June 2013

Linos Book Symposium: Response to Verdier, Cohen and Alford

[Katerina Linos is an Assistant Professor of Law at Berkeley Law] I am very pleased that Pierre Verdier, Harlan Cohen, and Roger Alford are offering the closing comments in the symposium on The Democratic Foundations of Policy Diffusion.  Of Pierre Verdier’s multiple contributions to the study of international networks and international economic law, I’ll single out his article “Transnational Regulatory Networks and their Limits,” as it is especially relevant to today’s discussion. In this piece, Pierre Verdier argues that Transnational Regulatory Networks may be ill-equipped to deal with the distributional conflict and defection risks that so often plague transnational cooperation. Harlan Cohen has written extensively about legal theory, legal history, constructivism, and fragmentation in international law. I’ll highlight his recent article “Finding International Law, Part II: Our Fragmenting Legal Community” as it contains the provocative claim that distinct legal communities are forming and creating deeply conflicting interpretations of international lawmaking. Among Roger Alford’s many contributions to international and comparative law, his article “Misusing International Sources to Interpret the Constitution” is particularly relevant today’s discussion, because of its fascinating analysis of the different actors who use foreign models to strengthen their arguments. These scholars’ posts raise three major questions:

• Can diffusion through democracy help solve issues like global warming, issues that involve significant externalities and interdependencies?
• What are the risks of diffusion through democracy?
• Can we compare judicial borrowing to legislative borrowing? And how does all this connect to yesterday’s decisions on same-sex marriage?

Linos Book Symposium: Comments by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad. I want to push Katerina a bit on the...

Linos Book Symposium: Comments by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law] As others have already written, The Democratic Foundations of Policy Diffusion, is an extraordinary achievement.  Katerina Linos has succeeded in writing a book that is both bold and meticulous, counterintuitive and utterly convincing.  Reading the book, one feels a sense of excitement that we’re truly learning something new.  There is much to learn from it (among others things, the value of her multi-method approach – a model for others), and it is certain to move the conversation in a variety of fields. Others have already discussed the rich substance of Linos’ study.  My thoughts and questions are on Linos’ conclusions and implications, both those in the chapter of the same title (Chapter 8) and those left unstated. My main concern is that Linos’ study may be more consequential than the final chapter suggests.  It might just be that she’s too humble, but I’m not sure Linos’ conclusion chapter does justice to the radical implications of her findings.  Take the first set of implications she identifies, those regarding the legitimacy of policy diffusion.  “The good news,” as David Zaring summarized, is that far from being imposed by unaccountable foreigners or technocrats, health and family policies are borrowed from abroad as a result of democratic politics.  As Linos writes on p. 181, “[b]y connecting references to foreign laws and international organization proposals to majoritarian values, this theory offers a direct response to criticisms of foreign laws and international organizations’ recommendations as undemocratic.” As Linos recognizes, diffusion through democracy comes with concerns of its own.  Because politicians draw only upon those models to which voters are likely to respond – models from nearby and wealthy states – the policies adopted may not be the best available for their state.  Linos suggests that the foreign models they borrow from may be good choices; various theories of optimal borrowing suggest that shared legal heritage and success on the ground are positive indicia of good policy fit.  But whether or not these policies are the best, the overall implication is that, suggested by politicians and ratified by voters, these policies are at least legitimate (or better, more legitimate than critics of borrowing recognize.) I’m less sure. 

Linos Book Symposium: Comments by Pierre-Hugues Verdier

[Pierre-Hugues Verdier is an Associate Professor of Law at the University of Virginia School of Law] Katerina Linos’s new book, The Democratic Foundations of Policy Diffusion, is one of the most important contributions to arise from the recent turn to empirical scholarship in international law and international relations.  Instead of following a deductive path from broad theoretical assumptions, the book carefully combines survey evidence, cross-country regression analysis and case studies to paint a coherent picture of policy diffusion through democracy in the fields of health and family policy.  Yet, this careful and inductive approach leads to a central theoretical contribution to the field.  From a descriptive perspective, the book shows that non-binding standards with minimal institutional support can contribute to significant domestic policy shifts in high-stakes areas, despite resistance by domestic interest groups.  From a normative perspective, its model of diffusion through democracy may solve a perennial and vexing paradox of global governance, by providing international policy coordination that is both effective and consistent with democratic accountability. However, while the book’s focus on the often neglected areas of health and family policy is innovative and welcome, it inevitably raises the question whether the mechanism it identifies applies to other areas of international law and policy coordination. As the book points out, the field of social policy is characterized by non-binding international models rather than binding agreements, with a few exceptions such as ILO conventions.  Nevertheless, the book suggests in several places that diffusion through democracy may apply much more broadly to other policy choices, and can inform longstanding general questions of institutional design such as the choice of hard law or soft law instruments.  Likewise, the book’s conclusion implies that the normative benefits of this mechanism in alleviating the democratic deficit of global governance also apply to other areas of international policymaking.  In this short contribution, I want to suggest two reasons for caution is assessing the broader potential implications of this mechanism.