In association with the International Commission of Jurists

Linos Book Symposium: Comments by Eric Posner

25 Jun

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago] I’m going to focus on a narrow issue, one that Katerina takes up in the last chapter of her impressive book, and that is the relationship between policy diffusion (the topic of her book) and international law (which is something of an afterthought), and specifically the debate as to why states comply with international law. I can see a few possibilities. First, there is no relationship between the argument in her book and international law. Katerina argues that state X may adopt the policies of state Y because voters in X perceive the success of the policy in Y as evidence of its value, but this process of diffusion says nothing about why state X may comply with an agreement with state Y. Suppose, for example, that state X and state Y enter into a mutual defense pact. The fact that X may imitate Y’s domestic policies, or even foreign policies, does not mean that X will comply with the pact. Second, the book suggests that international law is weaker than generally recognized. Maybe what appears to be compliance with international law because it is law is actually the diffusion of policies. X and Y agree to reduce tariff barriers but X lowers its barriers not because of its treaty but because Y, for independent domestic reasons, lowers its barriers, and X mimics Y. Policy diffusion, not international law, is the causal factor. Thus, if numerous other states raise their trade barriers, we would expect X or Y to raise their trade barriers as well, in violation of the agreement. Third, states comply with treaties because the treaties themselves become a vehicle for the diffusion of policy. States X and Y enter the WTO and comply with its rulings in order to obtain gains from trade. State Z can more easily imitate X and Y’s policies by observing the WTO’s rulings than by surveying numerous states. If Z is itself a member of the WTO, then policy diffusion here may in some sense cause Z to comply with the WTO, or at least act consistently with it. Note, however, that according to Katerina’s argument, Z would comply with the WTO rulings even if Z were not a WTO member and thus had no legal obligation to do so. Katerina endorses the third hypothesis, but her evidence does not distinguish it from the other two. This matters when we consider her claim that her thesis and evidence should quiet those who criticize international law because it interferes with democracy by constraining domestic politics. Katerina’s argument that international law generates information that voters can use to discipline their political agents depends on an implicit assumption, never defended, that policy differences across states are mainly due to asymmetric information, and not heterogeneous values and preferences. There are three problems with this assumption.
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24 Jun

After weeks of anticipation, I finally had a chance to watch the premiere of Crossing Lines, the new NBC drama about a police unit that works for the International Criminal Court. As a police procedural, the show is not bad. William Fichtner is fantastic as always. Production values are extremely high. Bringing together detectives and investigators from a number of...

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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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24 Jun

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law]

Katerina Linos has written an audacious and analytically rigorous study of how health and family policies spread over time across industrialized countries.  She deftly synthesizes a broad range of qualitative and quantitative research methods into a brilliantly-conceived research design that analyzes the mechanisms by which such policies disperse across borders.  The book’s core findings—that foreign and international models influence domestic policy adoption via politicians’ appeals to skeptical voters who view such models favorably—are highly counterintuitive.  The findings are at odds with the existing literature on policy diffusion, which identifies networks of experts and elites as the primary transmission mechanisms.  They are also contrary to the conventional wisdom that resistance to foreign and international policies is especially strong in the United States, where voters are thought to be unaware of such exemplars or mistrustful of those they have encountered.

My comments focus on chapters 3 and 4 of the book, which consider, respectively, how Americans view foreign models and how national health services have diffused across OECD member states.  Linos labels the first question as a “hard test case” for her theory (p.36), for the reasons just noted.  To search for evidence that U.S. voters and politicians are swayed by foreign policies, she conducts public opinion experiments and codes Congressional debates leading to the adoption of the 2010 Affordable Care Act and the 1993 Family Medical Leave Act.  The experiments suggest that Americans are much more likely to favor publicly-funded health insurance and maternity leave if such policies have previously been adopted by most Western countries or endorsed by the United Nations.  Linos also finds that members of Congress reference the health and family policies of rich, proximate and familiar nations rather than countries that experts view as the most relevant to the United States.

Chapter 4 makes the more modest claim that the national health systems (NHS) of foreign countries with the characteristics identified above (and, to a much lesser degree, nonbinding international norms endorsing universal primary healthcare) explain the spread of health policies among industrialized countries.  Here Linos builds upon an existing literature that identifies facilitating conditions for the adoption of NHS, but that has yet to explain the timing and geographic spread of those policies.  Chapter 4’s conclusions, although more nuanced than those of chapter 3, provide additional evidence to support Linos’ theory of democratic diffusion.

I have two sets of comments and questions about Linos’ arguments and findings in these chapters.

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24 Jun

[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:
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24 Jun

This week, we're hosting a symposium on The Democratic Foundations of Policy Diffusion: How Health, Family and Employment Laws Spread Across Countries, a new book by Katerina Linos (Berkeley Law). Here is the publisher's description: Why do law reforms spread around the world in waves? Leading theories argue that international networks of technocratic elites develop orthodox solutions that they singlehandedly transplant across countries....

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23 Jun

Events The American Bar Association Standing Committee on Law and National Security is sponsoring an event at the Newseum in Washington DC, on June 25 at 4pm, on NSA Surveillance Leaks: Facts and Fiction. There will also be a live webcast on the Newseum website if you can't attend. The McCoubrey Centre for International Law at the University of Hull (UK) is...

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22 Jun

I considered adding a question mark to the title of this post, but there's really no need. I argued a couple of days ago that the real scandal concerning Judge Harhoff's letter was the Judge's willingness to reveal confidential discussions between the ICTY's judges. We now have to acknowledge another aspect of the scandal: quite understandably, defence attorneys are making...

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22 Jun

I read my friend Andrew Guzman's book Overheated: The Human Cost of Climate Change with great interest because I know Guzman is exceedingly capable at communicating complex ideas in an accessible format. He's done that throughout his career, and Overheated is no exception. Like Hari Osofsky, I commend the book to our readers. Before you teach...

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21 Jun

[Hari M. Osofsky is an Associate Professor at the University of Minnesota School of Law.] Andrew Guzman’s new book, Overheated: The Human Cost of Climate Change, does an excellent job of explaining in an accessible fashion the devastating consequences of climate change for people, especially the world’s poorest people.  The focus of this book is on bridging the gap between expert knowledge and popular understanding in order to catalyze needed mitigation.  Its great strength is that it does so without minimizing the complexity and intertwined character of the problem.  Rather, it shows how the simultaneity of climate change’s impacts and of their interaction with underlying resource scarcity and political tensions will likely have devastating human consequences even in relatively conservative scenarios of these impacts. Each chapter builds upon the previous one in portraying climate change’s human costs.  The introductory chapter likens the problem of climate change to the game of “Kerplunk,” in which one removes sticks holding up marbles and tries to win by minimizing how many marbles fall during one’s turn.  The difficulty is that the farther one gets in the game, the harder it is to prevent the marbles from falling and to limit the risks of the removal of each subsequent stick.  The book proceeds to show how late we are in our game of “Kerplunk,” outlining the harm that climate change has already done and how that pales in the face of the harm that is very likely to come.  After an initial overview of climate change science, chapters focus on the human consequences of impacts: (1) sea-level rise, severe storms, and forced migration of nation-states and populations; (2) current and future water shortages and our lack of capacity to address them adequately; (3) the risks of armed conflict arising from water shortages and other climate change impacts; and (4) the many resulting health consequences, from increases in known diseases to the growing risks of evolving pathogens and global pandemics. The book concludes with a discussion of solutions.  It analyzes ways to set a carbon price effectively, and cautions against relying on solutions like geoengineering or waiting for an increased future capacity to address the problem effectively. The book’s focus on the human face of climate change is an important contribution to the literature because it helps make the case for why we need to act to address the problem.  It compiles a wide range of existing information on climate change and puts it together in an engaging way that a reader without a technical or legal background could understand.  Each chapter interweaves geopolitics and historical examples with the problem of climate change and how it is likely to worsen.  This approach helps the book contextualize its argument, showing how climate change fits within a complex global context. This book is explicit in its primary focus on describing the human problems rather than on solving them.  However, in this review, I would like to continue where the book left off by suggesting two implications of Guzman’s exposition for potential solutions. 
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19 Jun

I usually defer to An and Jessica's (excellent!) work in flagging international law-related conferences and events.  But, I wanted to call particular attention to a conference I just learned about that Duke Law School is co-hosting with the University of Geneva next month at the Duke-Geneva Institute of Transnational Law on the Role of Opinio Juris in Customary International Law.  The...

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19 Jun

On 11 June 2013, Judge Sanji Mmasenono Monageng asked the Presidency to excuse her from the Appeals Chamber concerning the recent denial of Libya's admissibility challenge to the case against Saif Gaddafi, which Libya is appealing. Judge Monageng's request was based on her previous participation (as Presiding Judge) in the Pre-Trial Chamber's decision to issue an Arrest Warrant for Saif...

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