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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 j10442  j10494
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New in Paperback

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 j9961  j10008
 j9899  j8826
 j9573  j9130
 j7859  j9619
 j9740  j8737
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 j9831  j9876
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 j10030  j9875
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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

“Climbing Mount Laurel” Wins 2013 Paul Davidoff Award

Douglas S. Massey, Len Albright, Rebecca Casciano, Elizabeth Derickson & David N. Kinsey – Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb
Winner of the 2013 Paul Davidoff Award, Association of Collegiate Schools of Planning

The Paul Davidoff Award was established three decades ago by ACSP and is one of the most prestigious honors in the academic planning field. It recognizes an outstanding book publication promoting participatory planning and positive social change, opposing poverty and racism as factors in society, and seeking ways to reduce disparities between rich and poor; white and black; men and women. The award is granted biennially to the publication that most reflects Davidoff’s commitments and values.”

According to the committee chair, the entire selection committee was unanimous in its praise for Climbing Mount Laurel, and wrote that the “…work outshined a large and excellent pool of nominees.”

The Award will be formally announced at the ACSP Administrators’ Conference on November 15, 2013, and it will be formally presented at the 2014 conference during the Awards Luncheon.

For more information, click here.

Climbing Mount LaurelUnder the New Jersey State Constitution as interpreted by the State Supreme Court in 1975 and 1983, municipalities are required to use their zoning authority to create realistic opportunities for a fair share of affordable housing for low- and moderate-income households. Mount Laurel was the town at the center of the court decisions. As a result, Mount Laurel has become synonymous with the debate over affordable housing policy designed to create economically integrated communities. What was the impact of the Mount Laurel decision on those most affected by it? What does the case tell us about economic inequality?

Climbing Mount Laurel undertakes a systematic evaluation of the Ethel Lawrence Homes–a housing development produced as a result of the Mount Laurel decision. Douglas Massey and his colleagues assess the consequences for the surrounding neighborhoods and their inhabitants, the township of Mount Laurel, and the residents of the Ethel Lawrence Homes. Their analysis reveals what social scientists call neighborhood effects–the notion that neighborhoods can shape the life trajectories of their inhabitants. Climbing Mount Laurel proves that the building of affordable housing projects is an efficacious, cost-effective approach to integration and improving the lives of the poor, with reasonable cost and no drawbacks for the community at large.

Douglas S. Massey is the Henry G. Bryant Professor of Sociology and Public Affairs at Princeton University and director of its Office of Population Research. Len Albright is assistant professor of sociology at Northeastern University. Rebecca Casciano is the CEO of Rebecca Casciano, LLC. Elizabeth Derickson is a doctoral candidate in sociology at Princeton University. David N. Kinsey is lecturer of public and international affairs at Princeton’s Woodrow Wilson School and a partner in the planning consulting firm Kinsey & Hand.

Martin Ruhs to Speak on Panel at Kellogg University of Oxford

The Global Governance of International Migration: What Next?

The Global Governance of International Migration: What Next?

The regulation of international migration and migrant rights are among the most contested public policy issues around the world. In 2013-14 a series of high-level policy meetings (including the High-Level Dialogue on Migration and Development in New York, and the Global Forum on Migration and Development in Stockholm) will debate the global governance of migration, migrant rights and development. Do we need more global governance of international migration? If so, why and what should it aim to achieve? How, if at all, should international migration be integrated in the post-2015 development agenda? Come and join the debate!

Chair: Robin Cohen (Kellogg College and International Migration Institute, Oxford)

Panellists:

Timetable:
17.00-18.30 Panel Discussion in the lecture hall at the University of Oxford Museum of Natural History
18.30-19.30 Drinks Reception at Kellogg College
19.30-21.30 Dinner at Kellogg College

Both the panel discussion and drinks reception are FREE of charge. The dinner at Kellogg College is £15.00 per person.

To book please email: bookings@kellogg.ox.ac.uk
Please specify whether your booking pertains to the discussion, drinks and/or dinner. Include names of all guests and any dietary requirements.

Event details:

Fri, 29/11/2013 – 5:00pm – 9:30pm

The Festival of Ideas Brochure Is Available!

BFOI_web_logo_URL_900The 2013 Bristol Festival of Ideas aims to stimulate people’s minds and passions with an inspiring programme of discussion and debate throughout the year.

The authumn 2013 brochure can be found in PDF form here. A Princeton University Press author, Martin Ruhs, will be at one of the events to speak about his book, The Price of Rights: Regulating International Labor Migration at The New World Economy discussion on November 22nd (see page 7 of the brochure).

The following is a description of the discussion from the brochure:

The idea that the world’s centre of economic gravity is moving to the BRIC nations – Brazil, China, India and Russia – and other economies formerly known as ‘developing’ has become familiar. But what are the implications for the West of this historic shift in economic power, towards the countries with the majority of the world’s population and resources? Equally, what are the challenges and opportunities ahead for the fast-growing economies of Asia and Africa?

 Be sure to check out all of the great speakers and events, and to keep checking back at the Festival of Ideas website for updates and more information.

American prison system debate reaches new level

Hagan_Who_F12Orange Is the New Black, a comedy-drama series based on Piper Kerman’s memoir of the same name, recently hit the screens of Netflix users, receiving widespread critical acclaim. The show, revolving around Kernan’s sentence in a women’s federal prison, sheds light on social structure, rules, culture, and overall the experiences of the inmates in U.S. prisons.

Kernan, now a board member of the Women’s Prison Association, recently discussed her experience and suggestions for changing the American prison system on NPR’s Fresh Air. That same week, U.S. Attorney General Eric Holder stated that the U.S. has an “unnecessarily large prison population,” calling the system “both ineffective and unsustainable.”

While the consensus that change is necessary is spread across party lines, the debate among lawmakers over what to do and how to do it is heavy. One certainty is, however, that the conversation has reached a national level, and an understanding of the U.S. prison system is becoming increasingly necessary.

In Who Are the Criminals?, John Hagan argues that the recent history of American criminal justice can be divided into two eras—the age of Roosevelt (roughly 1933 to 1973) and the age of Reagan (1974 to 2008). A focus on rehabilitation, corporate regulation, and the social roots of crime in the earlier period was dramatically reversed in the later era. In the age of Reagan, the focus shifted to the harsh treatment of street crimes, especially drug offenses, which disproportionately affected minorities and the poor and resulted in wholesale imprisonment. At the same time, a massive deregulation of business provided new opportunities, incentives, and even rationalizations for white-collar crime—and helped cause the 2008 financial crisis and subsequent recession. The time for moving beyond Reagan-era crime policies is long overdue, Hagan argues. The understanding of crime must be reshaped and we must reconsider the relative harms and punishments of street and corporate crimes. In a new afterword, Hagan assesses Obama’s policies regarding the punishment of white-collar and street crimes and debates whether there is any evidence of a significant change in the way our country punishes them.

Sykes_SocietyThe Society of Captives, first published in 1958, is a classic of modern criminology and one of the most important books ever written about prison. Gresham Sykes wrote the book at the height of the Cold War, motivated by the world’s experience of fascism and communism to study the closest thing to a totalitarian system in American life: a maximum security prison. His analysis calls into question the extent to which prisons can succeed in their attempts to control every facet of life—or whether the strong bonds between prisoners make it impossible to run a prison without finding ways of “accommodating” the prisoners. Re-released fifty years later, The Society of Captives will continue to serve as an indispensable text for coming to terms with the nature of modern power.

For further reading:

When Brute Force Fails: How to Have Less Crime and Less Punishment by Mark A. R. Kleiman
Games Prisoners Play: The Tragicomic Worlds of Polish Prison
by Marek M. Kaminski
Prison Religion: Faith-Based Reform and the Constitution by Winnifred Fallers Sullivan