A Rational Design Theory of Transgovernmentalism: The Case of E.U.-U.S. Merger Review Cooperation

There are two basic forms of legal and regulatory cooperation in world politics: interstate and transgovernmental. The former involves states behaving as unitary actors, facing the world as integrated units and each speaking with one voice in its interactions with other unitary states. The latter occurs when cross-border cooperation takes place directly between governmental subunits of different states, such as courts and regulatory agencies. But why is legal and regulatory cooperation among some states and in some issue areas principally interstate, while among other states and in other issue areas it is primarily transgovernmental? The principal goal of this article is to contribute to the scholarship on transgovernmental legal and regulatory networks and transgovernmentalism in general by proposing some possible answers to this question. To accomplish this, the article uses two analytical tools from the discipline of political science: the concept of transgovernmental relations and the theory of rational institutional design. It applies these tools to develop a rational design theory of transgovernmentalism aimed at explaining the conditions under which legal and regulatory cooperation is more likely to be transgovernmental versus interstate. The article probes the theory\u27s plausibility using a case study of E.U.-U.S. merger review cooperation

Myth of mess? International choice of law in action

Choice of law is a mess-or so it is said. According to conventional wisdom, choice-of-law doctrine does not significantly influence judges' choice-of-law decisions. Instead, these decisions are primarily motivated by biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants. They are also highly unpredictable. This Article argues that these "mess" claims do not accurately describe at least one domain of choice of law-international choice of law-and it demonstrates what is at stake in this debate for global governance. Part I provides a brief overview of choice-of-law doctrine in the United States. Part II documents the mess claims. Part III then shows how the mess claims, if correct, would be bad news for global governance. Choice-of-law doctrine can increase or decrease global economic welfare, enhance or undermine transnational rule of law, and facilitate or hinder transnational bargaining. The extent of these effects, and whether they are beneficial or harmful, depends largely on the degree to which choice-of-law doctrine actually influences judges' international choice-of-law decisions and the extent to which those decisions are biased and unpredictable. The mess claims thus imply that if choice of law has any systematic effects on global governance they are likely to be harmful. Part IV uses statistical analysis of an original dataset of published international choice-of-law decisions by U.S. district courts in tort cases to present evidence that choice-of-law doctrine indeed influences these decisions; that these decisions are not biased in favor of domestic law, domestic litigants, or plaintiffs; and that they are actually quite predictable. The mess claims, it turns out, may be myths-at least in transnational tort cases. Part V explores the broader implications of my analysis. In particular, it explains why these findings are encouraging from a global-governance perspective and why they might plausibly extend to unpublished international choice-of-law decisions and domestic choice-of-law decisions. Overall, the Article's findings suggest that the conventional wisdom exaggerates what is wrong with choice of law and implicitly underestimates its contributions to global governance. Copyright © 2009 by Christopher A. Whytock

Foreign law in domestic courts: Different uses, different implications

One can be forgiven for wondering if the debate about references to foreign law in U.S. court opinions is much ado about nothing.1 In none of the cases that sparked the debate - Atkins v. Virginia,2 Lawrence v. Texas,3 and Roper v. Simmons4 - did the U.S. Supreme Court treat foreign law as binding law that could override U.S. law. Nor, as two recent articles empirically demonstrate, is the use of foreign law by U.S. courts anything new.5 For courts in other countries, the use of foreign law is "decidedly commonplace."6 Ye t "[t]here is little evidence to suggest parallel mobilization in opposition to foreign citations by courts abroad"7 - which suggests that the controversy in the United States indeed might be disproportionate to the problems posed by comparativism in judicial decision making. As Noga Morag-Levine states, "Supreme Court opinions are replete with references to extra-legal sources such as philosophical treatises and social science research. Why single out foreign case law as deserving of special condemnation?"8 After a careful analysis of the debate, Mark Tushnet concludes that what really is motivating critics of foreign law in U.S. courts is concern about the appropriate scope of judicial power, not foreign law per se.9 Nevertheless, the question of foreign law in domestic courts is an important one. Skeptics correctly warn that the use of foreign law - at least in the context of constitutional interpretation - raises serious issues of constitutional theory10 and comparative methodology. 11 Those more sympathetic to the use of foreign law not only disagree with skeptics' arguments that there is no "constitutional license" to use foreign law,12 but also claim that a greater willingness of domestic courts to use foreign law can improve the quality of constitutional decision making. The focus of existing research and commentary on both sides of this debate is on the constitutional issues associated with references to foreign law in U.S. court opinions and, more generally, on the important normative concerns about whether and how domestic courts should use foreign law. This work, however, focuses little attention on the actual consequences of domestic court references to foreign law and therefore eventually relies on untested empirical assumptions about what those consequences might be. 13 Nonconsequentialist reasons to favor or disfavor foreign law in domestic courts exist, of course. Ye t a well-informed, normative dialogue must be attentive to consequences, at least if it is to extend beyond the narrow confines of more formal variants of constitutional theory. The use of foreign law in domestic courts also raises interesting questions of positive theory - particularly about the relationship between different uses of foreign law and the cross-border migration of legal norms that so far are unexplored. For these reasons, this chapter proposes a social science approach that focuses on the empirical implications of foreign law in domestic courts. Unfortunately, the existing literature does not provide the conceptual foundations for exploring these implications. Scholars generally appreciate that domestic courts can use foreign law in different ways and that these differences are analytically significant, but the result has been an overabundance of typologies of different uses and a lack of conceptual clarity. Therefore, in the main part of this chapter, I will attempt to take a small conceptual step forward by consolidating into a single, manageable typology the many different uses of foreign law in domestic courts that already have been identified by scholars. No single typology can be useful for all purposes, and ultimately an empirical project motivated by a particular theory calls for concepts that are motivated by the same theory. Thus the goal is modest: to provide a language for a preliminary exploration of the empirical implications of different uses of foreign law that may be useful to a wide range of scholars. Next, I will build on the typology by considering the consequences of different uses of foreign law in domestic courts and the role of domestic courts as agents in processes of norm internalization and transnational policy diffusion. In particular, I will use the typology to examine the claim made by some critics that foreign law references in U.S. court opinions lead to the internalization of non-U.S. norms into U.S. society by changing domestic law or policy. Finally, I will suggest several avenues for future research on foreign law in domestic courts and domestic courts as institutional pathways for norm internalization. The central message is simple: Different uses of foreign law have different implications for the cross-border migration of legal norms, and both normative theory and positive theory should take these differences into account14. © 2010 State University of New York. All rights reserved

After Kiobel: International Human Rights Litigation in State Courts and Under State Law

Litigation in domestic courts is only one of many ways to promote and protect international human rights, but it has received much attention from lawyers and scholars. Attention has focused above all on litigation in the U.S. federal courts under the Alien Tort Statute (the “ATS”). However, plaintiffs are facing growing barriers to ATS human rights litigation in the U.S. federal courts, and it is likely that the Supreme Court’s upcoming decision in Kiobel v. Royal Dutch Petroleum Co. will further restrict this type of litigation — perhaps substantially. This Essay provides an overview of the legal issues surrounding one possible alternative human rights litigation strategy: human rights litigation in U.S. state courts or under U.S. state law. It highlights both the attractions and the limits of this strategy, and it identifies the challenging legal issues that this strategy will raise for judges, lawyers and scholars, ranging from choice of law and extraterritoriality, to jurisdiction and federal preemption. This Essay also serves as the foreword to a symposium issue of the UC Irvine Law Review that contains articles by leading practitioners and scholars of human rights, international law, and conflict of laws providing in-depth analysis of these and other aspects of human rights litigation in state courts and under state law