Crossing Lines S01E03

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?

Linos Book Symposium: Comments by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad. I want to push Katerina a bit on the...

Linos Book Symposium: Comments by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law] As others have already written, The Democratic Foundations of Policy Diffusion, is an extraordinary achievement.  Katerina Linos has succeeded in writing a book that is both bold and meticulous, counterintuitive and utterly convincing.  Reading the book, one feels a sense of excitement that we’re truly learning something new.  There is much to learn from it (among others things, the value of her multi-method approach – a model for others), and it is certain to move the conversation in a variety of fields. Others have already discussed the rich substance of Linos’ study.  My thoughts and questions are on Linos’ conclusions and implications, both those in the chapter of the same title (Chapter 8) and those left unstated. My main concern is that Linos’ study may be more consequential than the final chapter suggests.  It might just be that she’s too humble, but I’m not sure Linos’ conclusion chapter does justice to the radical implications of her findings.  Take the first set of implications she identifies, those regarding the legitimacy of policy diffusion.  “The good news,” as David Zaring summarized, is that far from being imposed by unaccountable foreigners or technocrats, health and family policies are borrowed from abroad as a result of democratic politics.  As Linos writes on p. 181, “[b]y connecting references to foreign laws and international organization proposals to majoritarian values, this theory offers a direct response to criticisms of foreign laws and international organizations’ recommendations as undemocratic.” As Linos recognizes, diffusion through democracy comes with concerns of its own.  Because politicians draw only upon those models to which voters are likely to respond – models from nearby and wealthy states – the policies adopted may not be the best available for their state.  Linos suggests that the foreign models they borrow from may be good choices; various theories of optimal borrowing suggest that shared legal heritage and success on the ground are positive indicia of good policy fit.  But whether or not these policies are the best, the overall implication is that, suggested by politicians and ratified by voters, these policies are at least legitimate (or better, more legitimate than critics of borrowing recognize.) I’m less sure. 

Linos Book Symposium: Comments by Pierre-Hugues Verdier

[Pierre-Hugues Verdier is an Associate Professor of Law at the University of Virginia School of Law] Katerina Linos’s new book, The Democratic Foundations of Policy Diffusion, is one of the most important contributions to arise from the recent turn to empirical scholarship in international law and international relations.  Instead of following a deductive path from broad theoretical assumptions, the book carefully combines survey evidence, cross-country regression analysis and case studies to paint a coherent picture of policy diffusion through democracy in the fields of health and family policy.  Yet, this careful and inductive approach leads to a central theoretical contribution to the field.  From a descriptive perspective, the book shows that non-binding standards with minimal institutional support can contribute to significant domestic policy shifts in high-stakes areas, despite resistance by domestic interest groups.  From a normative perspective, its model of diffusion through democracy may solve a perennial and vexing paradox of global governance, by providing international policy coordination that is both effective and consistent with democratic accountability. However, while the book’s focus on the often neglected areas of health and family policy is innovative and welcome, it inevitably raises the question whether the mechanism it identifies applies to other areas of international law and policy coordination. As the book points out, the field of social policy is characterized by non-binding international models rather than binding agreements, with a few exceptions such as ILO conventions.  Nevertheless, the book suggests in several places that diffusion through democracy may apply much more broadly to other policy choices, and can inform longstanding general questions of institutional design such as the choice of hard law or soft law instruments.  Likewise, the book’s conclusion implies that the normative benefits of this mechanism in alleviating the democratic deficit of global governance also apply to other areas of international policymaking.  In this short contribution, I want to suggest two reasons for caution is assessing the broader potential implications of this mechanism.

Linos Book Symposium: Response to Comments by Bradford and Brewster

[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?

Linos Book Symposium: Comments by Rachel Brewster

[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. 

Linos Book Symposium: Comments by Anu Bradford

[Anu Bradford is Professor of Law at Columbia Law School] Katerina Linos’ book provides a novel, intriguing and highly compelling theoretical and empirical account for how and why foreign models diffuse across borders. Voters have limited information and patience to evaluate policy proposals their government advance. Benchmarking these proposals against policies that international organizations have endorsed, or that large, culturally proximate, and successful countries have adopted, provides a powerful and low-cost way of convincing the general public of the expected success of the policy. This explains why international models shape public policy and explain legislative outcomes in democracies. The book offers a distinctly fresh perspective on the contested relevance of international organizations (IOs). These institutions’ power to convey a clear message of what is competent and mainstream, and the use of that message to gain an electoral advantage domestically, heightens their influence in a way that has thus far not been understood.  This contribution is therefore likely to have a significant and lasting impact in the discussions of international law and institutions. Linos’ decision to test her theory on health and family policies, which are politically contested and fiscally significant, makes her book all the more interesting. This choice allows for a particularly original look at the influence of international law, which rarely focuses on social policy questions. Governments have tried to shape the family decisions on women’s employment and the fertility patterns for decades, the book notes. Their desire to do so will likely only increase with the looming demographic crises across the developed world, which calls for increasing women’s participation in the labor force while also heightening the need to grow the size of their families. The empirical discussion of family policy diffusion across OECD countries (Chapter 6) and as well as the quantitative and qualitative study of family policy developments in Greece and Spain (Chapter 7) offer a strong and often surprising support for her thesis. Looking at the evidence from 18 OECD countries over 25 years, Linos shows how international organizations and cross-country influences explain domestic regulatory choices and spending patterns in the field of family policy. The diffusion of maternity leaves has been particularly striking, which is explained by the existence of strong and coherent international models. Family benefits have diffused considerably less in large part due to the lack of such benchmarks. This pattern—uniform maternity leave policies and differential family benefit policies—is confirmed in her study on the adoption of maternity leaves and family benefits in Greece and Spain. The book emphasizes the relative success of the International Labor Organization (ILO) over the EU in promoting family policies and highlights the power of soft law over hard law to diffuse successfully.  The ILO’s greater success in promoting maternity leaves compared to that of the EU—which is vested with the ability to generate hard law and pursue legal action against reluctant emulators— serves as one indicator of this. However, an alternative reading of Linos’ work could be that of irrelevance of the binding versus non-binding distinction when measuring the influence of international norms.