What do you think is the book's most important contribution?
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?
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 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.
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.
Get in over your head and find your way out.
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.
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.