Rational Choice or Deliberation? – Customary International Law between Coordination and Constitutionalization

Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.-

Correspondences and Contradictions in International and Domestic Conflict Resolution: Lessons From General Theory and Varied Contexts

Does the field of conflict resolution have any broadly applicable theories that work across the different domains of international and domestic conflict? Or, are contexts, participants, and resources so domain specific and variable that only thick descriptions of particular contexts will do? These are important questions which have been plaguing me in this depressing time for conflict resolution professionals, from September 11,2001 (9/11), to the war against Iraq. Have we learned anything about conflict resolution that really does improve our ability to describe, predict, and act to reduce unnecessary and harmful conflict? These are the questions I want to explore in this essay, all the while knowing that I will ask more questions than I have answers to. My hope is to spark more rigorous attention to the possibility of comparative dispute resolution study and practice, using key concepts, theories, empirical studies, practical wisdom, and experiential insights to spark and encourage more multi-level and multi-unit analysis of some of our shared propositions

Antitrust Policy: A Century of Economic and Legal Thinking

Passage of the Sherman Act in the United States in 1890 set the stage for a century of jurisprudence regarding monopoly, cartels, and oligopoly. Among American statutes that regulate commerce, the Sherman Act is unequaled in its generality. The Act outlawed "every contract, combination or conspiracy in restraint of trade" and "monopolization" and treated violations as crimes. By these open-ended commands, Congress gave federal judges extraordinary power to draw lines between acceptable cooperation and illegal collusion, between vigorous competition and unlawful monopolization. By enlisting the courts to elaborate the Sherman Act' s broad commands, Congress gave economists a singular opportunity to shape competition policy. Because the statute' s vital terms directly implicated economic concepts, their interpretation inevitably would invite contributions from economists. What emerged is a convergence of economics and law without parallel in public oversight of business. As economic learning changed, the contours of antitrust doctrine and enforcement policy eventually would shift, as well. This article follows the evolution of thinking about competition since 1890 as reflected by major antitrust decisions and research in industrial organization. We divide the U.S. antitrust experience into five periods and discuss each period' s legal trends and economic thinking in three core areas of antitrust: cartels, cooperation, or other interactions among independent firms; abusive conduct by dominant firms; and mergers.

Judicial Detection Skill, Litigational Opportunism, and Contractual Compliance

Mutually beneficial agreements might fail if the parties fear contractual opportunism. Litigation is supposed to prevent this, but still leaves room for litigational opportunism: Even knowing that the opponent has fulfilled his obligations, a party might bring suit. We show that with positive judicial detection skill, litigation fees can be designed to deter opportunistic suits and simultaneously induce bilateral contractual compliance. With zero detection skill, as implicitly assumed by most of the economic literature on litigation, bilateral contractual compliance cannot be induced. We apply our results to evaluate the American and the British cost allocation rules. -- Beidseitig vorteilhafte Abkommen können scheitern, wenn eine der Parteien vertraglichen Opportunismus befürchtet. Gerichtsklagen sollen diesem Problem abhelfen, eröffnen aber eine Gelegenheit für Prozeß-Opportunismus: Selbst wenn eine Vertragspartei weiß, daß die andere ihre Leistungspflicht erfüllt hat, kann sie auf Leistung klagen. Wenn Richter positive Erkenntnisfähigkeit haben, dann können Gerichtskosten so festgelegt werden, daß die Parteien von opportunistische Klagen abgeschreckt und zu vertragsgetreuem Verhalten motiviert werden. Können Richter nicht zwischen legitimen und opportunistischen Klagen unterscheiden, dann kann beideseitige Vertragseinhaltung nicht angeregt werden. Wir wenden dieses Ergebnis an, um die amerikanische und die britische Gerichtskostenregel miteinander zu vergleichen.procedural law,frivolous suits,positive detection skill,verifiability,litigation costs,American rule,British rule

Responding to Agency Avoidance of OIRA

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue that, because the relationship between agencies and OIRA involves ongoing repeat player interactions, some of these avoidance tactics are less likely to occur (or to succeed) than has previously been alleged, and others are more likely; the difference depends significantly on how easy it is for OIRA to detect avoidance, and for OIRA, the courts, and others to respond. Further, we note that in this repeat player relationship, responses to agency avoidance tactics may induce further strategic moves and countermoves. Thus we further argue that the optimal response may not always be to try to eliminate the avoidance behavior; some avoidance may be worth tolerating where the benefits of trying to reduce agency avoidance would not justify the costs of response options and countermoves. We therefore conclude that responses to agency avoidance should be evaluated in a way similar to what OIRA asks of agencies evaluating proposed regulations: by weighing the pros and cons of alternative response options (including no action)

Responding to Agency Avoidance of OIRA

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue that, because the relationship between agencies and OIRA involves ongoing repeat player interactions, some of these avoidance tactics are less likely to occur (or to succeed) than has previously been alleged, and others are more likely; the difference depends significantly on how easy it is for OIRA to detect avoidance, and for OIRA, the courts, and others to respond. Further, we note that in this repeat player relationship, responses to agency avoidance tactics may induce further strategic moves and countermoves. Thus we further argue that the optimal response may not always be to try to eliminate the avoidance behavior; some avoidance may be worth tolerating where the benefits of trying to reduce agency avoidance would not justify the costs of response options and countermoves. We therefore conclude that responses to agency avoidance should be evaluated in a way similar to what OIRA asks of agencies evaluating proposed regulations: by weighing the pros and cons of alternative response options (including no action)

The Harmonization Game: What Basketball Can Teach About Intellectual Property and International Trade

In the recent World Men\u27s Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While the United States\u27 losses might have a significant impact on how the country will prepare for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball. The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players interact with rules, officials, and other players, one therefore could gain insight into globalization and the international harmonization process. Team USA\u27s recent loss might be a painful lesson to Americans, but it provides a beneficial lesson to all of us who are involved in intellectual property and international trade

Review Essay: How Rational is International Law?

Economic approaches are becoming increasingly prominent in international law. A few years ago, Jack Goldsmith and Eric Posner caused a great stir with their account of The Limits of International Law, in which they argued that international law did not have any effect on state conduct. This contribution reviews two recent books analyzing the effectiveness of international law from an economic perspective. Both authors, Andrew Guzman and Joel Trachtman, take a much more differentiated approach than did Goldsmith and Posner, thus making analytical methods of economics more acceptable for mainstream international law scholarship. Still, this contribution argues that we should be cautious to perceive the economic perspective as a holistic explanation of “how international law works”. Economic models are, for methodological reasons, based on certain assumptions. The analytical tools are thus only capable to answer a certain range of questions so that they have to be complemented by other theoretical approaches. Therefore, we have to be very cautious with policy recommendations that are based on a purely economical perspective.

The Harmonization Game: What Basketball Can Teach About Intellectual Property and International Trade

In the recent World Men\u27s Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While the United States\u27 losses might have a significant impact on how the country will prepare for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball. The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players interact with rules, officials, and other players, one therefore could gain insight into globalization and the international harmonization process. Team USA\u27s recent loss might be a painful lesson to Americans, but it provides a beneficial lesson to all of us who are involved in intellectual property and international trade