Linos Book Symposium: Response to Larry Helfer and David Zaring

[Katerina Linos is an Assistant Professor of Law at Berkeley Law]

I am thrilled that Opinio Juris has chosen to host a symposium on The Democratic Foundations of Policy Diffusion, and has lined up an amazing group of international law scholars to comment on different parts of the book. Special thanks to An Hertogen, Roger Alford, and Peggy McGuinness for all of their work in putting together this symposium.

Today, I am honored to receive comments from Larry Helfer and David Zaring. Larry Helfer’s work on international legal theory, human rights, international organizations, and labor law has shaped a whole generation of younger scholars, including myself. David Zaring’s research on transnational expert networks, judicial citations to foreign decisions, the influence of non-binding norms, and the administrative state has transformed how I think about each of these areas.

Their comments invite debate on three big questions:

• What’s special about the diffusion of laws as compared to the diffusion of other ideas?
• What changes when international organizations (rather than foreign country governments) get involved in policy diffusion?
• What can we infer, and what can we not infer, from politicians’ campaign statements and legislative debates?

1) What’s special about the diffusion of laws as compared to the diffusion of other ideas?

As David Zaring notes, many ideas spread quickly – for example, neighbors often wear similar outfits and design similar kitchens. Yet legal transplants are special for at least two reasons. First, we often assume that different countries’ laws reflect distinctive historical trajectories, national values, and political compromises among domestic interest groups. Indeed, the laws I study, which regulate social insurance programs like pensions, health care, and family leave, consume about half the annual budget of rich country governments and often arise following fierce national debates. Foreign influences on domestic laws are striking in part because the stakes are so high.

Second, the process of law-making, and thus the process of legal transplantation, is distinctive. In representative democracies, voters don’t pick their preferred policies directly (as they might pick their favorite clothes), but instead elect politicians who then choose policies. I argue that the electoral process amplifies the influence of ideas from abroad. As in many principal-agent problems, the agents (the politicians) must persuade the principals (the voters) that they are not lazy and corrupt.  One way for politicians to send such signals and keep their jobs come election time is by campaigning for widely adopted international models. Politicians have incentives to follow international norms in order to signal to skeptical voters that their policies are not ill-thought out experiments, designed to enrich special interest groups, but rather mainstream, tried-and-true solutions.

2) What changes when international organizations (as opposed to foreign country governments) get involved in policy diffusion?

Larry Helfer helpfully notes that sometimes policy diffusion happens primarily through country-to-country exchanges, whereas at other times, international organizations get very involved in promoting a particular model. While international organizations rarely promote templates that no country has adopted, some international organizations promote policies that only a handful of their members have adopted, whereas others act only after a large majority of their members have made the same policy choice. My sense is that the early involvement of an international organization can dramatically speed up a policy cascade. This happens in part because international organizations can help transform an individual country’s choices into a global template, and global templates are harder to contest.

For example, the International Labour Organisation decided to promote maternity leave in 1919, after only a few countries had adopted similar domestic legislation. Many countries rushed to adopt this policy in the years following key ILO conventions in this area (see pp. 132-135). For advocates of a policy, the early involvement of an international organization thus has important benefits. That said, advocates might wonder whether the early promotion and widespread adoption of a particular policy alternative prevented more desirable policy alternatives from emerging. For example, many feminists celebrate the widespread adoption of parental leaves around the world, but lament the fact that these leaves are often limited to women, and are often mandatory. These features of maternity leave can be traced at least as far back as the 1919 ILO Maternity Leave Convention, and politicians still turn to ILO Conventions as a way to justify the obligatory nature of maternity leave (see p. 169). The involvement of international organizations (or any other outsiders) could also raise (at least mild) questions about democracy, as David Zaring suggests. I set this question aside for now, as it is a core theme of the book that I expect other commentators will focus on later this week.

3) What can we infer, and what can we not infer, from politicians’ campaign statements and legislative debates?

How do we assess politicians’ statements as empirical evidence? My core claim is that laws spread around the world not only because of private discussions among technocratic elites, but also through elections and other very public debates. Politicians’ campaign promises and other speeches are very helpful to indicate how politicians choose to frame key issues, and what information they want to highlight to voters. I find that politicians of diverse political persuasions in several countries chose to highlight the policy choices of large, rich, and proximate countries, and to try to persuade voters that they were following dominant international models.

That said, as David Zaring suggests, politicians might talk about France in public, but might vote for a law principally because they were promised a road-building project. To assess the influence of international models relative to the host of domestic considerations that might drive a country to adopt a law, I use regression models that allow for careful controls. The historical case study materials are also useful in this respect.

These historical materials can also some light on a question Larry Helfer asks, about the role foreign models play at different stages of the policy-making process.  I address this question only indirectly in the book, but Chapter 7, on the history of family policy in Greece and Spain over the course of the 20^th century, allows me to give a partial answer. Greece and Spain transitioned from democracy to dictatorship (and back again) many times in the course of the 20^th century. The major health and family reforms the book covers were adopted soon after the latest transition to democracy, in the late 1970s and early 1980s. I also find in periods of democracy, but not in periods of autocracy, Greece and Spain adopted very diverse ILO conventions rapidly (see pp. 158-159). This is suggests that the ILO had some influence on the agendas of these countries’ parliaments, at least in periods of democracy.

Thank you again to David Zaring and Larry Helfer for extremely helpful comments and thought-provoking questions. Their posts contain a lot of rich material that I hope we will further discuss in the coming days.