ArticlePDF Available

Law, Lawyers, and Empire: From the Foreign Policy Establishment to Technical Legal Hegemony

Authors:

Abstract

Drawing on the sociological tools of Pierre Bourdieu, this chapter traces the role of law in U.S. foreign policy over the course of the twentieth century, showing the rise of the so-called Foreign Policy Establishment led by corporate lawyers representing themselves and their clients - while also working to construct and embody the state. It shows the challenges to that elite group and the response in the 1970s and 1980s. The result, somewhat paradoxically, is that the specific influence of the elite has declined but the legal approaches that they offered have come to be more entrenched and autonomous. The changes help to account for the "globalization of law" that the chapter traces in human rights, international commercial arbitration, and trade.
1
Law, Lawyers, and Empire: From the Foreign Policy Establishment
To Technical Legal Hegemony
(forthcoming chapter in Cambridge History of American Law)
by Yves Dezalay, CNRS, Paris and Bryant G. Garth, Dean, Southwestern Law School
Abstract:
Drawing on the sociological tools of Pierre Bourdieu, this chapter traces the role of law in
U.S. foreign policy over the course of the twentieth century, showing the rise of the so-called
Foreign Policy Establishment led by corporate lawyers representing themselves and their clients
-- while also working to construct and embody the state. It shows the challenges to that elite
group and the response in the 1970s and 1980s. The result, somewhat paradoxically, is that the
specific influence of the elite has declined but the legal approaches that they offered have come
to be more entrenched and autonomous. The changes help to account for the “globalization of
law” that the chapter traces in human rights, international commercial arbitration, and trade.
At the end of the twentieth century, scholars from many disciplines noted the rise of
norms or even legalization in U.S. foreign policy and in the practice of international relations
more generally. Legal debates about the rules for governing foreign relations and questions of
how to enforce desirable laws such as those outlawing genocide or ethnic cleansing became
central to international diplomacy. Even the debates for and against globalization came to
feature lawyers, and trade debates focused on such issues as the legal standing of environmental
groups in proceedings before the World Trade Organization. For many scholars, these
developments marked an important and desirable shift from the realist focus on struggles for
power and influence toward greater cooperation and rule-oriented behavior. More than at any
time in the past, ideas of how to build and improve laws and legal enforcement dominated the
agenda of foreign policy.
This chapter uses an historical and sociological approach to examine the process of
legalization (and its celebration). By tracing current institutional developments to their geneses a
2
century ago, the chapter argues that the current situation in international relations reflects a
relative success in Americanization abroad that also reinforces the power of lawyers and the
clients they serve in the United States. Law and lawyers have been central to what can be
characterized as U.S. imperial strategies throughout the twentieth century, but the role of law
and lawyers in these strategies has changed over the course of that time. In particular, we
examine the process by which the power of the so-called “Foreign Policy Establishment” (FPE)
was entrenched in the workings of the law. The power became more legalized and more
autonomous, which meant also that the specific power of the FPE declined.
Since our sociological approach is still somewhat unorthodox, we highlight some puzzles
and paradoxes that it may help to explain about internationalization and law. Our analysis
explains the combination of legal idealism and instrumental pragmatism that we see in U.S.
foreign policy (partly reflected in the ongoing debate between so-called realists and idealists) and
the way in which champions on each side often appear to change sides or receive help from
unlikely partners (such as corporate speculators turned philanthropists -- exemplified recently by
George Soros). It explains the coincidence of the recent acceleration of the process of
legalization at the same time as the relative demise of the legal elite that once enjoyed a quasi-
monopoly over U.S. international politics. There are also some odd combinations of continuities
and discontinuities that this analysis highlights. The field of human rights, as one prominent
example, moved from a deep embeddedness in Cold War politics to reinvention as a weapon by
opponents critical of the Cold War, and then to institutionalization as a new orthodoxy. The
legalization of trade disputes has been promoted at the same time by multinational companies
such as Pfizer and by leading anti-globalists such as Lori Wallach (of Public Citizen). Even the
War on Terrorism promoted by the Neo-Conservatives behind George Bush can be understood
3
better not as the rejection of “multilateralism” and law but rather as an episode in the continuing
series of battles that produces and globalizes U.S. law.
Our analysis, more generally, explains why and how law could maintain its central
position as the battlefield for political and economic power in foreign relations. We recognize
that the content of the laws that emerge from these battles is important, as are the contests –
including those between “realists” and “idealists” -- to produce laws favoring one or another
political position. We further note that the fact that the law has become more autonomous and
institutionalized in recent decades also has major implications in the ability of individuals to
enforce rights related to foreign policy domains. But our focus in this essay is not on the content
of laws or their enforceability. It is on the process through which a particular group of lawyers
succeeded – and succeeds -- in channeling successive waves of both realism and idealism,
progressive and conservative politics, into a foreign policy apparatus that empowers and allows
them – despite various challenges -- to manage the process in the overall interest of themselves
and their large corporate clients.
A basic hypothesis of this chapter is that in order to understand the international usages
of American law, we must focus on how it is produced, by whom, and in what kind of social
context. A social history of American law, even one that emphasizes foreign policy, requires an
examination of the mode of production of American law. This task requires an exploration of the
identity of the legal elite, the principle means by which it influences the politics of law – namely,
control of the producers and domination of the mode of production of law --, and the resources
and strategies it employs, found through individual and collective biographies. In this way we
can understand both the particular U.S. mode of production of law -- and law firms -- and how
4
that mode has been transformed over the course of the twentieth century. Changes, as we shall
see, take place both through external challenges to the legal elite embodied in the FPE and from
challenges from within the legal field involving new entrants, increased competition,
specialization, and a greater division of labor. The internal changes increase the pressure on the
generalists who once could pretend to do a bit of everything – acting as the “wise men” for the
state or business, as learned lawyers, and as idealistic visionaries. The internal changes take
place and are accelerated through the process by which battles in the field of state power are
fought on the terrain and with the weapons of law.
The starting point for this chapter is a narrative of the rise, relative decline, and
subsequent rise, challenge, reconversion, and institutionalization of the so-called Foreign Policy
Establishment. The broad outline of the story can be depicted as a protracted and hardly
inevitable Weberian movement from governance in the sense of shaping and overseeing the
government agenda by the charisma of elite lawyers to the routine of bureaucratic
institutions and a combination of hard and soft law. The broad outline, however, masks the
details that determine the particulars of todays contingent rules of the game for governance. In
particular, we seek in this chapter to show how in the United States the charisma was situated
in a recognizable group of individuals involved in contested struggles for power and how a
distinctive routine emerged as a contested set of rules and approaches for the governance of
foreign policy. In both cases, in addition, we see the role of law and lawyers in the United States
as part of a multi-polar field of “quasi” state power – a field of power without a “core” but
structured around three main pillars – Ivy League campuses, Wall Street, and Washington, D.C.
One result of the story examined here, as mentioned before, was that U.S. law and U.S.-
trained lawyers became central to globalization and to Americas relatively successful effort in
5
the 1980s and 1990s to define and shape globalization to its ends ends defined by the neo-
liberal economists who became preeminent in the 1970s. The World Trade Organizations legal
regime, as one example, sought to lock-in and legalize basic free trade principles and approaches
modeled on U.S. trade law. This mostly liberal trade regime complemented the somewhat earlier
rise of a lex mercatoria and a system of international commercial arbitration that moved U.S.
(and English) contract law and U.S.-style litigation to the center of transnational business
relations. In addition to the developments in business, the international human rights movement
over the last quarter of the century succeeded in elevating the place of law and human rights
and U.S.-based Non-Governmental Organizations (NGOs) such as New York-based Human
Rights Watch and foundations such as the Ford Foundation in international relations. Finally,
combining human rights and business law into a recipe for legitimate governance, rule of law
programs became central to the foreign assistance of not only the United States, but also the
World Bank, the International Monetary Fund, and many European countries. These and parallel
developments worked to promote globalization through states and economies built to
accommodate U.S. business and the knowledge industry constructed to serve that business
including especially legal service providers and the investment banking and business consulting
industries modeled after corporate law firms.
This legalization and globalization faces challenges within the United States and abroad.
The Bush-Cheney administration, in particular, has questioned the WTO, especially by asserting
protection for the steel industry (even though ultimately capitulating); refused to adhere to
treaties establishing an International Criminal Court, banning anti-ballistic missile systems, and
seeking to regulate global warming, and used the war against terrorism to lower the profile and
importance of human rights and activities directed toward the rule of law. The continuing vitality
6
of the human rights regime is at the same time quite evident, however, especially as seen in the
response to the evidence of U.S. torture of detainees taken as part of the war against terror.
Indeed, somewhat paradoxically, the Bush-Cheney administration ended up grounding the
second Gulf War largely on the theory that Saddam Husseins human rights violations justified
humanitarian intervention, and considerable resources are going into the documentation of Iraq
war crimes. While quite resistant to any legalization that threatens to constrain U.S. power, even
the Bush-Cheney administration takes advantage of the persistent legitimacy of human rights
considerations when it serves their purposes.
In order to understand the position of law currently in international relations, this chapter
will explore two closely related but separable stories. The first will be a story of the people who
came to make up the so-called Foreign Policy Establishment (FPE). They built their powerful
positions in and around the U.S. state through legal legitimacy, but they relied at least as much
on their capital of personal relationships, business connections, and social class. Legal authority
was a key basis of their power, but their investment in the law itself was relatively light. Their
role can be explored by looking at some of the central figures from the origins of the FPE late in
the nineteenth century to its apotheosis in the 1960s. The challenges to the FPE represented
especially by the Vietnam War and a series of economic crises will then be highlighted. The
second story will address the more subtle issue of the actual investment in law and legalization,
evident prior to World War I but only gaining substantial importance and a much greater
degree of institutionalization (or autonomization) well after the end of World War II.
From Servants of Big Business to Lawyer Statespersons: The Invention of the
Foreign Policy Establishment as a Means to Legitimate that Service, Make it More
Valuable, and Protect the Long Term Interests of Themselves and their Clients
7
The activities of the founders of the FPE can only be understood in relation to the rise of
the new industrial class in the late nineteenth century connected to the railroads, the banks, and
the emerging oil industry centered ultimately in New York City. The economic transformations
presented both opportunities and risks to lawyers. One risk came from the way the so-called
robber barons used legal hired guns instrumentally to defeat their competitors. Lawyers who
served them became identified with and somewhat tainted by the businesses and business tactics
they served. There was opposition within the more traditional, litigation-oriented, bar to these
alliances, which threatened the legitimacy of a profession beginning to organize and become
more self-conscious. The continuing mode of production of U.S. law can be traced to the
handling of this professional crisis of legitimacy.
The rising corporate bar in New York City adopted a variation on a traditional strategy of
building a relative autonomy from their clients in order to make their expertise more valuable
and their own roles more legitimate. They invested in regulatory law, including antitrust, and in
the state through politics in the Progressive era and beyond. This investment took place at the
local level, involving municipal justice and good government, but it was also found in the effort
to build a legitimate but active foreign policy coinciding with the interests of their clients in
expanding their markets and avoiding losing ground as other powers expanded their empires.
The success is evident from the fact that elite lawyers dominated the FPE and more generally by
the ability of the corporate lawyer as “lawyer-statesperson” to embody the elite of the legal
profession and to shape its norms and values.
The strategy of this group of lawyers serving business was a mix of professional and
technical investment. It was also a learned strategy. The corporate law firms led by the Cravath
firm (now Cravath, Swaine, and Moore) in New York City invested substantial resources in the
8
law schools and in the science then being developed through the case method pioneered at
Harvard. Those who excelled at the case method were invited to join the leading corporate law
firms. The elite law firms valued and gained value through their close ties to leading law schools
and by claiming the top graduates. Part of the state strategy for the law firms and their clients
involved the mobilization of social capital to help civilize the robber barons into philanthropic
patrons -- led by the Carnegie and Rockefeller foundations. In this way the aspiring legal elite
could use their clients to enhance the public arena, including foreign affairs. They could broker
the interests of business and the state from positions of close proximity to both.
This ambitious strategy, which produced a unique group of elite corporate lawyers central
to institutions of governance, required an initial accumulation of symbolic capital -- combining
social class, elite school ties, meritocratic criteria, political investment, law firm size, and
entrepreneurship. The professional firms were able to combine the social capital of the well bred
cosmopolitan elite with the ambition and talent of meritocratic newcomers promised partnership
if they could succeed as associates. Sullivan and Cromwell, still one of the most elite firms in the
world, provided a perfect example, with Sullivan bringing ties to an old family and Cromwell the
entrepreneurial drive of the outsider. The pattern was repeated often, for example with the
absorbing much later of Irish and Jewish litigators into the corporate law firms.
The Wall Street law firm – often termed the Cravath model – became the
institutionalization of this double agent strategy. Law firms served as buffers and crossroads
between academia, business, and the state. This double agency can be seen as an institutionalized
schizophrenia, according to which the lawyers would alternately seek to find ways for their
clients to avoid state regulation and find ways for the state to regulate their clients. The practical
result was that it allowed the lawyers to construct rules to protect and rationalize the power of
9
their clients, to build the need for their own professional services, and to gain some power in the
state and economy.
The professional firms structured to serve corporate clients increasingly sought to
cultivate the image of learned gentlemen of the law. Especially as they became older, they sought
to gain more respect and recognition. The elite Wall Street firms balanced their profits with a
certain amount of noblesse oblige. There was very little competition among the top firms, and
the relations with clients were organized in an almost familial mode. The group at the top was
relatively small and socially homogeneous, comprising an exclusive cadre of old boys groomed
and trained in elite institutions led by Harvard and Yale. Corporate law in this way became the
core of the Eastern establishment in the United States. Law in the United States became closely
linked and identified with the reproduction of an establishment built around the state and a
fraction of the corporate world closely linked to (and dependant on) state resources and
patronage.
The links between lawyers, business, the academy, and the state were openly recognized
and built into the system, and the system was cemented by other institutions such as the press
and the philanthropic foundations. Well-connected and ambitious undergraduates easily came to
the conclusion that, in the words of Kingman Brewster, a direct descendent from the Mayflower,
Harvard Law professor, and President of Yale, describing the 1940s, “on to law school, not to
become a lawyer but because it seemed like the best way to move forward without burning any
bridges.”1 Such a “non-decision” assumed that one available base, source of financial security, if
necessary, and network of like-minded friends, was the elite corporate law firm. When Cyrus
Vance, for example, left the Department of Defense in 1967, he went to Simpson, Thatcher
because he “had five children approaching college age, and having depleted his savings after six
10
and a half years in government service, ‘I simply had to get back and earn some money’.”2 And
the base in the corporate law firm facilitated service on various business and philanthropic
boards, including oversight of the elite universities and law schools.
The career of Elihu Root, who became Secretary of War under McKinley in 1899 in the
period of the Spanish American War, shows how this mode of production of law and lawyers
developed and how it led to investment in foreign affairs. Root at the time of his appointment
was already quite prominent as a corporate lawyer. His clients included the infamous Sugar
Trust, which he helped survive the threat embodied in antitrust legislation. He also made his
name by investing in good government generally through the Republican Party in New York,
including close ties to Theodore Roosevelt. As a generalist lawyer with cosmopolitan
connections and a reputation for good judgment, Root made sense as a trouble shooter for the
new and problematic colonial ventures. A key task was to deal with the continued resistance in
the Philippines to the U.S. occupation and colonization and in the U.S. to the idea of the U.S. as
a colonizing power. Root brought the same approach to foreign affairs that he did to New York
City serving the general interests of his clients and seeking to build legitimacy for the world in
which they operated.
Root had to work to overcome the traditional U.S. idea that colonialism was inconsistent
with U.S. legal and moral values. McKinley and Root enlisted Judge William Howard Taft to
help respond to the challenge. Taft, then the presiding judge of the Sixth Circuit Court of
Appeals and dean of the law school of the University of Cincinnati, accepted the position in
charge of the Philippines effort. The work to build a new government in the Philippines, he
stated, was a national obligation, indeed a sacred duty. He would create a government
adapted to the needs of the Filipinos, one that would help to develop them into a self-governing
11
people.3 In line with Roots ideas, Taft led the effort of the United States to transplant its values
and institutions in the Philippines.4 According to Taft, We hold the Philippines for the benefit
of the Filipinos.5
These lawyers sought to defend a U.S. brand of colonialism through this moral facade,
both as a way to make it more legitimate at home and abroad than the more traditional
Spanish colonialism that it replaced and to offer legal morality as a kind of civic religion to
substitute for the conservative Catholicism that was a key component of the Spanish model of
colonization. There were, of course, real economic interests and concerns underlying this U.S.
assertiveness abroad, but the business concerns were combined with idealism that these
corporate lawyers encouraged and expressed. Foreign involvement was an opportunity to
transplant the universal U.S. values which they represented.
Some sense of this role of law can be garnered from testimony of one of the dominant
civilizers in the Philippines. George Malcolm was a young law graduate of the University of
Michigan who went to the Philippines in order to see my country initiate a system of ever
increasing self-government for the Philippines ... [and] to take a stand in favor of resolute
adherence to Americas revolutionary anti-colonial policy.6 Through entrepreneurial initiative,
he helped to establish the University of Philippines College of Law in 1911, and he became the
first dean. His goal with the law school was the training of leaders for the country. The students
were not alone tutored in abstract law dogmas; they were inculcated with the principles of
democracy. One of the graduates in 1913, who established the reputation of the new school by
topping all candidates in the Bar examination,7 was Manual Roxas, who became the first
President of the Philippine Republic. The career of Roxas reflects the double strategy of the elite
12
U.S. lawyers. One was to ally with and even help to produce their counterparts in the
Philippines. The second was to support a moral and legal facade capable of aligning the colonial
venture with U.S. values – including the idea of U.S. exceptionalism from the despised world of
European colonialism.
The U.S. leaders used their Philippines experience -- and its very high value on resumes
at the time -- to build their arguments for comparable approaches in U.S. foreign policy more
generally. Expressing hostility to colonial empires, for example, Taft as President of the United
States sought to open markets for U.S. business as an aspect of dollar diplomacy designed to
supplant military strategies while facilitating U.S. prosperity -- through trade and investment
rather than new colonial conquests. Dollar diplomacy led the way to the policies of Woodrow
Wilson, who succeeded Taft as President. Those policies are often mistakenly characterized as
policies of idealism, when in fact they reflect the same mix of interest and ideals found in the
legal elite’s formula combining clients and civic service. The ideals were consistent with a
worldview in which the lawyers and their clients would prosper.
Henry Stimson is another of the most prominent members of the FPE, and he too
combined colonial service in the Philippines with corporate law and government service at home.
After Andover, Yale, and Harvard Law School, Stimson in 1890 took advantage of a family
friendship to secure a position working for Elihu Root. When Root became McKinleys
Secretary of War in 1899, he turned over the law practice to his two partners, one of whom was
Stimson. The law firm of Winthrop and Stimson thrived by representing the trusts and moving
toward specialization in national and increasingly in international business.8 Stimsons personal
ties and professional stature led him to be appointed Secretary of War by Taft in 1912.
When Stimson returned to the practice of law, he also resumed service on behalf of large
13
corporate interests. He later returned to the government as the Governor General of the
Philippines in 1927, a year later becoming Herbert Hoovers Secretary of State and still later
Secretary of War for Roosevelt and Truman (1940-45). Individuals close to Stimson, many of
whom worked with him during World War II, including Dean Acheson, William and McGeorge
Bundy, Cyrus Vance, and Elliot Richardson, were active well into the 1970s.
After World War I and the failure of the U.S. to join the League of Nations, a group of
these elite lawyers and others formed the Council on Foreign Relations (CFR) to keep alive the
case for active U.S. engagement with the international community. They worked closely with
counterparts in Europe representing comparable mixes of social, legal, and state capital. As
indicated by the early leadership of Elihu Root and John W. Davis, these activists were also
leading corporate lawyers. Davis himself was J.P. Morgans lawyer. He combined his
representation of the J.P. Morgan interests with a strong internationalist portfolio including the
CFR, which he headed for twelve years, and service as Ambassador to the Court of St. James.
John Foster Dulles, later Eisenhowers Secretary of State, fit the same mold. Dulles joined
Sullivan and Cromwell prior to World War I, played a role as a young man in negotiations at
Versailles, and went on to a career representing major corporations – including United Fruit --
and supporting an internationalist foreign policy. He wrote one of the articles in the first issue of
Foreign Affairs, the journal of the CFR. Paul Cravath another pillar of the corporate law firm
world also became a director and vice president of the CFR at the time it was established. In
the era of so-called isolationism, the Council on Foreign Relations continued to promote interest
in international relations: To oppose isolationism had been the bedrock of the Establishments
policy during its years in the wilderness....9
It took World War II, however, to bring the individuals associated with the CFR to the
14
pinnacle of power, and it took the Cold War to maintain and further build that position. Regional
divisions in the United States between American First nativism and pro-interdependence
globalism were put aside. As noted by the Silks, Above all, there was the Communist threat.
Resistance to the more humanitarian forms of foreign aid gave way before the ready argument
that this was designed to hold off the Russians. Indeed, in many quarters this was the only
argument that worked.10 John J. McCloy noted the importance of the CFR in the 1950s:
Whenever we needed a man,…we thumbed through the roll of Council members and put
through a call to New York.11
McCloy, as the emblematic figure of the FPE from the 1940s until the 1960s, merits
elaboration. John Kenneth Galbraith designated McCloy the chairman of the Establishment.
According to Kai Bird, McCloys biographer,
His story ... encompasses the rise of a new national elite, composed largely of corporate
lawyers and investment bankers, who became stewards of the American national-security
state. Beginning in the 1920s, these men formed an identifiable Establishment, a class of
individuals who shared the same social and political values and thought of themselves as
keepers of the public trust. Unlike the British Establishment, from which the term is
borrowed, the American Establishment was dedicated not to preserving the status quo,
but to persuading America to shoulder its imperial responsibilities.12
McCloy began his career at the Cravath firm just after World War I and eventually helped
establish another white shoe firm, Milbank Tweed, which was the vehicle for his legal
representation of the Rockefellers. His career included service as the High Commissioner to
occupied Germany after World War II, the President of the World Bank, the Chair of the Ford
Foundation, and Chair of the Council of Foreign Relations, to name a few of his positions. He
was also, in Birds words, legal counsel to all Seven Sister oil companies, a board director for a
dozen of Americas top corporations, and a private, unofficial advisor to most of the presidents in
15
the twentieth century.13
The apotheosis of the FPE came in the Kennedy administration. The social profile,
professional trajectories, and the political opinions of Kennedys action intellectuals from
Cambridge suggest their continuity with the FPE. Not all were corporate lawyers. Comparable
careers could be made by circulation among the various institutions dominated by the legal elite,
including the related career of investment banker, but the members of the FPE were all cut from
the same mold. The central figure of the Kennedy administration, for example, was McGeorge
Bundy, the principal organizer of Kennedys elite group and later advisor to the President for
foreign affairs. Bundy was a direct descendent from a traditional Eastern WASP family, a
graduate of Yale, and the son-in-law of Dean Acheson -- one of the famous wise men of the
foreign policy establishment. Bundys cosmopolitan career also included service as a very young
dean of the Harvard College of Arts and Sciences, the Council of Foreign Relations, National
Security Advisor, and finally the leadership of the Ford Foundation, which he directed from 1967
to 1979. Unlike his father, Harvey Bundy, and brother, William Bundy, he did not attend law
school, but he was close enough to law to be offered a clerkship by Felix Frankfurter. Bundy’s
generation and close circle of friends also included Cyrus Vance, then in his first government
service with the Department of Defense (and whose father figure was his close relative, John W.
Davis); Kingman Brewster, the President of Yale from 1964; Eliot Richardson, Secretary of
State and of Health Education and Welfare under Nixon, and John Lindsay, Mayor of New York
City.
The brief account of the names and influence of lawyers in the FPE attests to the
importance afforded to lawyers and legal training in U.S. governance, especially after World
War II. Yet most general historical accounts of foreign policy during the Cold War pay almost
16
no attention to law itself. The neglect is not an oversight. Neither the opening of markets and
protection of investments, nor the attention to development in the third world, nor the
mobilization of foreign policy against Communism drew very much on law. The academic
influences behind the policies were the realists represented by scholar/political activists such as
George Kennan, Hans Morgenthau, Reinhold Niebuhr, and Arthur Schlesinger, Jr., all of whom
built their position by attacking remnants of Wilsonian idealism -- characterized by Kennan as
a “legalistic-moralistic approach” to foreign policy. They scoffed at the idea that international
relations might be grounded in international law and legal institutions. Even as late as 1968, for
example, Dean Acheson scolded an audience at the American Society of International Law for
confusing what the law is with what they wanted it to be by invoking international human rights.
The rhetorical posture against Wilsonian idealism, however, exaggerated the differences between
these individuals and their predecessors in the FPE.
This relatively weak position of law over the entire period is not difficult to explain. Elite
lawyers, it is true, were quite important as the embodiment of the establishment. Indeed, they had
much in common with the law graduates who occupied similar positions in other countries.
Prominent examples include the law graduates who dominated the state in Brazil or Chile. As in
Latin America, in addition, legal elites also served as advisors to business, as business leaders
themselves, and as intellectuals, professors, and reformers in and outside of the government. To
be sure, the mode of production of law differed in key respects between Latin America and the
United States, but in both cases a key source of the power of the legal elite was a relative lack of
investment in pure law and legal institutions -- or, put another way, a diverse portfolio of capital
that could be drawn upon at different times. These lawyers were at the top of the legal profession
despite activities that relied relatively little on the formal law or legal institutions. And they were
17
at the top of the social and political structure because of a combination of activities and
connections that placed them above the mundane world of law. A relatively few people could
occupy and rotate among a large number of power bases.
The FPE in the same way was able to dominate a number of related bases, including the
elite campuses, exemplified by MacGeorge Bundys leading position at Harvard (despite only
having a B.A.) and Kingman Brewsters presidency of Yale; the philanthropic foundations,
including Ford and Rockefeller; the State Department; the media, especially the leading
newspapers exemplified by the New York Times; and representation of the major U.S.
corporations and financial institutions. All these invididuals were generally united on the goals
and tactics of the Cold War, which were of course quite consistent with their vision of the
interests of the clients of the elite law firms that provided the glue that linked the other
institutions. Bipartisanship in foreign policy safeguarded the power of the FPE and those they
represented.
It also was consistent with a foreign policy built around collaboration with elites in the
fight against Communism. The approach can be seen in the Cultural Cold War under the CIA
and in the many related programs supported by the Ford Foundation and others. From the
perspective of the Ford Foundation, for example, it almost did not matter what kind of
economics it supported as long as the programs made friends for the U.S. (e.g., Chile). Similarly,
in the Philippines the policy was to build friendly leaders largely from among the traditional
Philippine elite rather than truly to reform the state or state policies. The modernization
theory on the campuses of the elite schools fit this mission perfectly with a scholarly
rationalization for the search and support of modernizing elites. That was also the strategy at
home, where the FPE participated strongly in the reformist policies associated with a relatively
18
activist state governed with a large dose of noblesse oblige.
Lawyers were not, of course, the only important group holding the elite together.
Particularly after the depression, economics became another important academic home, but
mainstream economics was not inconsistent with the methods or approach of the lawyers. Within
the Kennedy administration, for example, Walt Rostows recipe for developmental assistance
entitled The Stages of Economic Growth: An Anti-Communist Manifesto fit the Cold War
strategy perfectly (and the politics of his lawyer-brother, Eugene Rostow, the Yale Law School
Dean before joining the government). One of Walt Rostows collaborators at MIT, Max
Millikan, also an economist, was a key leader of the CIA in the 1950s and beyond. The general
consensus survived largely because the Cold War masked these and other tensions and conflicts.
The legal establishment easily assimilated these challenges. Similarly, to the extent that the
attack on Wilsonian idealism by non-lawyers was an attack on law in the name of a new field of
international relations in the United States, it could also be absorbed and even used to bolster the
position of the FPE above the law -- and therefore relatively unrestrained in the tactics they could
promote as part of the Cold War.
The general assumption is that the power of the FPE has declined substantially in the
United States, and further that the lawyer-statespersons so important to that power are also on the
road to extinction. Lawyers and law professors are proliferating calls in one form or another for
more such lawyer-statespersons. The number and weight of these panegyrics suggests that there
is something to their analysis, even though it also serves tactically to promote individual claims
to embody the traditional virtues of the lawyer statesperson. More importantly, however, the
asserted decline is not inconsistent with the fact that the legal project connected to the lawyer
statespersons has in many respects triumphed.
19
Law and legal approaches are far more important in foreign policy than they were in the
past. This apparent paradox can be explained by examining the challenges to the lawyer
statespersons and the Foreign Policy Establishment that took place in the 1960s and beyond. The
effect of the challenges was to undermine the ability of lawyer statespersons to occupy multiple
positions while at the same time transforming and deepening institutional investment in the law –
and the legal role as broker of choice for the Ivy League, New York, and Washington, D.C.
Challenges and Responses: Legalization in a New Division of Labor of Domination
at Home and Abroad
The Vietnam War and the civil rights revolution of the 1960s were the obvious
manifestations of a profound challenge to the power of this legal establishment. By the end of the
1960s, the FPE was certainly on the defensive, leading to the rise of the new right, the
Presidencies of Richard Nixon and Ronald Reagan, and the two President Bushes. The
establishment Republicans such as John Lindsay and Elliot Richardson lost their place in the
Republican Party. More generally, seen in all the presidential administrations, the relatively
liberal and reformist minded or progressive establishment gave way to a much more
conservative social and economic orientation.
This change is often depicted as an ideological shift, an abandonment of the relatively
progressive political agenda of the 1960s and 1970s. The ideological story is appealing, since it
suggests that another ideological change in direction would return to an age of social
progressivism. The ideological story also distracts attention from the interests involved in the
transformation and those who served them. The more complex story can be traced by using the
FPE to focus on the field of political power. Challenges and continuities revealed through this
analysis help to explain the complex role of law in relation to corporate power and globalization.
20
The general sociological and historical approach here, based on Bourdieus reflexive
sociology, is to examine contending forms and amounts of capital doing battle within more or
less autonomous fields including especially the field of state power. The description of the
leaders of the FPE over the course of the twentieth century is one of the reproduction of elites
(with the addition of a relatively few meritocratic entrants, including for example McCloy) who
attended the same prep schools and colleges, worked at the same law firms, represented the same
clients, and knew each other and each others families very well. They built a distance from their
clients that in the United States allowed them to serve in the place of a European style state. In
the interests of winning the Cold War, preventing domestic turmoil, and protecting their own
position, they worked on behalf of a reformist state through the institutions they controlled
including the state itself, the philanthropic institutions, and the elite universities. They embodied
the realism of their clients’ interests and the noblesse oblige/ idealism that also served to define
them as lawyer-statespersons.
One key element of the various challenges was built on a contradiction internal to the
system that reproduced the FPE. The reformist policies of the Eastern establishment, accelerated
by World War II and the GI Bill, contributed to an opening up of the elite educational
institutions, which helped to build the relative autonomy of the Ivy League and the enlargement
(again in relative terms) of its social recruitment. This enlargement helped to open the networks
of power of the establishment to new arrivals, less disposed to accept the traditional hierarchies
and orthodoxies. The demographic element underlies much of the pressure on the establishment
that emerged over the 1960s and 1970s in the United States (and elsewhere in the world).
A second challenge includes the escalation of the Cold War after Castro came to power in
Cuba, the problems of that escalation represented by the Vietnam War, and then the
21
consequences of failure in Vietnam. The war cut the FPE off from the campuses and the idealists
who had helped bolster their role, and eventually the war divided the FPE itself. The bipartisan
consensus that kept the FPE united failed to hold together, especially with the pressures that
came with the demographics of the new set of actors. They new actors challenged the
establishment for failing to adhere to its professed ideals and invested much more in the law
itself, since they did not possess as much social capital as the FPE. New actors mounted political,
academic, and other challenges, including exposing the FPE, the power elite, and the
connections between, for example, the CIA and a number of notable academics. Many of the
protégés of the FPE split with their mentors and worked actively to defeat them.
A third challenge was economic. It became more difficult to combine Cold War
expenditures, the social policies associated with liberal reform, and the Bretton Woods trade
system then leading to huge U.S. deficits especially with Japan. The oil crisis of 1973 was the
last straw, leading to a fundamental challenge to the relatively activist state that had prevailed
since the depression of the 1930s. Expectations of reform had here too been exacerbated by the
demographics of the 1960s, which accelerated the demands for reform and therefore the pressure
on business to find a way to curb those demands. The literature from the right and the left at the
time on the crisis of the state was consistent with this analysis. Within the “liberal
establishment,” Brewster at Yale, Bundy at the Ford Foundation, and Lindsay in New York all
found their ideals thwarted to a large extent by the problem of shrinking resources. The
perception of economic crisis helped shift attention and credibility away from Keynesian
economics toward the emerging neo-liberalism associated with the University of Chicago. Nixon
said we are all Keynesians, but soon after the orthodoxy changed through an alliance among
Chicago economists, business leaders, and a supporting media led by the Wall Street Journal.
22
A fourth challenge, present in varying degrees throughout the twentieth century but
exacerbated by the economic crises and the demographic transformations of the university, was
to the generalist expertise of lawyer statespersons. Challenges from political science and
economics have already been mentioned. The most powerful of the academic and professional
challenges, linked to economics, came from the business schools, which gradually gained power
and credibility over the course of the century. They moved from low status schools of commerce
to high prestige institutions producing a competing (but also complementary) elite group.
Academic challenges from outside the law also became resources used by those investing more
deeply in the law.
Each of these challenges can be presented as an external one, but they were exacerbated
by crises that can be conceptualized as internal to the mode of the production of the legal elite.
The members of the FPE, as noted, invested in a variety of organizations that together supported
and defined the establishment. They encouraged the idealism and scholarship connected to the
law schools and the foundations, for example, and they supported efforts to make their leadership
more legitimate by making more space for new and more meritocratic arrivals. After World War
II, in fact, a group of establishment leaders – despite denunciations as traitors to their class –
worked to open up and “modernize” the Ivy League and the foundations confronted by the anti-
war and civil rights movements.
The leading individuals of the liberal establishment in these transformations comprised a
small group with very privileged backgrounds and close personal ties, chronicled recently in a
book on Kingman Brewster and his circle – MacGeorge Bundy, John Lindsay, Paul Moore, Jr.,
Elliot Richardson, and Cyrus Vance.14 Four of the six were law-trained at Harvard or Yale, and
23
all four worked at one time or another as corporate lawyers. As modernizers, they all to some
extent participated in what Kabaservice describes as Brewster’s project at Yale: “By reducing the
weight of inheritance, wealth, and social standing in admissions, Brewster was helping to shrink
the power of the WASP elite, even while he was gambling that its influence would be
redistributed to other, rising groups.”15 The modernizers sought to accommodate those who,
lacking the social capital of the WASP elite, invested much more strongly in moral virtue,
scholarly capital, and the law itself. They recognized the need to embrace and support the civil
rights and feminist revolutions of the 1960s.
With the changing demographics, furthermore, these investments led to further growth,
specialization, and the social diversification of recruitment. The new entrants pursued the
professional strategies and investments pioneered by and controlled by individuals who had
themselves invested only a little in a whole range of institutions. The new adversaries challenged
each other by borrowing from (and therefore enriching) the same repertory of legal tools and
moral arguments used to legitimate the FPE and its role. They also succeeded in deploying those
tools to represent both the challengers and the defenders of the power and policies of the FPE.
They made the legal battlefield central to the contest for power.
Finally, as described in more detail below, the FPE’s efforts to accommodate the forces
for change of the 1960s and 1970s faced not only an economic but also a social challenge that
ultimately produced the New Right. The New Right, as we shall see, specifically challenged the
“liberal elite” as out of touch with “Middle Americans” – as privileged elites fomenting social
rebellion and permissiveness.
The story of the internationalization of American law thus shows both contrast and
24
continuities between its genesis by pioneers and its further rationalization and autonomization by
the later generations. By definition, law represented only one of the resources in the portfolio of
the founding fathers; therefore it was only one of the objectives in their complex agenda of
power. Yet, even if their investment in law was relatively limited, it had been successful enough
to induce their followers to push it further – and to work to channel competing social and
economic interests towards confrontations in legal terms.
The multiplication and control of so many positions and institutions around the state,
coupled with the claim of the wise men that they needed to be trusted to fight the Cold War,
had given the FPE substantial autonomy in the implementation of policies on which they could
generally agree. Every one of their sources of power - family, corporate-state alliances,
academic legitimacy, philanthropic foundations, the state, and the Episcopal Church -- was
subjected to challenge.
The internal and external challenges led to some understandable defensive responses.
One organizational embodiment of the perceived response was the Trilateral Commission,
established in 1973. Led by David Rockefeller and funded appropriately by the Ford Foundation
among others, the early documents provide a list of virtually all the factors mentioned above. It
sought to revive the establishment as an antidote to the “excesses” of democracy seen in the
1960s. Not without some successes, the Trilateral Commission became part of the story of
transformation that we explore in this chapter.
The story of challenge and response could be traced in many spheres of domestic and
foreign policy in the United States. The focus of this chapter is on foreign policy, and we
therefore will concentrate on a few specific attacks and responses selected to account for
25
important details of the legal rules and a more general legalization that became characteristic
of foreign policy in the 1980s and 1990s. The following sections will focus on the accumulation
of investment in international human rights, the development of a legalized trade regime, and
finally the emergence of international commercial arbitration as a means to legalize business
disputing globally. It will also discuss the emergence of an industry promoting the rule of law as
a means to institutionalize what was called the Washington Consensus; and the movement that
allowed other service providers namely business consultants and investment bankers to share
and in part shape the field of business/legal advice. The processes described here point to more
general implications about the role of law that could be applied in other settings.
International Human Rights
International human rights concerns and organizations played a very small role in the first
two decades of the Cold War. Drawing on their own global networks and their access to a variety
of domestic centers of power, the lawyer statespersons of the FPE invested in human rights, but
the activity came mainly in response to the Soviet support of the International Association of
Democratic Jurists (IADJ), which had been very critical of Macarthyism in the early 1950s. John
J. McCloy, then the High Commissioner for Germany, joined with a small group of political
lawyers close to him -- including Allen Dulles, then President of the Council on Foreign
Relations and Deputy Director of the CIA -- to respond to the IADJ. They feared it had stolen
the great words-- Peace, Freedom, Justice.16 With funding and administrative support provided
by the CIA, they created the International Commission of Jurists (ICJ), located it in Geneva, and
entrusted it to the management of a group of notables in their own image: The AFFJ (American
Fund for Free Jurists) directors favored the Council on Foreign Relations approach -- the
organization of a highly exclusive elite, selected and governed by a small inner circle.17
26
The ICJ recruited well-known persons from the academic or diplomatic worlds to serve
as secretaries-general. Those who served included Norman S. Marsh, barrister and fellow of
University College Oxford; Jean Flavien Lalive, an eminent Swiss jurist who had held leading
positions in the International Red Cross, the United Nations, and the Court of Justice at the
Hague; Sir Leslie Munro, ambassador from New Zealand and president of the UN General
Assembly; and in 1963, Sean McBride. McBride, one of the founders of the Council of Europe
and a signatory of the European Convention on Human Rights, was especially active until his
dismissal in 1967 when the CIAs involvement was made public.
This human rights strategy was inseparable from the Cold War strategy linked to the FPE
and implemented in all the major institutions in and around the U.S. state. There was little
difference in this respect between the Ford Foundation and the CIA. Both were enlisted in a fight
that was organized in part as a search for high prestige friends who would fight communism (and
reinforce the power of their counterparts back in the United States). Law was relatively
unimportant in the struggle at the time. The ICJ was reactive, created to provide a counterpoint to
the IADJ. Despite the relative lack of importance of the law except for the legitimacy and cover
it might provide for politically motivated activities, the ICJ did in fact develop legal expertise
and a group of individuals schooled in human rights and willing to invest that learning and
experience in other organizations where their expertise would be valued and where they could
build their careers.
The move from the ICJ (and related organizations) to a greater institutionalization of
human rights came from a variety of investments and circumstances. First, there was the group
of individuals who tried to take the ostensible ideals of the ICJ more seriously. Several, for
example, were active in the establishment of Amnesty International in 1961 in Great Britain.
27
Seeking to remedy some of the perceived inadequacies of the ICJ, the founders of Amnesty
International sought to gain more influence for human rights arguments (and their own expertise)
through a mass organization financed exclusively by activists and characterized by a quasi-
obsessional identification with neutrality. They sought systematically to focus the attention of the
media on their campaigns and activities. They also gave priority to prisoners of conscience
punished for the expression of their opinions, and they excluded those who had committed or
encouraged acts of violence. The obsession with neutrality did not prevent many from thinking
that Amnesty was a leftist organization, but it helped to build legitimacy in the 1960s,
particularly after the revelation of the ICJs links to the CIA put it on the defensive. The growing
legitimacy helped put Amnesty and others who had increased their investment in human rights
ideals into a position to take advantage of a series of events and crises that occurred in the late
1960s and early 1970s.
Although beneath the radar screen of the Cold War at the time, there was also some
academic investment in a positive law of international human rights. The post-war quest to make
law in this domain began with the Universal Declaration of Human Rights, adopted by the
General Assembly of the United Nations in 1948 through work of a Commission chaired by
Eleanor Roosevelt. As the Cold War took shape, however, investment in this domain was quite
small -- relatively marginal to international law and to foreign policy in the United States. As
part of the law schools’ increasing on scholarship, a few scholars linked in one way or another to
human rights issues began to invest in this domain.
The first U.S. casebook on international human rights was published in 1973. The authors
were two scholars born in Europe, Louis Sohn and Thomas Buergenthal, both somewhat out of
28
the legal mainstream.18 They drew extensively on European developments and quite self-
consciously pulled together whatever might contribute to build law. The authors of the second
casebook, Richard Lillich and Frank Newman,19 followed the same strategy. These works of
legal idealism and promotion began to gain some academic respectability in the 1970s, but the
effort was not always easy. One of the early promoters of the field stated that the leaders of the
American Society of International Law – still under the sway of the FPE-- had argued that
human rights is not really law. Even worse, according to the leaders of the FPE, impractical
idealism should not overstep the focus of the Society on the law as it is.
The circumstances surrounding the presidency of Richard Nixon reflected a challenge to
the hegemony of the eastern establishment. The challenge came from generational and other
divisions about the war, symbolized by the Chicago Democratic Convention of 1968, which split
the Democratic Party and made possible Nixons election. The doves on one side of that division
were crucial in responding with an increased investment in the field of human rights. The
Congressional mandate to take human rights into account in foreign policy, in particular, was
sponsored by Donald Fraser, a Minnesota Congressman who had earlier been a leading liberal
protégé of Hubert Humphrey. Reacting to the revelations of the role of the CIA in the fall of
Allende, he and some activist members of Congress joined with the pioneer academics, including
Frank Newman, to put the country on the side of angels, by using human rights as the
touchstone of US foreign policy.20 Drawing extensively also on Amnesty International and the
now revitalized International Commission of Jurists, Congressional staffs produced a report on
Human Rights and the World Community (1974) which led to legislation calling for the State
Department to deny certain assistance to countries committing serious violations of human
rights.21
29
The key link between these idealists and the fights in the field of power was evidently
Newman, the former dean at the University of California-Berkeley (and later California Supreme
Court Justice). He came to this interest in human rights law through an acquaintance with the
International Commission of Jurists in Geneva in the late 1960s (where he went for other
reasons). He worked on the ICJ case against Greece in the U.N. in the early 1970s, in the process
developing materials that became central to the text that he and Lillich produced. Newman was
reportedly the architect of the legislation enacted into law in 1975. The idealistic strategies of
these scholars on the margin of international law thus played into U.S. palace wars, helping to
provide legitimacy for the liberal Democrats attack on U.S. intervention in Chile.
Amnesty Internationals investment in neutrality similarly paid dividends after the coup
that brought Pinochet to power along with the militarys Dirty War in Argentina. The process
that produced this emphasis on human rights on both sides revealed the response to the attacks
on the FPE and their counterparts. In Chile, the reformist elite removed from power and
persecuted by Pinochet searched for legal arguments that would gain international support. They
found that the invocation of international human rights gained credibility with the New York
Times and others, including the Chilean representatives of the Ford Foundation, who had made
friends and supported many of those now persecuted by Pinochet.
The idealists in the Ford Foundation offices caught the attention of MacGeorge Bundy,
head of the Ford Foundation since 1966, and persuaded him that the public interest law he was
supporting at home should also be implemented abroad. Ford proceeded to fund organizations in
the United States and in many other countries to support this legalization, and it required the
same kind of links to establishment boards and corporate law firms that Ford had required of the
public interest law firms in the United States to ensure their respectability. The Ford Foundation
30
became the leading provider of funds to human rights organizations, thus spreading the
movement further.
Amnesty Internationals membership and activities grew substantially. In the 1960s, 900
prisoners were the focus of Amnesty campaigns with a staff of one full-time and one part-time
salaried person. In 1976, the staff was about 40. Amnesty gained further credibility by winning
the Nobel Peace Prize in 1977, based in large part to the report on Argentina published in March
of that year. By 1981, Amnesty supported the campaigns of 4000 prisoners, had 250,000
members, and drew on a budget of 2 million and a staff of 150 persons.
The story of human rights is part of the attack on the FPEs authority joined by a
number of individuals who had been part of the consensus. The attack on the establishment
gained from the role of Humphrey Democrats (the hawks), including Jeanne Kirkpatrick and
other neo-conservatives, who joined the camp of an emerging new right organized at that time
mainly around economic issues. A new and revived set of well-funded think tanks -- American
Enterprise Institute, Hoover Institute, Heritage Foundation, Cato Institute -- pushed this new
economic and more aggressively anti-Communist agenda. They defended the authoritarian states
of Latin America that showcased the neoliberal economics centered at Chicago and promoted as
the recipe to rebuild business power in the United States and circumscribe the regulatory state.
The strategy of this counterrevolution, at the same time social and ideological, was to
take on the liberal monopoly on the intellectual marketplace exemplified by the “liberal
establishment” and the institutions they dominated. Politicians on the right noted quite clearly,
for example, that it was the Eastern establishment – represented by Elliot Richardson and
Archibald Cox – that made President Nixon submit to the legal authority that led to his
resignation. While denouncing the networks of this tight knit establishment, the new arrivals in
31
politics and others who felt marginalized in the field of power -- followed the same set of
tactics. As suggested above, the creation of a new generation of think tanks, such as the Heritage
Foundation, sealed this new reactionary alliance that triumphed with the Reagan election -- using
the media by playing on the double register of economic rationality and moral order.
The success of these new competitors nourished the development of a response that also
changed the rules of the game. Each of the adversaries had to increase their investments in policy
research, while at the same time privileging the quest for media attention. The production of
learning became less important than its packaging -- to facilitate the task of journalists charged
with organizing confrontations between experts as spectacles.
The new think tanks attracted one portion of the divided establishment in an alliance with
conservative businesses and those disturbed by the various movements of the 1960s and the way
the establishment related to them. Their opponents drew on the full ensemble of the institutions -
- traditional foundations, professional associations, universities, churches, NGOs where their
positions remained very strong and the resources still formidable. These positions could be used
in order to generate a counter attack against the ultra-conservative (and even populist) offensive.
The terrain of international human rights offered a number of tactical advantages to the
individuals aligned against the emerging right. That is not to say, however, that investment in
human rights was simply a matter of opportunism. Again, we can best understand the dynamic
by returning to the process of reinvestment in a professional movement in human rights. We can
then examine how a very specific socio-political configuration contributed to shape the new
structures around which the institutions for the protection of human rights were re-constructed.
Jimmy Carter, fortified and guided by the Trilateral Commission, picked up the human
rights mantle. He sought more generally, however, to re-invigorate the great design of an
32
international alliance of notables. Compensating for the loss of the technocratic/reformist
illusions behind the Alliance for Progress and the War on Poverty, he borrowed from the
ideology of human rights. The appeal to morality was consistent with the rhetoric of the FPE, but
the legalistic turn was also made more opportune by the perceptions of economic crisis. The
various economic problems noted before had undermined the progressive reform ideals given
voice in the 1960s. As stated cynically by Samuel Huntington, one of the key thinkers behind the
Trilateral Commission, the conjuncture of crises seemed to require a limitation of the aspirations
of subordinated groups toward more equality, even for more prosperity. Such aspirations, from
this perspective, were rendering democracies ungovernable. The discourse in favor of human
rights -- limited generally to political and civil rights -- offered a substitute ideology. It was not
inconsistent with a new emphasis on the needs of business and a disqualification of social
movements as rent-seeking activity.
For the new left, seeing this aspect of the emphasis on human rights, the virtuous
discourse was nothing more than the moral mask on the face of trilateralism.22 This new tactic
offered the advantage of turning the page on the failure in Vietnam and on the deeds of the
military dictatorships, while also allowing a counter offensive against the claims of the
aggressive voices from the third world who could also be pressured to conform to democratic
dictates. In a parallel fashion, and in a more classical manner, this human rights strategy could
also put pressure, through the focus on the treatment of dissidents and Soviet Jews, on the
communist block -- weakened by the economic crisis. From a left perspective, therefore, this
symbolic weapon continued the hegemonic enterprise in the name of the Cold War.
There was truth in the leftist critique of the human rights strategy. Yet the shifting of
positions in the strategic game contradicts ex post this diagnosis. In particular, the later victory
33
of the new right and neo-liberal economics, embodied in the Reagan victory, transformed the
nature of the human rights strategy. It became the center of a political fight between the new
conservative holders of state power and a large coalition uniting the most liberal fraction of the
establishment and a portion of the left coming from the civil rights movement (ACLU, NAACP).
This alliance gave birth to a third generation of the movements for the protection of
human rights, with Human Rights Watch the leading example. Contrary to Amnesty, this third
generation of actors and institutions was willing to accept more political ambitions and a more
elitist profile. But it was not a matter of following a secret strategy among notables of the state,
as had been the case ten years earlier. On the contrary, these professional notables decided to
invest in the terrain of human rights to contest the orientations of a new ultraconservative right
that was fighting against their institutional bases in the social state -- in the name of an anti-
communist crusade. And in this combat, where the stakes were as much domestic as
international, this potential new elite was quite prepared to mobilize their social capital of
personal relations as well as the professional institutions that they controlled.
The political configuration was in fact nearly the inverse of the ICJ. The alliance was
cemented by a common opposition to the hawks who supported the Vietnam War and similar
interventions. Still, it also was the by now familiar mix of noblesse oblige and civic convictions
that led them to mobilize in the service of the public interest. It was no longer the regime of the
Soviets, however, that appeared to be the principle enemy. The target was now military
dictatorships inherited from the Cold War and converted by the Chicago boys into a new
religion of the market. The symbolic target was Jeanne Kirkpatrick and her rationale for the
support of Pinochet and the Argentine generals-- that they were authoritarians, as distinguished
from Communist totalitarians.
34
In 1982, with funding from the Ford Foundation and others, Human Rights Watch, along
with a new branch termed Americas Watch, became formally established. The director was
Aryeh Neier, a prominent former leader of the ACLU, and the early board included
establishment lawyers identified with opposition to the Vietnam War. As one of the individuals
noted, the focus was on the state at home even though the investigations were conducted abroad:
we were oriented toward Washington, D.C. at the time.23 This new elite of human rights --
which flourished in institutions like Human Rights Watch -- reinforced a strategy of
mediatization designed to combat the tactics adopted by the new right.
Professionalization and mediatization mutually reinforced each other. In order to gain the
attention of the media in the new era of adversary politics, information not only had to be
credible, but also sexy. As NGOs multiplied in number, moreover, the competition increased
in the media and in the domain of philanthropy. The competition exacerbated because the
success of NGOs in gaining exposure in the media determined in large part their visibility, their
capacity to recruit, and even finally their budget. The individual contributions made to these
enterprises and, to a certain extent, their support from the foundations, were closely connected to
their notoriety. In this new context, the professionals that they recruited were anxious to operate
with objectives and methods that appeared to be most effective pursuant to this media-oriented
strategy.
The new breed of activist NGOs were also dependent on the philanthropic foundations.
Indeed, they owed their existence to the symbiotic relationship between the professionals of
activism and the managers of philanthropy. The foundations made their decisions by consulting
the judgment of peers, in this case the small network of professionals and intellectuals of
philanthropic activism, both for the selection of projects and for their evaluation. They also
35
contributed to the education of new generations of professionals. Activities included the
financing of seminars about human rights, courses on the elite campuses, and the granting of
intern fellowships to young graduates who wanted an apprenticeship in an NGO -- thus
developing local paths for the development of leaders for the often related transnational NGOs.
With the active support of the foundations, therefore, the human rights field was developed far
more extensively.
Within the emerging field of international human rights, as in other domains, the
competition permitted this space of practice to develop itself and to professionalize under the
impulse of policy entrepreneurs. In many respects, as suggested by several journalistic accounts,
the prosperity of the human rights field in the 1980s -- and the conversion of the Reagan
administration with respect to Chile -- came from the widely reported debates between Reagan
administration officials, especially Elliot Abrams, and human rights advocates such as Aryeh
Neier and Michael Posner. The media success on both sides of these debates ensured that, in the
words of a New York Times editor, the American public has made it fairly clear that it sees
human rights as an absolute good -- a universal aspiration to be pursued for its own sake...24 In
addition, the debates forced the human rights movement to balance their reporting in terms of
the countries that were looked at, and to upgrade the quality of the work that was produced.
Finally, and not insignificantly, the adversarial media campaign organized around human rights
gave legitimacy and importance to law and to lawyers in debates around foreign policy. The
legal expertise of the new generation of lawyers became central to the enterprise.
This return of the legal establishment was less about lawyer statespersons and more about
a set of connected organizations that produced and autonomized law in relation to the institutions
36
that the FPE had controlled and served the universities, the foundations, the law firms, and
NGOs that draw on all these sources. International human rights law became central to U.S.
foreign policy and closely defined in relation to U.S. politics. The international agenda depended
on issues with credibility in the United States violence against women, elections, a media free
from government domination. These products of the alliance among elite campuses, the
executive branch, and the U.S. media restored a provisional consensus in foreign policy that had
been lost in the 1960s. They provided a justification for U.S. intervention in Kosovo and much of
the justification for the War in Iraq.
This return of the establishment in the form of a body of rules for foreign policy also
reflected a new set of clients eager to move into the establishment. In particular, a new group of
extremely wealthy business clients the Robber Barons of the 1980s sought both
respectability and legitimacy in a new economic era of deregulation and lightning capital
mobility. The new energy and body of resources helping to sustain and revitalize the FPE was
led and epitomized by George Soros, the leading funder of Human Rights Watch and creator of
his own powerful Open Society Institute. But it could also be found in many of the activities of
the foundations created by the technology boom of the 1990s. No longer able to dominate the
statecraft with lawyer statespersons armed only with generalist knowledge, the FPE responded to
the challenge of the 1970s and 1980s by drawing on its apparatus of institutions around the state
to legalize a position consistent both with a strong position for law and lawyers and the global
interests of their clients anxious to invest in places with legitimate governments to go with their
newly privatized economies.
Trade and the World Trade Organization
One of the tenets of dollar diplomacy and Wilsonian idealism early in the 20th century
37
was a belief that free trade would lead to economic growth and world peace. The long U.S.
hostility to a European-style empire was consistent with an opposition to systems of colonial
exploitation that not incidentally closed markets to U.S. exports. This ideal was often expressed
but faced difficulties in practice. High tariffs characterized U.S. policies throughout most of the
first half of the century as the more particular interests of business overcame the general
sentiments of the FPE.
The story revolves around the State Department the FPEs traditional preserve in the
Executive Branch – in the period after World War II. State had long identified with free trade,
and that position led to support after the war for the proposed International Trade Organization --
one of the three proposed Bretton Woods institutions, along with the International Monetary
Fund and the World Bank. Cold War tenets proclaimed by the FPE also tended to support more
open trade policies as a way to open markets to U.S. goods and to build trading alliances against
Communism, but there was no strong movement promoted either by businesses desiring more
open markets or by the trade idealists at State. As had happened in the past, the concerns for
more open markets did not get top priority. Truman and Acheson were not willing to fight for it,
and they settled for the General Agreement on Trade and Tariffs (GATT) without the proposed
organizational structure.
During the 1950s, in fact, the policies promoted by the Department of State were
frequently at odds with business concerns. In part, the mismatch came from the social position
asserted at State. John Heinz, head of the Heinz food products company, reported that the staff at
a briefing by State treated him as a sophomore, instead of the head of a great company with
wide knowledge of world conditions in general, and trade in particular.25 The Cold War, in
addition, provided a justification for State to tolerate the trade sins of political allies. Neither
38
the particular aims of businesses seeking broader markets nor the general commitment to free
trade had a great impact in practice on the State Department. Free trade was just one of many
positions supported in principle by the FPE, and it did not interfere with the practice of a more
personal diplomacy linked to the Cold War and the alliance of notables.
The initiative on trade issues began especially during the Kennedy administration.
Kennedys Undersecretary of State for Trade was George Ball, a longtime pillar of Cleary
Gottlieb, an advisor to Jean Monnet, the lawyer and lobbyist for the European Community, and
later one of the founders of the Trilateral Commission. Fitting his position with the FPE, he had a
strong belief in free trade as a variation of the old nineteenth-century theology that free trade led
to peace, updated for the Cold War world.26 In 1961, during the GATT tariff negotiations
termed the Dillon Round, Ball persuaded Kennedy to allow the European Community to protect
its markets from U.S. agriculture. From his perspective, once again, the relationships with the EC
were more important than the details of trade issues. The Department of Commerce, much closer
to business, complained of a lack of involvement in the decision and of the substance of the
proposed policy, but Kennedy, as could be expected, proposed trade legislation close to Balls
policy orientation, kicking it off with speeches by Ball and others and strong media support by
the New York Times. The bill ultimately passed in 1962, but growing business hostility to State
led Kennedy to make a key concession. He would appoint a Special Trade Representative apart
from State and who would negotiate further trade issues. Treating the concession as more
symbolic than a mandate to move trade issues outside the FPE, Kennedy offered the position to
John J. McCloy, but McCloy turned it down. After further consultations within the FPE,
Kennedy appointed Christian Herter to the position.
Herter had the classic profile of the elder statesman. He was the grandson of a German
39
immigrant who had a very successful career as architect in New York. Born in Paris in 1895,
both his parents were painters. He graduated from Harvard, entered into diplomatic service, and
joined the State Department. His marriage to the granddaughter of an associate of John D.
Rockefeller relieved financial concerns and permitted him to prolong his cosmopolitan
apprenticeship, which was prestigious but poorly compensated. He became the assistant to
Herbert Hoover for missions of aid to central Europe. After these adventures of youth, he
began a real career as a Massachusetts politician, where he was elected through the support of his
Boston Brahmin friends. Valued by the reformist and internationalist elite, friendly with
McCloy, he was named as under secretary and then Secretary of State by Eisenhower. He was
especially well-prepared for the honorific functions of an elder statesman also through
experience in numerous quasi-governmental commissions of the Alliance for Progress and the
Atlantic Alliance.
Despite the formal separation from State, therefore, trade remained the province of the
elite of the FPE. The close relationship between State and the Trade Representative continued
after Johnson became President, although the Trade Representative began to take a stance more
supportive of pressure on U.S. allies, especially the European Community (despite pressure from
Acheson and MacGeorge Bundy to ease up).
Economic difficulties, the erosion of the power of the FPE, and a growing awareness of
the imbalance in trade with the increasingly powerful Japanese economy, called into question the
existing State-oriented approach to trade issues. Nixon began to listen more carefully to business
concerns and to increase the pressure on allies. The FPE -- retooling in the Trilateral
Commission in part in response to Nixons seeming move toward protectionism -- continued to
push for a liberalism akin to what State had long fostered, and David Rockefeller, one of the key
40
founders, had already began to lobby for stronger policies in favor of opening markets, but it was
the administration of Nixon, led by Treasury Secretary John Connally, that finally became more
confrontational. Under the leadership of William Eberle, a Harvard JD-MBA and former
business executive, the Office of the Trade Representative was retooled with the idea of actively
promoting trade liberalization outside the United States, not simply promoting tariff reductions
through new GATT rounds. The argument made by Eberle and Harold Malmgren, one of his
deputies, was that economic and financial issues were starting to replace traditional diplomatic
issues as the main stuff of foreign policy.27 The Trade Act of 1974, signed by Gerald Ford,
ratified and reinforced this transformation in the position of the Trade Representative.
The Trade Act also provided the Section 301 remedy for U.S. businesses claiming that
they are excluded unfairly from foreign markets. Now U.S. businesses could make their
arguments without depending on the good graces of the executive branch. This and other more
aggressive and pro-business positions on trade created opportunities for legal entrepreneurs to
move away from a domain of negotiations among notables. As Dryden notes,
Many USTR graduates were finding steady employment through work for foreign
governments and companies... [a] s foreign trade began to play a larger role in the
American economy in the 1970s and 1980s.... Starting with the Trade Act of 1974,
representatives of American business were notably successful in engineering changes in
the dumping laws and other trade regulations that virtually required foreign companies
and governments to hire small armies of Washington-based experts.28
There were opportunities for both sides of the trade practice. Those who traditionally resisted
opening U.S. markets to foreign competition could make a case through the doctrine of anti-
dumping, while the new generation of business -- including the new financial services industries
-- aggressively seeking new markets and places to invest, could use Section 301. Adversarial
trade practice began to flourish, helping to sustain the traditional FPE orientation toward more
41
free trade, now bolstered with more demanding clients, but also giving legal doctrines that could
be invoked by the more traditionally oriented businesses.
As noted by one of the longtime participants in trade law, the trade bar was pretty small
up through ... the middle 70s.29 Steptoe and Johnson, a prominent Washington D.C. firm,
appears to have been one of the pioneers, led by Monroe Leigh, a well-known figure in public
international law, former legal advisor to the State Department, and a long time teacher (until
1988) of trade law at the University of Virginia School of Law. Richard Cunningham, also at
Steptoe, was another one of the deans of the practice field. Those who left the USTR office
followed the pattern of the FPE in moving from government back to client service, but in this
case they committed themselves to a specialized expertise:
at the end of the Tokyo Round [in the late 1970s, the USTR alumni] all made out really
well. They got partnerships and the real boom, the boom really went up during the 80s.
The early 80s was a great time to be in the trade practice because there was a drastic, you
had a big expansion in imports, you had the high dollar policy of the ... Reaganites.30
According to another,
I would view the major change in that as being the Tokyo round GATT negotiations, and
the 1979 Trade Agreements Act. What that did was to greatly judicialize the practice.
Ninety percent of the practice of trade law is dumping and countervail…. And so it went
from being this wildly informal procedure where you never saw the other side’s facts,
and the files are literally this thick, to being everyone saw everyone else’s facts. The files
are now infinite. And I can actually quantify it for you. I was at Steptoe & Johnson. We
had represented British Steel in 1978 in a series of 6 linked anti-dumping cases. And I
was one of the junior lawyers. There were 3½ lawyers working on it. And then … the
cases were settled and the law was changed in 79. The same cases were brought in
1980. I mean literally identical, the identical cases, and it took 10½ lawyers.31
Trade practice proceeded in two basic ways. According to one of the leaders of the trade
bar in Washington, D.C., And they are fairly separate. One is anti-dumping and countervailing
duty litigation which is a kind of highly specialized form or administrative litigation which the
law firms really got into in the 1980s when you had the dumping cases on steel. And so most of
42
the big Washington, D.C. law firms will have an anti-dumping practice.32
The other, according to the same source, is sort of like trade policy, but it has a strong
legal aspect.
I think that trade law has always been unique because the GATT gave you a real legal
system. Theres always been this debate about ... international rules or international
norms [are] really law. And what happened in the GATT is you got a sanction in the
dispute settlement process, it was built into GATT article 23 the potential for getting
compensation.... And then you see the process becoming much more elaborate and legal
in the later 1980s.. [T]he decisions become a lot longer, the effort to articulate doctrine
becomes more elaborate. The process becomes more legalistic.33
Citing two U.S. professors, John Jackson and Robert Hudec, as influential in the process of
legalization, the interviewee noted that GATT was interpreted as a legal instrument rather than,
you know, kind of a political/diplomatic instrument.34 Advocacy, however, was somewhat
muted. The GATT has roots in diplomacy and for that reason is much more of a civil forum so...
New York lawyers dont fit in real well.35 This kind of trade law, now focused on the WTO,
also appears to be more prestigious. Rather than the strictly business efforts to limit competition,
the WTO partakes of policy, diplomacy, and the long commitment of the FPE to principles of
free trade.
The WTO, established finally after the Uruguay Round and the support of the Clinton
Administration, protected the key elements of U.S. trade practice, including anti-dumping, and
provided a natural forum for U.S. trade lawyers to push further in the direction of legalization. In
addition, through the efforts of a coalition of U.S. businesses heavily invested in the “knowledge
industry” – drug companies, software companies, the film industry – aggressive lobbyists
succeeded first in making the section 301 remedy available with respect to intellectual property
protection and then in moving the key forum for the protection of intellectual property from the
43
World Intellectual Property Organization to the WTO, thereby entrenching and legalizing the
rules that favor U.S. and a few other countries. One of the negotiators of the WTO agreement,
more generally, noted there was general support for a more effective dispute resolution that
would eliminate the state veto process found in the GATT.36 And despite nearly universal
opposition to U.S. style anti-dumping laws, long tainted as protectionist, the U.S. took the
position that it was politically impossible for negotiators to agree to any provision that would
restrict the scope of anti-dumping laws. The result has been a further increase in the legalization
of U.S. style free trade, and one result is that the other parties including Europe and now even
some developing countries such as India and Brazil are building the legal credibility and
adversarial structure themselves by taking advantage of the strategic opportunities presented by
the legal structure. Further, even the opponents of globalization have themselves treated the
WTO as a quasi-legal forum, criticizing it for a lack of transparancy, lack of independent
appellate review, and above all for lacking mechanisms to provide standing to environmental
groups. The result is that the international field of trade law has a very strong momentum both to
enforce rules that promote the free trade long part of the ideology of the FPE and to perpetuate
U.S. approaches build through U.S. politics toward defining how to enforce such policies and
provide outlets for important businesses harmed by international competition. There is now an
active body of panelists schooled in trade law and practice and eager to continue to develop the
field.
Economic challenges, the weakness of the FPE in the 1970s, a stronger business
commitment to opening markets abroad, a new generation of lawyers and academics investing in
trade, and growing adversarial opportunities, again challenged the FPE and forced institutional
responses. The responses legalized and provided some autonomy for what had been handled
44
through the personal relations of notables. The province of generalists with multiple portfolios
went mainly to what became a highly specialized bar. At the same time, the transformation kept
and even enhanced the ability of law and lawyers to assert control over the domain of trade
even if the business concerns weighed very heavily on the rules that were put in place.
International Commercial Arbitration
Arbitration came of age with the international alliance of notables or statespersons. Elihu
Root, the grandfather of the FPE in the United States, won the Nobel Peace Prize in part for his
role in establishing the Hague Court of International Arbitration prior to World War I. After
World War I, the same group of individuals behind the Council of Foreign Relations helped to
promote the International Chamber of Commerce, established in Paris in 1919 by business
leaders from the allied countries in order to encourage trade and open markets. The ICC
International Court of Arbitration was established right away, in 1923, in order to encourage the
development of commercial arbitration to resolve transnational business disputes. International
arbitration, quite simply, is based on the idea that, if other means fail to resolve a dispute, the
dispute can be entrusted to the good judgment of wise statespersons known to the international
community.
The business of arbitration began relatively slowly, consistent with a reliance on
personal relations before entrusting the dispute to one or more of the notables acting as
arbitrators. The ICC had some 3000 requests for arbitration in the period from 1923 to 1976, and
then the business rose dramatically with the next 3000 arbitrations coming in the following
eleven years. The commercial arbitration was centered on French and Swiss professors, but there
were important ties with the FPE in the United States. Two of the leading Swiss arbitrators in the
period after World War II, for example, were Pierre Lalive and Jean-Flavian Lalive from
45
Geneva, with the latter also one of the early heads of the International Commission of Jurists.
The leading French figure in much of that period was Pierre Bellet, who also had close ties with
the U.S. diplomatic community.
For the most part, however, international commercial arbitration was a relatively
marginal even if elite activity until the 1980s. It was an activity of distinguished amateurs
also involved in many other activities as was true of the FPE. There was scholarly investment
in the field, but it was the broad mix of intellectual and social capital that gave authority to the
relatively small pool of arbitrators. At the same time, however, the prestige of arbitration -- for
state and business disputes -- meant that arbitration clauses were placed in the various resource
exploitation agreements that characterized the relationships between, for example, the Seven
Sister oil companies and the countries where they operated their business.
Nevertheless, major multinational companies had little use for arbitration in practice,
which is why the caseloads of the ICC and its few competitors remained quite small. Disputes
were managed through personal relationships that extended over long periods of time. The
lawyer for the Seven Sisters, for example, was John J. McCloy, and there is no evidence that
McCloy played any role in handling disputes between companies and countries. He instead
helped protect the Seven Sisters from antitrust trouble in the United States.
The oil nationalizations that occurred increasingly in the post World War II period were
resolved mainly through state pressure and personal relations, but they also provided an
opportunity for the arbitration community to build its international business reputation and show
its commitment to a private law the so-called lex mercatoria that would protect business
investments against state action. This marketing in the developed world, coupled with a number
of legal mavericks and entrepreneurs who helped convince third world countries of the utility of
46
legal investment and helped spread arbitration clauses, especially those naming the ICC as the
presiding authority. The ICC also led the charge for the creation and adoption of the New York
Convention of 1958 -- which made arbitration awards more enforceable than litigation in court.
The field of arbitration -- as a small club of dilettantes thrived under the umbrella of
the ICC and the lex mercatoria in the 1960s. Disputes were resolved through a mix of social
capital and legal capital, more like todays mediation than the litigation-like processes now
associated with arbitration.
The small world was shaken by the establishment of OPEC, the petroleum crisis of 1973,
and the subsequent recycling of petrodollars into large infrastructure projects, which meant a
proliferation of arbitration clauses involving U.S. and other multinationals and third world
countries. The proliferation of clauses, however, still did not mean that they necessarily would be
used. There still were long personal relationships that could be used to moderate disputes and
split differences when projects cost more than originally predicted.
The role of the lawyer statesperson, as the activities of McCloy suggest, had been to give
advice to company leaders, help them negotiate when appropriate with governmental entities,
and use their company contacts to strengthen their ability to hold numerous other positions in
private and public life. Challenges mentioned earlier from within the United States combined
with the external changes to reshape the world of arbitration. Many have been listed, but they
merit highlighting in relation to international commercial arbitration. First, MBAs were gaining
power in terms of business advice and in the management of corporations, and their training and
relative lack of social capital led them to emphasize the specific terms of contracts and their
performance over personal relationships. One of the reasons for an increase in arbitrations in the
late 1970s and into the1980s, therefore, was that a new generation of business leadership
47
evaluated contractual and personal relationships differently than predecessors -- who had been
confident that matters would work out to everybodys satisfaction. Another could be that third
worldism in the developing countries also undermined some of the personal relationships
between multinationals and elites in host countries.
The economic crisis and petrodollar abundance also meant that the MBAs could try out
their financial tools and get involved in mergers and takeovers, which undermined the role of
lawyer advisor in two respects. One is that the lawyers lacked the financial tools to play a leading
role and the second is that a wave of mergers and acquisitions undermined longstanding lawyer-
client relationships. The new situation also provided an opportunity for lawyers outside the elite
to invent ways to make legal expertise serve business needs. In particular, Skadden Arps and
Wachtell Lipton – now members of the New York elite -- pioneered in aggressive litigation as
part of a new business strategy both for general competition and for preventing or facilitating
mergers and acquisitions. Soon the old white shoe firms of the FPE had to copy the strategy
and boost the status of litigators long subservient to the elite of corporate advisors.
In the field of international commercial arbitration, the caseload started to expand
dramatically in the 1980s. Finding themselves with a notable disadvantage using their own local
legal resources, in addition, a number of third world countries began to employ U.S. law firms,
especially those located in Paris and socialized to the elite world of the International Chamber of
Commerce. Sonnetrach, the Algerian oil and gas company, for example, hired Shearman and
Sterling for their arbitrations. As the field expanded and commercial litigation began to take off
in the United States, litigators and their tactics began to be found in international commercial
arbitration. Instead of gentlemanly proceedings conducted under the legal doctrine of the lex
mercatoria, there was cross-examination, extended efforts at discovery, motions, and above all
48
mountains of documents.
The grand old men of arbitration resisted this invasion, and they lamented the
proceduralization and bureaucratization of arbitration that went with this increased caseload
and adversarial approach. They continued to thrive because of their reputations and social
capital, but a new group of self-conscious technocrats from the next generation led the
transition from the lex mercatoria and social capital arbitration by the lawyer statespersons
according to the norms of the group to off-shore litigation that replaced the vagueness of the
lex mercatoria with the commercial law of New York or England. The U.S. law firms also
helped to multiply the number of arbitration centers, creating a competition and a pressure for all
countries to join the international commercial arbitration mainstream. The field continues to
thrive and bring the legitimacy of a full legal system to the norms that the statespersons had used
to protect global business.
In relation to the other examples, we can see that a world of personal relations that
informally guaranteed the rights of private property and the terms of investments, the FPE
thrived and could, when necessary, draw on and work with their counterparts in Europe
organized mainly around the ICC itself a product of so-called Wilsonian idealism. The
challenge of MBAs, increased business activity, third worldism, and the related development of
litigation long subordinate to deal-making and business advice in the corporate firms as a
business weapon, threatened the world of the grand old men while establishing an off-shore
litigation that institutionalized in a specialized legal arena what had been handled informally by
generalists cut from the same mold as the FPE. As with respect to trade, the move gave a more
central place to business concerns and business power, but it also protected -- even enhanced --
the role of law and lawyers in presiding over the institutional arenas for handling business
49
disputes.
A New Generation
Each of the three examples illustrates the decline of the FPE as a social group oriented
around law and capable of occupying all the major positions in business, law, the academy, and
the state. What has replaced it is a multi-polar field of quasi state power with a much more
institutionalized division of roles. At the same time, however, there is still a fair amount of
mobility and multi-positionality that can be tailored to fit the particular mixes of competencies
and social capital available to the overlapping players in and around the law. Three examples of
representatives of the generation that followed the FPE – one each from the three topics of the
case studies – can illustrate the variation from the earlier generation. Michael Posner joined
Human Rights First (formerly Lawyers Committee for Human rights) in 1978. He received his
J.D. from the University of California, Berkeley Law School (Boalt Hall) in 1975. While in law
school, he became one of the “interns” of the International Commission of Jurists through his
mentor, Dean Frank Newman of the University of California at Berkeley -- one of the U.S.
pioneers of human rights and later a justice of the California Supreme Court. Since there were
few if any legal jobs in the field of human rights at the time he graduated, he took a job with
Sonnenschein, Nath & Rosenthal in Chicago. Luckily for him, the Lawyers Committee for
Human Rights was formed and he became the Executive Director -- after having been sponsored
by Newman. As Executive Director, he has also lectured extensively at elite law schools,
including Yale and Columbia. He is very well connected in the world of corporate law firms in
New York, and indeed they have been essential resources in the work of Human Rights First.
The various boards and councils that support HRF represent the elite of the legal profession in
the United States in the academy and in the large corporate law firms. HRF is at the forefront in
50
coordinating an enlightened legal response to Bush programs restricting civil liberties and
imiting immigration in the name of national security.
Gary N. Horlick is a partner in the leading Washington, D.C. law firm of Wilmer, Cutler
and Pickering. He graduated from Dartmouth College, Cambridge University (where he obtained
a B.A. and Diploma in International Law) and the Yale Law School (1973). After graduation, he
worked for the Ford Foundation in South America for several years, and he moved into
international work as an associate in Steptoe and Johnson in D.C. Through Monroe Leigh, a
former Legal Advisor to the Department of State and one of the pioneers of trade law, which he
taught at the University of Virginia. Steptoe was one of the first firms to do trade law. Horlick
happened into some of the early trade cases and quickly became an expert, which then led to a
position as International Trade Counsel for the U.S. Senate Committee on Finance. He followed
that with the Deputy Assistant Secretary of Commerce for Import Administration, leaving the
government in 1983. Both positions focused heavily on the emerging field of trade law. He has
taught at Yale Law School and Georgetown Law Center, among other places, and been on the
Executive Council of the American Branch of the International Law Association. He is also a
member of the Council on Foreign Relations. He frequently lectures on trade law and policy.
James Carter is a partner in New York with Sullivan and Cromwell. He attended Yale
College, had a one year Fulbright Scholarship, and then graduated from Yale Law School in
1969. He joined Sullivan and Cromwell because of his international interest. Working with his
mentor John Stevenson, another former Legal Advisor to the Department of State, Carter became
involved in several of the leading oil expropriation cases in the early 1970s. The oil arbitrations
brought him into the world of international commercial arbitration, and he has been an
arbitration specialist since then. He has also been active in the ABA, where among many other
51
activities he was the chair of the Section on International Law, the American Society of
International Law, where he is the President as of this writing, and the American Arbitration
Association, whose executive committee he chairs. He is also a member of the Council of
Foreign Relations.
All three of these leading international lawyers are active in the academy, the bar, and in
practice, but they are far more specialized than the previous generation and even than their own
mentors – Frank Newman, Monroe Leigh, and John Stevenson --, whose careers involved more
positions and more interchange between government, the academy, and private practice. It is not
that these leaders of the generation after the FPE neglect public service or the academy. They
take advantage of and combine many activities, but each has a core specialization that is central
to their professional careers and to their practices. In addition, they reinforce the “hollow” field
of power that allowed the FPE to prosper. Power comes from an interaction of New York
representing business and finance, Washington D.C representing the state, and the Ivy League,
representing legitimate and legitimating knowledge. Finally, in contrast to most of the members
of the preceding generation of FPE notables, all appear to be from middle class backgrounds and
lack the prep school education so important to their predecessors.
Conclusion
External and internal challenges to the power of the FPE during and after its apotheosis in
the Kennedy administration led in each case foreign policy, trade, and international
commercial arbitration to a weakening in the power of the FPE. The legal and other capital
behind the FPE allowed it generally to weather the storm in the governance of the state and the
economy, but the price was the delegation of control to more specialized and legalized sets of
institutions a division of labor or bureaucratization in the terms of classical sociology. The set
52
of developments kept and indeed enhanced the role of law itself in all three areas, which now are
embedded in mutually reinforcing institutions in particular, the elite legal academy as source of
talent and legitimating doctrine; leading corporate law firms in New York and Washington, D.C.;
elite NGOs defending and attacking the various institutions and practices of, for example, U.S.
foreign policy or the WTO; elite foundations bridging the worlds of law firms, the legal
academy, and the NGOs; and sets of institutions including the World Bank, the IMF, the WTO,
and various centers of arbitration all looking especially to the U.S. for legitimacy.
At the same time, despite an increasing division of labor, the law schools continue to attract
idealists socialized to expect that their career ought to start with a stint in a large corporate law
firm.
The rules that emerge from these sets of relationships, in addition, are bound to be ones
that favor the interests and practices of the U.S. business establishment, incorporating now the
1980s versions of the nineteenth century robber barons, and those who serve that establishment,
including law firms. They are updated and legalized versions of the combination of client
interests and lawyer ideals produced early in the life of the FPE and similarly promoting law
and lawyers, legitimating their role by investing and channeling noblesse oblige or legal
idealism, and at the same time serving the general interests of their clients. U.S. legal weapons
scorched earth litigation, playing the U.S. media are of great importance in these settings.
These sets of norms and practices provide the beginnings of a strong effort to legitimate U.S.
domination in the global marketplace. The transnational legal fields that contain these practice
areas are made up increasingly out of U.S. material. Along with the examples discussed, we can
also point to the legal response to neo-liberal economics as a basis for foreign aid and the
policies of the World Bank and IMF. Lawyers assimilated the attack and have succeeded in
53
making the rule of law a key element of developmental assistance promoted by virtually all the
actors in the field including the investment banks and business consultants working equally
hard to globalize a U.S.-friendly version of the rules of the game.
Our analysis in terms of field reveals the contrasts and continuities between the grand
notables of the FPE and the legal enterprises and technologies that they helped to construct: from
huge law firms to law schools competing to legitimate the law to legal specialties that serve as
custodians of an area of practice and its orientation. Indeed all the case studies of the second part
illustrate perfectly the process of institutionalization and autonomization. We see rather slow
departures in frequently ambiguous contexts and dubious strategies (for instance mobilizing the
rhetoric of human rights in the Cold War politics or bringing in lawyers for oil disputes) and then
a sudden acceleration when social, political or economic competition is channeled into these
various legal arenas to contribute to its institutionalization. In the trade arena, for example, trade
disputes become legalized and more "rule based" in dramatic contrast to an earlier period
whentrade issues were not considered as “real law.” Indeed, the similarities between the three
stories reveal the same process of professionalization occurring new domains.
Another way to see the success of law is to reflect on the ability of lawyers to take
external conflicts within and among the leading institutions of the state and manage them by
translating them into law. In arbitration, trade, and human rights, the “take-off period” is the one
where contending groups use an emerging field as a battlefield, leading lawyers to prosper by
selling their weaponry to both sides. The legal field succeeds by managing and facilitating
exchange between the contending factions contending for the definition and control of the state.
The institutions within each of the subfields manage to replicate and manage – and therefore
“represent” the factions at war on the outside.
54
The price of legalization is some degree of autonomization, even if the rules and practices
tend to favor the U.S. Sometimes the U.S. will lose or be held accountable as a price for the
legitimacy of the system. The Bush administrations reaction in many arenas is that, as the most
powerful nation, it ought not to lose. Accordingly, we see the various positions taken on global
warming, the International Criminal Tribunal, the Anti-Ballistic Missle Treaty, and the initial
but later reversed stand on steel and the WTO. The war in Iraq, similarly, probably could have
been justified in some manner similar to the war in Kosovo, but the Bush administration elected
to proceed with different rationales. The administration drew on human rights, and that remains
the most widely-supported justification, but the approach was very different from that of
President Clinton. It is not surprising that George Soros in particular is leading the campaign
against Bush precisely for Bushs undermining of the world capitalist system that Soros and
others worked so hard to build and legitimate. The role of law and lawyers is therefore still
contested by those who mounted the major challenge to the establishment from the right in the
1980s.
The transformations discussed in this chapter point to a survival and reinforcement of the
position of law in the United States over the course of the century. The highest status in the legal
profession still goes to those who embody the combination of major corporate clients and a
noblesse oblige that helps create a legitimate playing field for those clients. The General Counsel
for General Electric, for example, called for a reinforcement of the role of the lawyer-statesman,
which he suggested might thrive best with in-house counsel rather than law firms.37 The success
in legalization, however, is also part of a pattern of circumscribing the power of the FPE. Serving
almost as a relatively autonomous and reformist state in the period after World War II, thanks
especially to the Cold War, they survived attack but only by entrenching the law and losing some
55
of their freedom to act including some of their freedom to act above the law.
Finally, it is important to note that these are not examples of U.S. exceptionalism. Similar
processes take place in other countries yet with different timings. It is precisely the different
rhythms and different patterns according to the mode of production of law and lawyers that has
to be taken into account in other countries. The import and export processes that proceed among
countries different in the place of law are central to understanding the transformations that take
place constantly in the field of international law.
Bibliographical Essay
This chapter draws extensively on our jointly published works. Our first book, Dealing in
Virtue: International Commercial Arbitration and the Construction of a Transnational Legal
Order (University of Chicago Press 1996), examined the development of international
commercial arbitration in the period after World War II. The second, The Internationalization of
Palace Wars: Lawyers. Economists, and the Contest to Transform Latin American States
(University of Chicago Press 2002), explored the transformation of the U.S. state since the 1960s
and the transformation in globalization processes based on the import and export of U.S.-based
technologies and approaches including legal ones. Our discussion of the role of large law
firms draws especially on “The Confrontation Between the Big Five and Big Law: Turf Battles
and Ethical Debates as Contests for Professional Credibility,” 29 Law & Social Inquiry 615-38
(2004).
The chapter is also based on work in progress that focuses more specifically on the rise of
the Foreign Policy Establishment and the role of law in U.S. colonial ventures, especially in the
Philippines. These different research projects share an approach that links domestic political and
economic developments to those that take place internationally. “Palace wars” for control over
the national state are often fought on international terrain. Our exploration of the rise, decline,
and revival of the Foreign Policy Establishment shows how they used their expertise and
contacts in foreign affairs to build their position within the United States.
The approach in this chapter comes from the sociology of the late Pierre Bourdieu,
succinctly explained in Pierre Bourdieu and Loic Wacquant, An Invitation to Reflexive Sociology
(University of Chicago Press 1992). It does not focus on motives and ideologies, but rather on
the strategies of particular groups, most notably the Foreign Policy Establishment. Accordingly,
“strategy” refers to activities shaped by fields of practice and not necessarily to self-conscious
activities with any particular instrumental design such as building an empire or becoming a
foreign policy establishment. The approach also emphasizes that the role of law in the United
States and elsewhere is always contested by competing forms of authority – including other
disciplinary approaches, such as economics. This kind of approach is developed also in
Christopher L. Tomlins, "Law's Disciplinary Encounters: A Historical Narrative," 34 Law &
56
Society Review 911 (2000).
The literature that informs this chapter can be divided into four broad categories. The first
focuses on the late 19th and early 20th centuries and the early history of the lawyers who became
the FPE. The setting for that development is chronicled in Swen Beckert, The Monied
Metropolis: New York City and the Consolidation of the American Bourgeoisie (Cambridge
University Press, 2001), which depicts the world of lawyers and business. The work on the legal
profession of that time owes a major debt to Robert Gordon, who develops the notion of elite
lawyer “schizophrenia.” His approach is developed in "The Ideal and the Actual in the Law:
Fantasies and Practices of New York City Lawyers, 1870-1910" in Gerald Gawalt ed. The New
High Priests: Lawyers in Post-Civil War America (Greenwood Press 1984). We employ the term
but tend to see both the service to clients and the public service as part of one strategy that serves
both lawyers and clients. Another helpful examination of the bar at the turn of the century is
Michael J. Powell, From Patrician to Professional Elite: The Transformation of the New York
City Bar Association (Russell Sage Foundation 1988). The mix of activities is well apparent in
Nancy Lisagor and Frank Lipsius. A Law Unto Itself : The Untold Story of the Law Firm
Sullivan & Cromwell (Morrow 1988). The foreign policy that emerged in full force in the
Philippines is portrayed in Stanley Karnow, In Our Image: America’s Empire in the Philippines
(Ballantine Books 1989). The mix of idealism and realism is seen theoretically in Martin Sklar,
The United States as a Developing Country (Cambridge University Press 1992) and in practical
terms in the memoir of George A. Malcolm, American Colonial Careerist (Christopher
Publishing House 1957).
The second focuses on the institutions created around this time and their activities over
the course of the century – in particular, philanthropic foundations and the Council on Foreign
Relations (CFR) as well as related organizations such as the American Society for International
Law and the American Law Institute. The history of the CFR is given generally in Peter Grose,
Continuing the Inquiry : The Council on Foreign Relations from 1921 to 1996. Council of
Foreign Relations Press (Council of Foreign Relations 1996). Helpful examinations of these
institutions and the role of the Foreign Policy Establishment within them include Harold Berman,
The Ideology of Philanthropy: The Influence of the Carnegie, Ford, and Rockefeller Foundations
on American Foreign Policy. (Syracuse University of New York Press 1983); Ellen Condliffe
Legemann, The Politics of Knowledge: The Carnegie Corporation, Philanthropy, and Public
Policy (University of Chicago Press 1989); Leonard Silk and Mark Silk, The American
Establishment (Basic Books 1980); Judith Sklar, ed., Trilateralism, the Trilateral Commission,
and Elite Planning for World Management (South End Press 1980).
The third literature is biographical, focusing either on individuals or close-knot groups
whose activities span decades. Of particular interest are Kai Bird, The Chairman : John J.
McCloy, the Making of the American Establishment (Simon and Schuster 1992); Kai Bird, The
Color of Truth: McGeorge Bundy and William Bundy, Brothers in Arms (Simon & Schuster
1998) William H. Harbaugh, Lawyers’ Lawyer: The Life of John W. Davis (University Press of
Virginia 1990). Geoffrey Hodgson, The Colonel: The Life and Wars of Henry Stimson (Alfred
A. Knopf 1990); Walter Isaacson and Evan Thomas, The Wise Men: Six Friends and the World
They Made (Simon and Schuster 1986). Geoffrey Kabaservice, Kingman Brewster, His Circle,
and the Rise of the Liberal Establishment (Henry Holt and Co. 2004); Ralph Eldin Minger,
William Howard Taft and United States Foreign Policy: The Apprenticeship Years 1900-1908
(University of Ilinois Press 1975). Warren Zimmerman, First Great Triumph: How Five Great
57
Americans Made Their Country a World Power (Farrar, Strauss, and Giroux 2002).
The fourth body of literature chronicles the developments in human rights and in trade
law. The human rights literature is especially rich, including Ann Marie Clark, Diplomacy of
Conscience: Amnesty International and Changing Human Rights Norms (Princeton University
Press 2001); William Korey, NGOs and the Universal Declaration of Human Rights: A Curious
Grapevine (St. Martin’s Press 1998); William Korey The Promises We Keep: Human Rights, the
Helsinki Process, and American Foreign Policy (St. Martin’s Press 1993); Jonathan Power, Like
Water on Stone: The Story of Amnesty International (Northeastern University Press 2001);
Howard Tolley, Jr.,The International Commission of Jurists: Global Advocates for Human
Rights (University of Pennsylvania Press 1994). Biographies of major participants here are also
very useful, including Jeri Laber, The Courage of Strangers: Coming of Age with the Human
Rights Movement (New York: Public Affairs 2002) and Aryeh Neier, Taking Liberties: Four
Decades in the Struggle for Rights (Public Affairs 2003). A good discussion of how human
rights became institutionalized is Tamar Jacoby, “The Reagan Turnaround in Human Rights,”
Foreign Affairs 64:1071-72 (1986). On matters of trade, we have relied heavily on Steve Dryden,
The Trade Warriers: USTR and the American Crusade for Free Trade (Oxford University Press
1995). Recent developments in trade law are shown persuasively in Peter Drahos and John
Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (The New Press
2002). The quotations that are not specifically referenced in the text are provided below:
Kingman Brewster’s comment about “on to law school” comes from Kaboservice and Vance
from Kaboservice, p. 99, and the quote about Cyrus Vance’s reasons for moving into corporate
law are from Kaboservice at about p. 306.The first quotes describing William Howard Taft’s
mission in the Philippines come from Minger, p.2., while the quotes about building the
Philppines in the U.S. image and holding the Philippines for the benefit of the Filipinos come
from Karnow, p. 197. The quote about the CFR and its attack on isolationism comes from
Hodgson, p.385. The quote about the anti-communist threat as a source of the power of the
Establishment comes from the Silks, p. 200. McCloy’s statement about recruiting from the CFR
is from the same source, p. 202. Bird’s statement about McCloy and the U.S. establishment is
from Bird’s biography of McCloy, p. 18. The description of McCloy’s positions is from the same
source at pp. 18-20. Kabaservice’s comment about Brewster’s project at Yale is in Kabaservice,
p. 289. The statement from the founders of the International Commission of Jurists that they
feared the other side in the Cold War had “stolen the great words” comes from Tolley, p. 29, and
the quote on the new approach of the ICJ is from the same source, p. 51. The quote that human
rights was a “moral mask” for trilateralism is from Sklar, p. 29. Dryden, p. 37, provides the quote
from Heinz about his mistreatment by the State Department. The description of the approach of
George Ball is from Dryden, p. 42, and the opinion of William Eberle and Harold Malmgren is
also from Dryden, p. 165. Dryden, p. 344, provides the description of the boom for alumni of the
U.S. Trade Representative’s office.
1Geoffrey Kabaservice, Kingman Brewster, His Circle, and the Rise of the Liberal
Establishment (Henry Holt and Co. 2004) p. 99.
58
2 Id. at 306.
3 Ralph Eldin Minger, William Howard Taft and United States Foreign Policy: The
Apprenticeship Years 1900-1908 (University of Ilinois Press 1975), at 2.
4Stanley Karnow, In Our Image: America’s Empire in the Philippines (Ballantine Books
1989) p. 170. According to Karnow, Inspired by a sense of moral obligation, they [the U.S.]
believed it to be their responsibility to bestow the spiritual and material blessings of their
exceptional society on the new possession as though providence had appointed them to be its
savior. So, during its half-century in the archipelago, the United States refused to be labeled a
colonial power and even expunged the word colonial from its official vocabulary p. 197.
5Id.
6George A. Malcolm, American Colonial Careerist (Christopher Publishing House 1957)
p. 23.
7Id. at 98.
8 Geoffrey Hodgson, The Colonel: The Life and Wars of Henry Stimson (Alfred A. Knopf
1990), at 56.
9Id. at 385.
10 Leonard Silk and Mark Silk, The American Establishment (Basic Books 1980) at 200.
11Id. 202.
12Kai Bird, The Chairman : John J. Mccloy, the Making of the American Establishment
(Simon and Schuster 1992), p. 18.
13 Id. At 18-20.
14 Kabaservice, supra note .
15 Id. at 289.
16Howard Tolley, Jr.,The International Commission of Jurists: Global Advocates for
Human Rights. University of Pennsylvania Press 1994), p. 29.
17Id at 51.
18Louis Sohn and Thomas Buergenthal, eds., International Protection of Human Rights
(Bobbs-Merrill 1973).
19Richard Lillich and Frank E. Newman, International Human Rights: Problems of Law
and Policy (Little Brown 1979).
20Interview with member of Congress at the time.
21Foreign Assistance Act of 1973, Section 32.
22Judith Sklar, ed., Trilateralism, the Trilateral Commission, and Elite Planning for
World Management (South End Press 1980), p. 29.
23Interview with early leader of Human Rights Watch.
24Tamar Jacoby, :The Reagan Turnaround in Human Rights,” Foreign Affairs 64:1071-72
(1986).
25Steve Dryden, The Trade Warriers: USTR and the American Crusade for Free Trade
(Oxford University Press 1995) p. 37.
59
26Id. at 42.
27 Id at 165.
28Id. at 344.
29Trade interview #1, p.4.
30 Id. at 11.
31 Trade interview #2.
32Trade interview #3, p.2.
33 Trade interview #4, p. 5.
34 Id.
35 Id.
36Trade interview #5, p. 13.
37Wheres the lawyer? The Economist, March 18, 2004.
... Commentators have observed that parties are increasingly likely to select as arbitrators 'technocrats' with arbitration experience or, at least, litigation experience in domestic (Anglo-American) settings. 221 Such individuals are favoured for appointments because they are perceived to be most-equipped to act 'as managers of dispute resolution processes'. 222 Many commentators have argued that these trends have resulted in the 'Americanisation' of international arbitration, 223 or at least has produced a situation in which arbitration has become 'deeply rooted (predominantly) in the common law legal tradition'. ...
Article
Document production, and with it e-discovery, presents unique opportunities but also challenges for parties and tribunals seeking fair, efficient and effective investor-state arbitration proceedings. Despite the prevalence of electronically stored information and the potential utility of technology-assisted review techniques, e-discovery procedures in investor-state arbitration are relatively underdeveloped. Applicable procedural rules and guidelines are largely silent as to the mechanics of e-discovery. Analysis of investor-state arbitration decisions indicates a further reticence on the part of parties and investor-state tribunals to squarely address issues of e-discovery proactively. This means that the use, selection and scope of e-discovery are left almost entirely to parties and tribunals to navigate on a case-by-case and largely ad hoc basis. Given the likely increasing relevance of e-discovery in international investor-state arbitration, this article considers how parties and tribunals might be supported to become better equipped to accommodate e-discovery appropriately in investor-state arbitration.
... W szczególności niezwykle istotną funkcję w regulacji stosunków na rynkach globalnych pełni dziś system bardzo kosztownej dla mniejszych podmiotów ochrony praw patentowych, który pozwala zachowywać monopolistyczną kontrolę rynków. Duża część korporacji wydaje znacznie więcej środków na działy prawne niż badawcze, a jak twierdzą Yves Dezalay i Bryant G. Garth (2008), "międzynarodówka prawnicza" stała się dzięki temu jedną z najbogatszych i najbardziej wpływowych elit wielkiego biznesu. ...
Article
Full-text available
Artykuł przedstawia analizę genezy i funkcji szerokiego spektrum dyskursów modernizacyjnych odnoszących się do takich pojęć, jak „gospodarka oparta na wiedzy/gospodarka napędzana wiedzą”, „gospodarka innowacyjna” czy też „społeczeństwo informacyjne/innowacyjne”. Odwołując się do metod krytycznej analizy dyskursu, pokazuje podstawowe mechanizmy legitymizacji nierówności społecznych i reprodukcji hierarchii we współczesnym świecie przy użyciu wspomnianych dyskursów nazywanych tu – ze względu na silny komponent wizji zmian społeczno-kulturowych – „dyskursami nowego społeczeństwa”. W artykule szczególnie podkreślono rolę omawianych dyskursów w legitymizowaniu zależności krajów peryferyjnych i półperyferyjnych w rozumieniu teorii systemu światowego Wallersteina.
Article
It is now timely to examine the important area of the 1980s reform of petroleum resource taxation, about which there is scant analysis, compared to other Australian Labor Party reform initiatives from that era. The questions concern the roles of Paul Keating, as Treasurer and Peter Walsh, as Minister for Resources and Energy, in petroleum taxation reform. Bourdieu’s social practice theory is used to analyse the consultative process of resource rent tax policy to legislation, which culminated in the Petroleum Resource Rent Tax Assessment Act 1987. This Act introduced a tax on profits, over a specified threshold, generated from the sale of petroleum commodities. To revisit the story of the 1980s petroleum tax reform, this article draws on primary archival documents, predominantly from Craig Emerson’s private papers that cover his time (in 1984) with the Office of the Minister of Resources and Energy. Unique insights are obtained into the consultative process via his hand-written files and personal observations. The findings indicate that although Paul Keating, Bob Hawke and advisors such as Ross Garnaut played important roles, Peter Walsh should be given the most credit for progressing the petroleum resource tax policy in 1984, that later resulted in legislation in 1987.
Article
This paper analyses the production and international diffusion of different forms of State expertise, such as economics, from a threefold perspective: hegemonic strategies structured around the Cold War, professional rivalries between lawyers and economists within the field of state power and the internationalisation of the academic circuits for the reproduction of national elites. In order to understand the relatively low (or delayed) introduction of neo-liberal paradigm in Asia, it starts by highlighting the authoritarian genesis of these new fields of economic expertise, as an instrument for the developmental policies launched by the Cold War dictatures, such as Suharto in Indonesia or Marcos in the Philippinnes. Then, by focusing on the cases of India and South Corea, it analyses how the processes of institutionnalisation and consolidation of these new professional fields was structured around an international division of scientific labour, in which the elite US campuses control both the production of theoretical innovation and the academic networks for the reproduction of the elites of the periphery.
Article
When the Universal Declaration of Human Rights was adopted 50 years ago, Eleanor Roosevelt, its principal architect, predicted that a 'curious grapevine' would carry its message behind barbed wire and stone walls. This book tells the extraordinary story of how NGOs became the 'grapevine' she anticipated - sharpening our awareness about the violations of human rights, 'shaming' its most notorious abusers and creating the international mechanisms to bring about implementation of the Declaration. Korey traces how NGO's laid the groundwork for the destruction of the Soviet empire, as well as of the apartheid system in South Africa, and established the principle of accountability for crimes against humanity. The notion of human rights has progressed from being a marginal part of international relations a half century ago to stand today as a critical element in diplomatic discourse and this book shows that it is the NGOs that have placed human rights at the centre of humankind's present and future agenda.