Author Archive for
David Zaring

Linos Book Symposium: Comments by David Zaring

by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania's Wharton School]

Why does almost every country in the developed world have maternity leave, or government supported retirement programs? Katerina Linos knows the – always surprising to me, but repeatedly tested by political scientists – fact that countries adopt the policies of their similar, often nearby, neighbors. In The Democratic Foundations Of Policy Diffusion, she argues that there is good news underlying this trend of cross-border adoption. Rather than being a function of bureaucrats forcing, say Swiss health care models down the throats of American citizens, she shows that, across countries, and even among Americans themselves, 1) citizens prefer policies that are proposed with evidence of foreign and international organization endorsement; and 2) politicians invoke this sort of evidence when trying to mobilize support for their programs.

This might strike your average American, who, if she is anything like me, is hardly maximally cosmopolitan, as implausible. How many voters, let alone the median American voters political scientists think about the most, care about how they do things in Canada, or can be bothered to find out? Will they really choose the suite of policies proposed by the leader who does the best job invoking the recommendations of the United Nations on the campaign trail?

Linos makes a persuasive case that even in America her theory about policy diffusion holds true, partly because her argument proceeds not just from the evidence she gathers, but from two bedrock principles of social science. The first is related to that median voter proposition. Political scientists have become very skeptical of great man histories of the world. Americans, on this reading, are unlikely to support radical reform of the health care because the president really wanted them to do it, or because particularly persuasive norm entrepreneurs, be they in academia, the American Medical Association, or in European health agencies, assured elites that it would be a good idea. But that is how policy diffusion would work if it wasn’t supported by democratic foundations. Paired with evidence of the invocation of foreign practices in American politics, why wouldn’t we assume that rational American voters choose to do things the French way because they wanted to do so?

The second bedrock social science proposition at work here, I think, turns on competition. Social scientists often posit the existence of markets in everything. Voters will always test the job their government is doing for them against the alternatives. Sometimes, those alternatives come from the other party. But isn’t it plausible to think that they might be interested in the alternatives provided in other countries as well?

The plausibility of the story went a long way towards convincing me, but there are some other implications and cavils worth noting: (more…)

Book Discussion Informal International Lawmaking: A comment by David Zaring

by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania's Wharton School]

Pauwelyn, Wessel, and Wouter’s excellent book, which in turn marks the fruition of a project on informal international lawmaking that they dub IN-LAW, is pretty good on the theory end of things, which is what this post will look at, and also critique. Organizationally, the editors cracked the whip creditably – each chapter is organized, features a takeaway, and follows well. But should you read it?

PWW develop both a definition and a metric for evaluating informal international lawmaking. Their defintion – figuring out whether that international phenomenon is IN-LAW or not – looks to its output, process and actors. If the output (non-treaties), process (non-diplomacy) or actors (non-states) are different from those in conventional international law then, PWW argue, you are in the world of IN-LAW. And that world includes a large number of public governance efforts ranging from technical regulation to much more political work like that done by APEC and the G20.

The metric turns on evaluating IN-LAW on two axes. The first turns on whether it is accountable, and therefore legitimate, the second on whether it is effective (and possibly legitimizable through that metric). Conceptually, it’s really quite a persuasive take. The book is an efficient blend of the descriptive and the normative. Nonetheless, some questions:

IN-LAW isn’t a bad rubric, but policing the borders of these kinds of categorization exercises is irresistible. Is it really so valuable to take heads of state exercises like APEC and the G20 and try to jam them into the same space as much more technical exercises on, for example, the Global Strategy on Diet or the Internet Engineering Task Force? PWW do that. But one is politically legitimate from its first moment. The other stakes its legitimation claims on its expertise, to say nothing of the differences in media attention, significance, and scope. Informal, yes, they both are. But I’d like to see an even better reason to group them.

This is a book written by legal scholars, and legal scholars love to talk about legitimacy. But is it such a raison d’etre if your goal is to understand and work with international law? What, for example, if IN-LAW is not legitimate? We’d still have a phenomenon worthy of description. Indeed, the efforts the authors make to legitimize IN-LAW – domestic accountability, various other metrics – is completely different from the old legitimation technique, which turned on state consent. If legitimation is your grail, why change the standards by which legitimation is set?

There is only a little of the “why now?” in this book, but why IN-LAW now? International governance has had informal antecedents for a long time, but in both economics, and especially politics, has worked through pretty formal channels for decades. Now it isn’t, and laying the development at the feet of globalization seems a little imprecise. I’ll look forward to further research on this question.

For those particularly exercised by the above, here’s an overview of the chapters in the conceptual section:

Ayelet Berman and Ramses Wessel observe that accountability in IN-LAW comes from the accountability of the constituents to it, the domestic agencies or political actors who participate in IN-LAW processes. They consider whether IN-LAW entities ought to get international legal personhood and speculate that it might not enhance accountability.

Liliana Andonova and Manfred Elsig apply a more political scientific lens to view IN-LAW as a principal-agent problem – and solution to the principal-agent problems posed by more formal international organization or diplomats.

Stefan Voigt takes an interesting look at a likely incomplete data set of United States informal agreements generated by the executive’s reporting under the Case Act. The data shows just how often the traditional foreign affairs establishment is resorting to mechanisms other than treaties – the leading Case Act informal agreement producers are the White House, the military, and the State Department. The agreements these institutions make are overwhelmingly bilateral, a fifth of which concern the wealthy west (and another fifth of which concern Latin America, oddly).

Philipp Dann and Marie Von Engelhardt compare IN-LAW to other schools designed to get at the bottom of the proliferation of non-formal international law among states; that is, the Global Administrative Law Project, which I associate with NYU and Rome, and the International Public Authority Project championed by a group in Heidelberg.

PWW again take up the legitimacy question in the conclusion to the work. They argue that legitimacy needs to be assessed beyond the metric of state consent and that IN-LAW’s claim to legitimacy substitutes a domestic legitimation project for the formalities of public international law. They argue that ideally that legitimation would involve a “thick stakeholder consensus”. They also observe that IN-LAW in particular has an outsider problem, in that many of the participants in these informal organizations are elite, hard to track, and self-absorbed in a way that has real consequences for the developing world and the less technically inclined affected by IN-LAW, but unable to police it.

All in all, the book is a pleasure, which is not always easy to achieve with an edited volume. Those with even passing interests in international institutions will benefit from contemplation of the conceptual approaches set forth here.

Berman Book Discussion: International Law That Actually Matters

by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania's Wharton School]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

Paul Berman is rethinking the global legal system with reference to both the plurality and the narrowness of modern community. That is, although we are subjects of a state, international law is driven often by the relationships that have little to do with borders or the usual blood or soil delimitations of state citizenship. These relationships – the linkages that create Berman’s cosmopolitanism – need not be broad ones. Berman’s international law can be a technocratic exercise affected by various small communities of the not always predictable interests that care about it. Big innovations in criminal law might be driven not by state interest, but by the elites and NGOs who believe in internationalizing it, and the reactions of the small number of officials who then must evaluate whether they need to worry about what international criminal law has become. The process of delineating interests that matter can have larger implications when conflicts and the exercise of jurisdiction turn a philosophical exercise by those who care into something on which the world’s litigants may find that their interests turn.

There are many things that can be said about the book, almost all of them laudatory, so I will limit myself to talking about the form of international regulation that I know best, and how I see it fitting into Berman’s cosmopolitan vision. Financial regulation is in many ways a case study for cosmopolitanism. It features cooperation across international boundaries. But it is not traditional international law. And it would be inaccurate to understand what is going on in international financial regulation as a mere clash between the domestic interests of states (though admittedly, political scientists such as David Singer and Abe Newman believe it to be about exactly that). In my view, what international financial regulation tells us is that cooperation among elites and among Haasian-style epistemic communities can create quite a disciplined legal system that, while surely imperfect, is a good representation of international law that actually matters.

In fact, international financial regulation in many ways represents the very cosmopolitanism that Berman praises, where international borders are porous, where communities of fate, be they bankers, regulators or investors, cross boundaries and in many ways have more in common with each other than they do with their fellow citizens in Moline or Leipzig. To be sure, there is more than just a we feeling in international finance. There are standards, created by a committee of agencies, that result in winners and losers. Still, the fact that this sort of international obligation creator exists suggests that instead of the old forms of treaty or customary law there are other forms of international obligations that might better be understood as transnational relationships and governance. They really matter, as political scientists like Bob Keohane and Joseph Nye recognized, and as legal scholars following Anne-Marie Slaughter have gone on to develop.

I think Berman’s vision of cosmopolitanism is one way to think about these institutions. And since I believe that the institutions are drivers of international obligations, Berman’s vision, in taking account of these institutions thus does more for the real world of international law, and the real work of international lawyers than do many other broad visions about how international obligations need to be understood.

Response to Transnational Regulatory Networks and Their Limits

by David Zaring

It’s a pleasure to be able to comment on Pierre-Hugues Verdier’s excellent, if critical, article on networks. I respond as a defender: in my view, networks have notched some impressive achievements, and at their best, have become primary vehicles of international governance. From bank capital adequacy to mutual recognition on drug regulation to accounting standards, their list of achievements is, in my view, long.

Pierre disagrees. His claim, at bottom, is this: networks are basically ignorable, and because of this, they are frequently ineffective. They are ignorable because they cannot force their constituents to act in unpalatable ways, because of their informality, independence, and inability to distribute benefits and burdens across a variety of issue areas.

Pierre thus challenges networks on what, I think, their defenders have often argued are their signal advantage: we claim networks can offer meaningful international governance, often where treaties and courts cannot. His argument is powerful, and his article is a stimulating and elegant read, but, in the end, I do not think that we should reject the network form wholesale. I would defend networks by taking their measure comparatively, rather than on some absolute scale, by disputing the advantage of the formal or politicized grand bargain over the network, and by defending the value of institutions that succeed in resolving coordination games.

First: if networks fail, do they fail more or less often than other international institutions? Pierre proves his effectiveness point with case studies, and case studies can only tell part of the story. The Basel Committee enjoyed compliance early, he acknowledges, but late in its life the United States began to become recalcitrant, leading to a reformulation of the committee’s capital accords that promised to benefit American, and possibly European, banks more than any other. I’d emphasize the early achievements more than the later disagreements, but I’d also be inclined to ask about the other networks out there, of human rights lawyers doing more, perhaps, than the ICC to create global criminal law standards. And just as treaties are sometimes observed in the breach, and international custom ignored, networks may not enjoy perfect compliance at all times. IOSCO is an example of coordination that appears to have stopped at coordination of enforcement, in Pierre’s account, and I would largely agree. But holding networks to a perfect compliance standard is holding them to an unrealistic one.

Second, what’s so great about grand bargains? The legal institutions that, at least purportedly, are most encompassing are institutions regularly faced with intimations of desuetude. The United Nations, the International Court of Justice, the Law of the Sea Convention – all of these have signed up the many, and have lumbered along, ossified and frequently inactive because of it (the WTO is an exception). Networks offer less grand bargains – but that may be an advantage more than a problem, as I suggest below.

Third, what’s wrong with coordination? Many legal relationships are coordinative, in that both or all of the parties that participate in the relationship expect to benefit from it. Mutual benefit is the reason to enter any contract, but mutual benefit does not mean that contracts are failed legal instruments. Nor, as far as I know, do economists view specialist firms – firms that only produce one good, say – as less able to participate in contract than conglomerates that can trade wins in some contracts for losses in others. Specialized regulatory networks do coordinate, it is true, and they are not well-suited to trade, say, European antitrust standards for American accounting standards. But this does not mean that they cannot contribute coordination – indeed, their specialized expertise may mean that they are able to see coordination more easily than could, say, the UN, or diplomats at a US-EU summit.

Finally, for what it is worth, I think that few of the scholars who have written positively about networks are abject triumphalists. Anne-Marie Slaughter has said that networks will not replace states. Kal Raustiala has written about how networks can complement treaties, rather than replace them. I have written that networks may play the role of rulemakers in global administrative law, while other institutions will play the role of adjudicators. Indeed the only theorist who I associate with the networks-uber-alles position is David Mitrany, who wrote about the vast potential of technical coordination in the context of the failures of the League of Nations, and did so very long ago.

Network theorists should not champion their pet institution unreflectively, of course. Networks do not always work, and they do not work when we would most like them to work. The current financial crisis, for example, has unfolded with almost no international response by the Basel Committee and other economic regulators deemed to be the best, and probably the oldest and most established networks. Basel’s relative silence, IOSCO’s anodyne speeches and promises to study the matter further, and the lack of any serious response by the Financial Stability Forum, the putative network of financial regulatory networks, suggests that there are some things networks cannot do. And the primary role played by the G20 – really, a modern day Concert of Europe – in developing and coordinating what international regulatory response we have seen should give anyone pause about the primacy of law or law-like institutions in a world where political actors will continue to play a critical role.

But in the end, the problems of the network form means that perhaps it only deserves two cheers, rather than three. Pierre, I suspect, would give the network rather fewer kudos, and it is in this difference, partly of degree and partly of kind, where we ultimately disagree.

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

by David Zaring

[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).

Two Weeks of Memories

by David Zaring

DRAM chips and the puzzling persistence of extraterritoriality

by David Zaring

Kirgis on ASIL’s First Century

by David Zaring

Semi-Thematic Blogging: A Little More on Human Testing

by David Zaring

Making International Principles Domestic Law: the Legislative Version

by David Zaring

The Most Cited US Cases Related to International Law

by David Zaring

How to Spend Your Time

by David Zaring