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?