Empirical Research And International Economic Law: A Comment on Susan Franck’s Essay

[David Zaring is Assistant Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania]

Susan Franck’s essay makes the case for more empirical research in international economic law; a project that she has pursued – I might venture to say that she owns an important part of the field, given the unique and comprehensive data on investment arbitrations that she has collected and continues to analyze – in her other work. It is worth noting both how precise and how important Susan’s recommendations are. First, when I think about empirical research in international economic relations more generally (and here I should clear my throat apologetically – I’m not an empirical scholar except in a rather mild sense, but primarily a reader of some of that work), I think of the big picture claims made by some applied economists – Andrew Rose’s claim that membership in the WTO doesn’t lead to growth, for example, and the endless debates over whether NAFTA or bilateral investment treaties have been good or bad for their signatories. Susan cites a number of examples of these in her essay.

What is underdeveloped is empirical research on the law part of international economic law, specifically the litigation part. There is so much we don’t know about what happens when investments disputes are subject to arbitrations, but that hasn’t stopped people like Bolivia’s president Evo Morales making consequential decisions based on their priors about what the process will mean.

So that’s why I say Susan’s empirical claims are precise – she thinks we need a new perspective on what happens in actual litigation, which is arguably both the signal offer of an investment or trade treaty and its most lawyerly manifestation. And it makes sense to recommend that assumptions like those of Morales be tested.

I will also commend her essay for giving us a bit of an intellectual history of the place of empiricism in international law … which I think she would say comes largely from the increasing empiricism of international relations scholarship and the increasing popularity of ELS. She also offers outline of one way to pursue empirics in international legal research, which is all to the good.

This is already a long post, but I’d like to do three more things in it: 1. Note that there increasingly is empiricism in international legal scholarship, 2. Urge a bit of caution on the part of would-be empiricists, and 3. Speculate about some empirical research that might be particularly worth reading in the future.

1. The sort of work that Susan urges is, I agree, unnecessarily rare, but it is not déclassé. It has a worthy past and increasingly vibrant future. Robert Hudec, after all, kept track of WTO decisions, and Simon Lester and Kara Leitner continue to build on his work. John Yoo and Eric Posner have made empirical claims about effective international tribunals that occasioned a useful response by Anne-Marie Slaughter and Larry Helfer. And so on.

2. Cutting edge empirical work is technical – increasingly so – and takes training. Disciplinary barriers are often higher than you think. Pick up a copy of the American Political Science Review and Quarterly Journal of Economics and give them a casual read if you think you might disagree. I am, as I have said, no empiricist, but my sense is that legal scholars are often best-served by co-authoring if they feel the urge to do empirical work and by training themselves to read empirical papers (no easy task!) as a prelude to pursuing empirical work.

3. A couple of predictions about the future. Careful event studies might be useful evidence in determining whether and which international legal institutions matter. Ron Wright and Marc Miller have noted the growing prevalence of content analyses in legal research, and, done well, it seems to me that they are a natural complement to doctrinal work (it’s often hard getting enough observations to make that useful, though).