Linos Book Symposium: Response to Verdier, Cohen and Alford

by Katerina Linos

[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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Linos Book Symposium: Comments by Roger Alford

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 question of actors involved in the diffusion process. She notes that “many academics, judges and commentators emphasize how references to foreign law reflect elite predilections antithetical to the views of ordinary voters, especially ordinary Americans.” (p.26). The context of that criticism, of course, is constitutional comparativism by the Supreme Court in cases such as Roper v Simmons and Lawrence v. Texas.

Almost ten years ago I too expressed concern about the countermajoritarian difficulty of the Court adopting international and foreign norms that run counter to American majoritarian values. As I put it in this article, “the international countermajoriatian difficulty would suggest that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards…. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard.” (p. 59).

Katerina does not address constitutional comparativism per se, but she clearly voices her support for the democratic diffusion of norms. Her book presumes that “international norms and democracy are mutually reinforcing” and that “democratic processes are an engine, not an obstacle, for the spread of policies across countries.” (p.2). The book also presumes political rather than judicial avenues for the diffusion of norms, with elected politicians constrained to borrow from and reference large, rich, and proximate countries and prominent international organizations to advance their own policy preferences.

So my question for Katerina Linos is whether her theory of democratic diffusion supports or undermines arguments for constitutional comparativism. She explains at length how democratic diffusion occurs, but does not clearly indicate her preference for this type of diffusion over alternatives. Does her convincing case for democratic diffusion undermine undemocratic diffusion by policy elites in the judiciary who are unresponsive to and unconstrained by majoritarian preferences?

In short, does her theory posit that policy diffusion is better when it occurs through democratic processes than when it is imposed by judicial elites? To take concrete examples, is it better with controversial questions such as juvenile death penalty (Roper v. Simmons) or gay marriage (United States v. Windsor) for policy preferences to be advanced through democratic diffusion or judicial diffusion?

My own sense is that the Supreme Court experimented with policy diffusion of global norms through constitutional adjudication ten years ago, but has since retreated from that approach, and that democratic diffusion of global norms is the new normal. Indeed, just yesterday in Windsor the Court expressed its sensitivity to the democratic diffusion of norms with respect to gay marriage:

In acting first to recognize and then to allow same-sex marriages, New York was responding ‘to the initiative of those who [sought] a voice in shaping the destiny of their own times’…. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other…. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. (pp. 19-20).

Linos Book Symposium: Comments by Harlan Cohen

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.  (more…)

Linos Book Symposium: Comments by Pierre-Hugues Verdier

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.
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Linos Book Symposium: Response to Comments by Bradford and Brewster

by Katerina Linos

[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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Linos Book Symposium: Comments by Rachel Brewster

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.  (more…)

Linos Book Symposium: Comments by Anu Bradford

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. (more…)

Linos Book Symposium: Response to Eric Posner and Ryan Goodman

by Katerina Linos

[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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Linos Book Symposium: Comments by Ryan Goodman

by Ryan Goodman

[Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. You can also find him on Twitter:@rgoodlaw]

Katerina Linos’s book, The Democratic Foundations of Policy Diffusion, bears the hallmarks of great scholarship. She tells us something new, important, and counterintuitive about international law. And she predicates her theories on multiple, rigorous and innovative empirical methods. I thus share the praise that has been heaped on Linos’s impressive book by the other OJ commentators from yesterday and today.  Indeed, I have drawn upon and cited drafts of the book manuscript in my own work; included excerpts of Linos’s earlier research in a textbook that I co-edit; and blurbed the back of the book with immense praise.

Against this backdrop, I want to interrogate a specific part of the book—the chapter on the United States—and, in particular, Linos’s theoretical account of her political opinion experiments. Indeed, this is the key part of the book that tries to get “inside the minds” of individuals and understand the mechanisms for influencing their policy preferences.

The experiments ask a representative sample of the US population whether they support a social policy. Linos then compares that baseline group with groups that were told either that Canada had adopted the policy, that most western states had adopted the policy, that the UN recommended the policy, or that US experts recommended the policy. She also compares whether particular subjects—Republicans versus Democrats or highly informed versus poorly informed individuals—responded differently to the different prompts. In one experiment the social policy is universal health care, and in another experiment the policy is paid maternity leave.

According to Linos, the experiments suggest that foreign and international models provide a source of information for members of the electorate to determine whether their political representatives are proposing good social policies (an information-deficit theory). Does the data fit this theoretical explanation best? Are the data equally consistent with alternative theories that emphasize social and psychological conformity as a mechanism that explains the influence of foreign and international models on individual preferences?

Let’s start with three of the most interesting and important empirical findings in the chapter:

1. US citizens respond much more favorably to governmental policies—including ones that explicitly require tax increases—if they are told that other western states have already adopted the social policy or told that the United Nations recommends it.

2. Republicans respond more favorably than Democrats when informed that the UN recommends a social policy or that most western states have adopted the policy.

Note: This finding appears to compare shifts in support among Republicans who disfavor a social policy with shifts among Democrats who disfavor the policy. This comparison may involve systematic bias. The type of individual who self-identifies as Republican and favors core parts of the Republican Party platform is very different from the type of individual who self-identifies as Democrat and opposes core parts of the Democratic Party platform. Indeed, the former might be considered conformists and the latter non-conformists. And Linos’s findings show that the former are more likely to follow global trends and the international “mainstream.” Accordingly, the key explanation may boil down to a social conformity mechanism.

3. In important cases, individuals who are poorly informed about a social policy respond more favorably than well-informed individuals when told that other western states have already adopted the social policy or that the United Nations has recommended it.

I want to focus in detail on the third finding, and contend that it should be significantly qualified. (more…)

Linos Book Symposium: Comments by Eric Posner

by Eric Posner

[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. (more…)

Linos Book Symposium: Response to Larry Helfer and David Zaring

by Katerina Linos

[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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Linos Book Symposium: Comments by Larry Helfer

by Larry Helfer

[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. (more…)