadvantages that women faced in the labor force and provide “industrial equality”; they would also serve as an “entering wedge” to labor standard for all workers. The dual rationale persisted, with variations, for decades.

 How did you come up with the title?

NW: “A Class by Herself” is a phrase used by Justice David J. Brewer in Muller v. Oregon, the landmark Supreme Court decision of 1908 that upheld a state ten-hour law for women workers in factories and laundries. Woman, Justice Brewer stated, “is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained.” Two issues intersect in the Muller case: Can the state impose labor standards? Is classification by sex constitutional? The fusion of issues shapes my narrative.

The Muller case remains fascinating. I am stunned with the exceptional leverage that Florence Kelley grasped when she intervened in the final appeal of the case. I am struck with the link that Muller’s lawyers posited between employers’ interests and equal rights; with the fragile relationship between the famous Brandeis brief and the Brewer opinion; and with the way that Justice Brewer challenged Brandeis for dominance. I still ask myself: Who took advantage of whom? Looking back on Muller, I find an intriguing contrast between that case and the Supreme Court case that terminally rejected the Muller principle, UAW v. Johnson Controls (1991). This is when single-sex protective laws definitively expired. Johnson Controls also offers a counter-image of the 1908 case.

Did classification by sex ever help women workers?

NW: Yes, of course. Women-only state protective laws might provide benefits to women workers. In many instances, they provided shorter hours, higher wages, or better working conditions, just as reformers envisioned. But women-only laws always had built-in liabilities. Laws based on “difference” perpetuate difference. They entail hierarchy, stratification, and unequal power. They can quash opportunity, advancement, and aspiration. Once embedded in law, classification in sex might be adapted to any goal conjured up by lawmakers, or, as a critic in the 1920s pointed out, used to impose whatever restrictions “appeal to the caprice or prejudice of our legislators.”

What sort of challenges did you face as an author?

NW: Protective laws were tough customers. They fought back; they resisted generalization; they defied narrative. Part of the challenge was that I deal with a great mass of legislation –several hundred state laws — and each type of law followed its own trajectory. I also cover the laws and their ramifications over many decades. To estimate the impact of protective laws on women workers at any given time was a hazardous undertaking; one could not easily measure the negative effects, or what one critic called the “debit side.” Changing circumstances compound the problem; the effects of the laws were always in flux. Not least, protective laws generate controversy among historians; to tackle this subject is to stroll through a minefield. A special challenge: to cope with the end of protective laws in the 1960s and 1970s.

What was the biggest surprise you encountered in writing this book?

NW: The role of “surprise” itself was a surprise. Progressive reformers who promoted women-only labor laws in the early 1900s could not see around corners, anticipate shifts in the economy, or envision changes in the female work force. Nor could their successors or their opponents. Much of my narrative is a story of close calls and near misses, of false hopes and unexpected consequences, of accident and unpredictability. The theme of the unforeseen peaks with the addition of “sex” to Title VII of the Civil Rights bill of 1964; the impact of the amended Title VII on women-only protective laws was yet more of a surprise. I was surprised myself, as narrator, by the complexity of the downfall of protective laws. I was also surprised to discover the key role that “overtime” played in my story and the gradual mutation in its meaning over the decades.

Does your subject have present-day legacies?

NW: Definitely. In a sense, single-sex protective laws sank totally out of sight when they capsized in the 1970s. But in another sense, many facets of the history of protective laws reverberate; the echoes pervade current events. Labor standards are now a global issue, as illustrated in Bangladesh in 2012 and 2013. The fire in a garment factory on the outskirts of Dhaka that killed 117 workers, so reminiscent of the 1911 Triangle fire, and the yet more lethal collapse of an 8-story building, with garment production on its upper floors, underline the need for safety regulation everywhere. Closer to home, the drive to improve labor standards continues. Most recently, we have seen a grassroots movement to raise the minimum wage and efforts to revise federal law on the threshold for overtime. Reconciling work and parenthood impels discussion. Pregnancy law remains a challenge; enforcement of the Pregnancy Discrimination Act of 1978 has spurred more litigation than anyone expected. A recent case is Young v. United Parcel Service (2015). Beyond that, demands for compensated parental leave proliferate. President Obama’s proposal to fund parental leave, though unlikely to move forward right now, at least keeps the issue on the table. Finally, equal employment opportunity cases remain a challenge, from the Lily Ledbetter case of 2007 to the dismissed Wal-Mart case of 2011. Title VII, which catalyzed the end of single-sex protective law, turns out to be a work in progress.

Why Government Fails So Often: Or, the Skeptics Are Winning

7-17 SchuckAccording to The New York Times‘s David Leonhardt, the United States federal government gets an honorable mention when it comes to reform, innovation, and protection – but it’s not quite enough. In a recent op-ed for “The Upshot,” the paper’s politics and policy blog, Leonhardt pays due diligence to the large-scale achievements of the United States: dismantling totalitarian governments, putting men on the moon, and the invention of the Internet among them. And yet, despite our big picture success stories, we continue to stumble in the day-to-day.

Leonhardt references Yale Law professor and Princeton University Press author Peter Schuck’s latest book, Why Government Fails So Often: And How It Can Do Better in evaluating the current role of the federal government and the extent to which its activity is productive and beneficial, particularly when it comes to the siphoning of federal funds.


“When the federal government is good, it’s very, very good. When it’s bad (or at least deeply inefficient), it’s the norm.”


Soon, however, we might start to see some returns on our investments. The growing popularity of programs that are funded based on their initial success suggests a growing demand for tangible results, to see where our money is going and to ensure that we’re not wasting it.  These programs “span child care, job training and juvenile recidivism,” and are sometimes known as “pay for success,” wherein controlled trials are set up to determine the effect of such projects. And really, that’s the only way to know if something works. Professor Schuck is right to re-evaluate the cost-effectiveness of these initiatives, and with any luck, the government will start to fail just a little less.

___________________________________________________________________________________________________________________________________________________________________________

Peter H. Schuck is the author of:

7-17 Government Why Government Fails So Often: And How It Can Do Better by Peter H. Schuck
Hardcover | 2014 | $27.95 / £19.95 | ISBN: 9780691161624
488 pp. | 6 x 9 | eBook | ISBN: 9781400850044 | Reviews  Table of Contents   Chapter 1[PDF]

Quick Questions for Karen Alter

K_AlterKaren Alter is a Professor of Political Science and Law at Northwestern University, and continues her research in international courts as co-director of the institutionalization research cluster at the iCourts Center of Excellence, Copenhagen University Faculty of Law, and through ongoing collaborative research on international courts in Latin America and Africa. Her work focuses largely on “the interaction between international organizations and domestic policies” and “how different domains of domestic and international politics are transformed through the creation of international courts.”

She is the author of The European Court’s Political Power, Establishing the Supremacy of European Law, and the co-editor of the Oxford Handbook on International Adjudication as well as the co-author of International Legal Transplants: the Law and Politics of the Andean Tribunal of Justice. Her most recent book is The New Terrain of International Law: Courts, Politics, Rights which Robert O. Keohane hails as “the most sophisticated account of how ‘new style’ international courts alter politics by reducing the monopoly power of governments to determine what the law requires.” He also says, “If you can read only one book on how international courts affect the politics of international law, this is the one to read.” High praise indeed!

Now, on to the questions!

PUP: What do you think is the book’s most important contribution?

Karen Alter: The most straightforward contribution of The New Terrain of International Law: Courts, Politics, Rights is to make the alphabet soup of international courts more intelligible. There are so many questions about international courts we could not really ask because every international court was seen as sui generes. If my book helps scholars pose important questions based on the larger landscape of international courts, they are more likely to study international courts and investigate important questions. Then they can write about how Alter got x, y and z completely wrong.

The larger contribution is to create more realistic expectations for international courts.  We all know that the power of judges is limited. “International judges have the power issue binding rulings in the cases that are adjudicated.” (p.32) That is it! Elaborating further, I explain that judges name violations of the law, and perhaps specify remedies.  The real question is: How and when does the power to speak the law become politically meaningful?


The main contribution then is to generate an adaptable framework.


My more realistic approach to international law helps us get beyond utopian expectations and straw men. I understand that given what is going on in Ukraine, Syria, and in of US foreign policy, it is hard not to conclude that international law is irrelevant. But we don’t look at the many unresolved murders, the frequency of speeding, and use of illegal drugs and conclude that the American legal system must be irrelevant. Salient failures do not mean that legal systems never succeed or that law is irrelevant.

What is my non-utopian perspective? My answer is in the book’s preface: “If it seems like I find much success in international legal institutions, it is probably because my expectations are so low. International law is primarily words on paper imbued with legal authority. In the Bible, David always wins. In the real world, the odds remain in Goliath’s favor. But increasingly international law–words on paper imbued with legal authority–provides a legal and political resource that makes a difference.  The ability of international courts to speak law to power and thereby influence governments to alter their behavior is in my mind somewhat akin to David’s miracle victory over Goliath.”

The main contribution then is to generate an adaptable framework–­ the altered politics framework–to investigate when international law and international courts are relevant and influential. The book applies this framework across a range of institutions and cases, providing many examples of international judges throwing stones yet nonetheless influencing Goliaths to revisit decisions, change tax policies, compensate plaintiffs, revise constitutions, and create new institutional checks and balances.

Describe your writing process. How long did it take you to finish your book? Where do you write?
My husband says that I have been working on this book for 14 years. His quip is misleading, but also somewhat true.


My husband says that I have been working on this book for 14 years…misleading, but also somewhat true.


My writing process is to have many projects ongoing and at different stages. When I get really frustrated fumbling with new ideas and projects in the very early stages, I can spend a day putting the finishing touches on something that actually reads well.

For this project, my approach was to write articles exploring pieces of the puzzle. Some articles pushed an idea to its limit, to see, for example, how far I could sustain the notion that international courts are trustees and independent of powerful governments. Other articles looked in historical and empirical depth at a single institution, going into far more detail than I do in the book. You can see this approach on my webpage where I divide my research agenda into the study of comparative international courts, examining the Andean Tribunal of Justice as a supranational legal transplant, investigating the European Court’s Political Power, researching Africa’s international courts, and studying international regime complexity.

I also seek help by co-authoring. Larry Helfer was my partner in figuring out where the Andean Tribunal is influential, and why it remains irrelevant for many legal issues that should, in theory, fall under its legal purview. Sophie Meunier and I brought scholars together to collectively investigate how it matters that international institutions have overlapping membership and jurisdiction.

The many articles on comparative international courts read at times like whirling dervishes. The articles threw so many ideas and acronyms at the reader, they really asked too much of the reader. Writing the book was then a relief.  I had the space to work out the pieces at play, to develop and layer on empirics and ideas.

For this book I also had two book workshops—one in the US and another in Europe. These workshops, and Princeton’s peer review, really helped me to hone the book.

So yes, it took 14 years of stumbling around to write this book. But they were also very productive years.

What was the biggest challenge involved with bringing this book to life?
This was the most difficult and complex project I have ever done. I often give the analogy of Greg Louganis, an amazing American Olympic diver who won medals at two Olympics, on both the springboard and platform. In high school I was an extremely middling diver. The experience taught me that there are hundreds of skills and nuances one must master. Yet Greg Louganis makes diving look easy. He lands a dive with almost no splash.

Writing like Greg Louganis dives is my goal, and it takes a huge amount of practice and experimentation.

If I did my job well, my readers will not even realize how many ideas, terms and presentational devices I invented to simplify a bewildering complexity.

I invented the categories of ‘old style’ and ‘new style’ courts to explain why today’s international courts are so different than their predecessors. I created tables and organizing heuristics to convey the idea of proliferation, replication, similarity and divergence with relatively few details. I worked with categories lawyers use, differentiating each of the four judicial roles in the simplest possible way.

I then found 18 case studies to investigate each role in greater depth. The case studies involve different issues, different courts and different countries.

Finally I had to make the many pieces fit together in a way that the reader could follower.


I knew I was succeeding when the noise went away, and when my terminology became infectious.


Along the way, there was much distracting noise. I had to simplify without setting off lawyers’ alarms. I had to create concepts, categories, images and terms that captured the many variables political scientists care about. It took much iteration to rebuff early rejections of the notion that one can meaningfully differentiate constitutional review, dispute settlement, administrative review and enforcement roles. I was pushed into giving my name to my central argument- international courts altering politics.  This name came because my helpful critics rejected everything else I suggested!

24 courts + 4 judicial roles + 18 case studies across three vastly different issue areas: economic disputes, human rights and mass atrocities.

I knew I was succeeding when the noise went away, and when my terminology became infectious, shaping the conversation to focus on the important issues at stake.

What was the most influential book you’ve read?
I don’t know if this is the most influential book I’ve read, but I was inspired by Morton Horowitz’s book The Transformation of American Law (1870-1960). I read his book in graduate school, and it wowed me. I can still remember the core of his argument, which is remarkable considering how bad my memory is.

This feels really grandiose to say, but The Transformation of American Law inspired me to write a book that I hope will stand the test of time, inspire others, and be remembered.  Whether I achieve these objective is for others to decide. I sometimes wonder whether contemporary political science is conducive to memorable books. But the question I’m answering is what influenced me, and how I was influenced.

A funny thing about Horowitz’s book is that some of my colleagues at Northwestern Law School think of it as a Marxist book. It never occurred to me to see Horowitz’s book as Marxist. The Transformation of American Law fit into a tradition of political economy. It is much like two other books I still remember: Alexander Gerschenkron’s  Economic Backwardness in Comparative Perspective and Theda Skocpol’s States and Social Revolutions. These books, in my mind, use similar approaches to studying history and institutional development.  Perhaps this list, however, makes me a Marxist. Or, perhaps anyone who studies power in history, and political economy, is Marxist.  Or perhaps constructivism is the new Marxism.

Do you have advice for other authors?
Ask important questions.

Dream big.

Get in over your head and find your way out.


Don’t spend too much time alone in your head. Go out and talk to people!


Give yourself time to let ideas ripen.

But don’t spend too much time alone in your head. Go out and talk to people!

‘Data’ often is not what it seems.  Test your ideas and inferences by presenting your work, and by learning how the stakeholders understand their world.

PUP: What is your next project?
I have a lot of discrete projects that will keep me busy for the next five to seven years. This suits me fine because I have a daughter in high school, and a son in middle school.  I can’t undertake a huge consuming project until they are through high school. In the short term, expect more articles, symposia, and a book or two on international courts.

But I am starting to read for what will be my next big project.  I want to study capitalism and the rule of law in China.

I see China as trying to develop a rule of law absent human rights and constitutional checks on political authority. Is this even possible? If China can pull it off, I expect that authoritarian leaders around the world will emulate China’s approach to the rule of law. China’s rule of law model will then rival with the Euro-American model.

Maybe my interest in this topic goes back to Morton Horowitz.  Horowitz argued that the task of building the railroads in America fundamentally shaped the development of American law.  I want to understand how China’s embrace of capitalism in combination with the Communist Party’s disdain for constitutional democracy is shaping China’s development of the rule of law.

This project follows my own advice to ‘get in over your head and find your way out.’  I don’t speak Chinese, and I don’t yet know much about China. But I have started reading about capitalism and the rule of law, and about China. In five years time, I can start traveling to China to meet with law school deans, law faculty, government officials, judges and law firms. I can also begin to co-author with China specialists.

Alongside this new interest, my investment in researching and writing about Africa’s international courts is long term. I really enjoy working with Larry Helfer.  If I have my way, there will always be a project we are working on together.

But also, in both China and Africa I can study the rule of law as it develops from dysfunction to whatever it becomes. Triangulating the contrast between a developing rule of law and the established American and European rule of law systems keeps me thinking and learning.  I want to always be challenged to think in new ways.

________________________________________________________________________________________________________________________________________________________

Karen is the author of:

The New Terrain of International Law: Courts, Politics, Rights
Karen J. AlterHardcover | 2014 | $24.95 / £16.95 | ISBN: 9780691143774
296 pp. | 4 1/2 x 7 1/2 | 1 table.
eBook | ISBN: 9781400850051ReviewsTable of ContentsPreface[PDF]Chapter 1[PDF]Karen J. Alter’s Home Page