In association with the International Commission of Jurists

Author: Rachel Brewster

26 Jun

[Rachel Brewster is Professor of Law at Duke Law] There is much to admire in Katerina Linos’ new book, The Democratic Foundations of Policy Diffusion: How Health, Family and Employment Laws Spread Across Countries.  Linos elegantly integrates a disparate set of literatures – international relations, domestic politics, and transnational diffusion – to construct a powerful and persuasive account of the transmission of social policy between states.  The book is a remarkable achievement.  It uses sophisticated statistical models as well as case studies and polling data to establish the causal argument at the core of the book:  that democratic voters are a crucial part of the diffusion process. Linos’ approach is a significant departure from the standard diffusion story, which models diffusion as an elitist, technocratic model.  The conventional account posits that high-level policy officials will evaluate the social policies of a diverse group of nations and select the policy that is best suited to their national conditions (or the officials’ political or professional goals).  This expertise-based account predicts that policies will trend across countries as states based on elite connections–potentially over the preferences of the national population. Linos offers a fundamentally different understanding of the diffusion process.  She argues that domestic democratic majorities are not irrelevant to the spread of social policies, but a central part of the process.  Rather than being an elite policy story, the politics of diffusion is a voter-centric one.  This makes a significant difference in the pattern of outcomes we should observe.  Because voters have limited policy information and limited willingness to investigate competing policy claims, voters focus their attention on the policies of their large and wealthy neighbors.  Thus diffusion policies should be somewhat “lumpy” with dominant regional templates.  Policies recommended by international institutions – even non-binding resolutions or recommendations – are also identifiable to voters and can produce more uniform policies transnationally.  In addition to making different predictions, the voter-centric model also put a different light on the democratic-deficit critique.  Linos persuasively demonstrates that politics of diffusion is a majoritarian process and not a minority-dominated imposition of elite views. To my eye, the most intriguing elements of Linos’ work relate to what diffusion models inform our understanding of the influence of international law on national politics. 
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26 Mar

[Rachel Brewster is Professor of Law at Duke Law] One of the many virtues of Eric Posner and Alan Sykes’ new book, “Economic Foundations of International Law,” is that it provides the reader with a theoretically coherent and consistent overview of important international treaty regimes, substantive international rules, and state enforcement practices.  The book is a lucid introduction to international law for students and also contains sophisticated analysis of the dynamics of international legal systems for academics and international lawyers. A major theme of the book is that state compliance with substantive international rules is not always optimal.  This will be controversial with many audiences, but is extensively defended in the text.  Once the authors shift to this paradigm (where compliance with substantive rules is not the primary goal), then the question of remedies take center stage.  Remedies serve an important sorting function by defining the consequences of breach, permitting (even encouraging) “efficient” breaches, and discouraging those that are inefficient. Remedy law thus receives its own chapter (rare for international law), as well as an extended discussion in the international trade and international monetary law chapters. If remedies are properly calibrated, then they can support differing levels of enforcement.  To deter any breaches of international law, remedies should seek to eliminate any gains to the breaching party (accounting for the likelihood of detection).  To permit efficient breaches, the remedies need only provide expectation damages to the injured party.  As the authors argue, the creation of a third-party adjudicatory system of limited remedies can actually create more opportunities for “cheating” than a system of unilaterally determined responses to breach. How one assesses remedies and what is entitled to a remedy are thus important issues to maintaining optimal levels of compliance with international rules.  Posner and Sykes maintain that the best means of operating international remedy regimes is through a liability rule, where a court or arbitrator determines the level of damages, rather than through a property rule, where a court would issue an injunction against a breach and the parties would renegotiate the relevant legal rule (either globally or for the particular case).  Both approaches have costs.  The liability rule may produce errors because the judge or arbitrator cannot correctly assess the level of damage to the injured party.  The property rule allows the parties who have private information on the level of injury or gain to use this information in bargaining, but the property rule can have high negotiation costs and hold-out problems (if bargaining with multiple parties).  The authors argue that the costs of the liability system should be lower in the international context. Yet we can still debate whether the liability rule approach is really preferable in international law.  First, in bilateral or regional treaties agreements, a property rule may be preferable because the negotiating costs may be relatively low compared to the possible error of a liability rule, and concerns about hold-outs decrease.  Second, most disputes (if not most agreements) are bilateral.  The vast majority of the time, only a few states will bring complaints even if the allegedly breaching policy affects many states.  A number of factors, including power differentials and litigation costs, can prevent states from pursuing high quality cases.  For instance, in the WTO Upland Cotton case, the US policy affected a wide group of cotton-producing states, but only Brazil brought a case against the US.  If most cases are bilateral (or involve a small number of plaintiffs) then, again, negotiation costs and hold-out concerns are lower.  In addition, the property rule may better mimic an optimal remedy.  If only a small number of states bring claims, then a liability rule may be a very good filter for determining efficient versus inefficient breach.  A property rule may (but not always will) be a better filter because one complaining state can bargain for compensation based on the worldwide effects of the policy.
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11 Apr

[Rachel Brewster is an Assistant Professor of Law at Harvard Law School.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. I have the pleasure of commenting on Gregory Shaffer and Joel Trachtman’s innovative and important article, "Interpretation and Institutional Choice at the WTO," recently published in the Virginia Journal of International Law. The authors present an analytical framework for assessing the interpretative choices made by treaty drafters and the WTO judicial bodies based on social welfare and participatory values. This framework provides international law scholars with a comprehensive overview of the different forms by which international law can be established (the drafting stage) and the various methods by which the law can be understood and applied (the interpretation stage). By integrating the drafting and the interpretation processes, the authors address important questions in international law concerning the tradeoffs treaty drafters consider, how specific texts like the WTO Agreements relate with other international laws and institutions, and the consequences of different approaches to treaty interpretation. The article is of great interest to international legal scholars and also sociologists, economists, international relations theorists, and policymakers. In this short comment, I want to highlight one point that I particularly appreciate in the article and want to explore further. It is the relationship between the drafting text and the interpretative methods of the Appellate Body. One of the few places that the treaty drafters were explicit about the interpretative methods that WTO panels and the Appellate Body should use was in the Anti-Dumping Agreement. That interpretative rule requires deference to national government actions when the action is within a “permissible interpretation” of the Agreement. As the authors note, several commentators believe that the Appellate Body has not been constrained by this rule and has adopted a more exacting substantive review process than the drafters intended. Indeed, this issue has raised the question of whether Appellate Body rulings have precedential status for subsequent WTO panels, because panelists have disagreed with the Appellate Body’s interpretation of the appropriate standard and failed to apply the Appellate Body’s rule. This issue seems to be an interesting one for the authors’ framework because it raises several questions. First, what drives Appellate Body decision-making? As the authors discuss, the possibility of a legislative veto is relatively low because of the reverse consensus rule and the infrequency of new multilateral agreements (although the Appellate Body selection process may remain influential). As a result, the interpretative approach of the Appellate Body (Part III of the Article) is particularly important to international law scholars and international relations theorists who question what judges will do with policy discretion in treaty implementation.
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