In association with the International Commission of Jurists

Author: Katerina Linos

27 Jun

[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?
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26 Jun

[Katerina Linos is an Assistant Professor of Law at Berkeley Law] I am thrilled to receive comments from Anu Bradford and Rachel Brewster on The Democratic Foundations of Policy Diffusion! Anu Bradford’s contributions to European Union law, trade law, anti-trust law, and international regime theory are multiple and major, but I highlight her recent piece “The Brussels Effect,” as it connects well to today’s discussion. In “The Brussels Effect,” Bradford explains clearly why some jurisdictions are able to directly influence the choices of foreign firms and citizens through their market power while others are not. Rachel Brewster’s work on international legal theory, state reputation, trade law and climate change has greatly influenced my thinking. Her article “Stepping Stone or Stumbling Block: Incrementalism in National Climate Change Regulation” proposes fascinating and counter-intuitive interactions between national and international regulatory choices. I focus my response on two questions raised by both scholars:
  • Do popular laws spread in different ways from unpopular ones? What changes when international organizations do not recommend expansions to social programs, but instead call for austerity measures and cut-backs?
  • Does diffusion through democracy lead us to expect global convergence or regional silos?
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25 Jun

[Katerina Linos is an Assistant Professor of Law at Berkeley Law] I’m honored to receive comments on the Democratic Foundations of Policy Diffusion from two preeminent scholars in international law. Eric Posner has written thought-provoking work in countless fields, but I’ll highlight one article, “The Law of Other States” for its rich insights on what an ideal policy diffusion process might resemble.  Ryan Goodman’s work has changed the way we think about human rights, the law of war, and interdisciplinary scholarship in international law more generally. Goodman’s path-breaking article “How to Influence States: Socialization and International Human Rights Law” has lead many international lawyers to focus not only on only political science and economics, but also on sociology. It inspired me to write this book. Their comments invite debate on several empirical issues, as well as on two major theoretical questions:
  • 1)   Do diffusion studies imply that “international law is weaker than generally recognized”?
  • 2)  How does my theory of diffusion through democracy connect to theories of state socialization, and more generally to research on constructivism and sociological institutionalism? Which exact mechanism do my experimental results support?
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24 Jun

[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?
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