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?

1) Can diffusion through democracy help solve issues like global warming, issues that involve significant externalities and interdependencies?

Both Pierre Verdier and Harlan Cohen highlight that the laws I study in the book – health, family and employment laws – have major and direct consequences for a state’s own residents, but more indirect consequences for other states’ residents. Laws protecting human rights also have primarily domestic consequences, but laws in many other areas – including trade, war, and the environment – have major consequences both at home and abroad. Can diffusion through democracy suffice to solve problems involving global public goods – issues like climate change or world piece?

Well, not by itself, of course; the traditional tools of international law have a major role to play in resolving these issues. But diffusion through democracy is not intended to displace, but work in parallel with the many other tools available for international cooperation. Mechanisms related to norm diffusion may be already making a difference in resolving these stubborn problems. For example, while global negotiations on climate change are stalled, Europeans have developed their own high regulatory standards. In turn, Europe’s regulations have major impacts globally, in part because of Europe’s market power, as Anu Bradford elegantly explains in “The Brussels Effect.” But another reason for Europe’s significant influence is that many other jurisdictions, including several U.S. states, end up copying European environmental regulations, as Joanne Scott explains in “From Brussels with Love.” The importance for norm diffusion in the development of the law of war is made powerfully by Martha Finnemore in The Culture of National Security and The Purpose of Intervention. That said, as Harlan Cohen suggests, we do not yet fully understand well how distinct mechanisms of international cooperation intersect, and this is a major challenge for future scholarship.

2) What are the risks of diffusion through democracy?

Diffusion through democracy might help address the criticism that references to international and foreign law are inherently undemocratic, but does it raise its own set of problems? Harlan Cohen is concerned that electorates make critical decisions with very little information at their disposal. Pierre Verdier worries that interest groups can exploit the process I describe: they can formulate international standards precisely for the purpose of legitimizing their own narrow agendas domestically.

These are both critical issues that touch upon a key challenge for democratic decision-making: how to combine the technical knowledge and sophistication of an expert with the instincts, preferences, or aspirations of the electorate. This question has been the focus of extensive debates in domestic administrative law, where expertise is thought as a key justification for delegation to independent agencies. In a world where every country operates in isolation, voters and policymakers considering an agency’s policies can only rely on substantive debates about the merits. Once a country opens up to foreign influences, voters and policymakers have an additional piece of information: the fact that an international organization has endorsed this policy, or that a foreign country has adopted it. This additional info might help alleviate somewhat the concerns arising from entrusting important decisions to unsophisticated electorates.

Pierre Verdier’s comments center on a different aspect of the expertise/responsiveness debate in democratic decision-making: the ability of industry insiders to shape policy outcomes by providing information that favors their perspective, and more generally, lobby policymakers. Industry groups can acquire significant benefits by transferring a policy debate to the international level; for example, only the biggest firms can afford to be represented in international fora, and can thus promote rules that give them an edge over their smaller competitors. This type of international lobbying requires resources and organization that only few players can master, and would be more likely to occur when important business interests are at stake. In fact, the well-known lobbying efforts by various industry groups on international organizations are an indication that the industry understands very well the diffusion dynamic and the importance of winning the policy battle at the international level. The greater the influence of narrow domestic interest groups on the final formulation of international norms, the more concerned we should be about these norms, as Pierre Verdier suggests.

3)    Can we compare judicial borrowing to legislative borrowing? And how does all this connect to yesterday’s decisions on same-sex marriage?

Roger Alford invites me to consider how references to foreign laws made by elected officials might resemble or differ from references to foreign laws made by judges. He asks both about the controversial references to foreign law in Lawrence v. Texas and Roper v. Simmons, and about yesterday’s decision on same sex-marriage, United States v. Windsor.

The role of an unelected judiciary in a democracy is a difficult one theoretically and empirically. For me the key challenge is that the US Supreme Court seems to care deeply about public opinion, and also has the potential to lead public opinion, and persuade the American public that particular policies are consistent or inconsistent with deeply held constitutional values. I am trying to shed light on this complicated issue empirically in a new project with Kim Twist. One way to simplify the issue somewhat is to read the references to foreign law in both Roper and Lawrence as Justice Kennedy’s efforts to persuade the American public about the wisdom of his conclusions, conclusions that some segment of the American public would have otherwise found very controversial. This reading might suggest that both Justices and politicians are using foreign law in similar ways. I discuss this issue further in my piece “Legislative Borrowing.”

Roger Alford also invited me to consider whether the Court might have retreated from references to foreign law, as evidenced by yesterday’s decision in Windsor. Prominent international lawyers including Ryan Goodman and Larry Helfer encouraged the Court to strike down DOMA by pointing to foreign and international practice. But as Peter Spiro noted in an earlier Opinio Juris post, it is even more interesting that opponents of same-sex marriage also wrote an amicus brief highlighting the foreign and international law dimensions of the issue. And references to “the traditions of other nations” ended up in the Windsor opinion – but they came in Justice Alito’s dissent. To me the use of foreign law to advance conservative causes suggests that perhaps these references are becoming more acceptable and mainstream to a broad set of people.

On this last day of the symposium on The Democratic Foundations of International Law, I wanted to thank the Opinio Juris editors once more for offering me this tremendous opportunity to discuss many ideas about how laws spread around the world, and the role of international bodies in the diffusion process. I am very grateful to David Zaring, Larry Helfer, Eric Posner, Ryan Goodman, Anu Bradford, Rachel Brewster, Pierre Verdier, Harlan Cohen and Roger Alford for their generous and thought-provoking commentary.