Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System

Part I of this Article provides an overview of path dependence theory. It outlines the theory and briefly describes three separate strands of the theory: increasing returns path dependence, evolutionary path dependence, and sequencing path dependence, which are rooted in the economics, biological, and rational choice theory literatures, respectively. Although each of these strands has specific and unique characteristics, they are linked by a central insight: In each, an outcome or decision is shaped in specific and systematic ways by the path leading to it. Each of these strands of path dependence in turn has important implications for the course and pattern of change in the common law system. Accordingly, Part II applies path dependence theory to the common law. At the core of the common law system is the requirement that courts adhere to the body of principles and rules of action that derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs. Under the doctrine of stare decisis, higher courts\u27 previous decisions are controlling, courts give their own decisions significant weight, and courts look to non-binding decisions for persuasive precedent. Consequently, although there is some flexibility in the system, precedent remains central to legal deliberation. The doctrine of stare decisis thus creates an explicitly path-dependent process. Later decisions rely on, and are constrained by, earlier decisions. More important, the way in which history shapes legal outcomes corresponds to the three-fold division introduced in Part I. Because each legal decision increases the probability that the next will take a particular form, the common law exhibits increasing returns path dependence. Because the law changes through a process of punctuated yet historically constrained evolution, the common law exhibits evolutionary path dependence. And because the legal process involves sequential decisionmaking in a process marked by competing alternatives and multiple actors, the common law exhibits sequencing path dependence. Therefore, just as biological and social processes are constrained by history, the law is firmly guided by the heavy hand of the past. Finally, Part III turns from the descriptive to the normative. It analyzes the implications of path dependence theory for the doctrine of stare decisis. Path dependence theory reveals that significant costs may arise out of the reliance on precedent in a common law system. The Article concludes with the claim that, all other things being equal, where the costs of path dependence are expected to be especially significant, courts should consider relaxing the doctrine of stare decisis. This prescription not only supports modifying existing practices of reliance upon precedent, but also provides a theoretical basis for some existing distinctions in the degree that judges rely on certain categories of precedent

The Continuing Influence of the New Haven School

This Conference has explored the deep and abiding influence of what has been called the New Haven School of International Law. It offers an occasion to reflect on the connection between the ideas at the heart of the School and the place at which they were first formulated-that is, between New Haven and the school of thought that bears its name. And it is an opportunity to consider the connection between the past and the present-the ideas first formulated by Myres S. McDougal and Harold D. Lasswell more than a half-century ago, and those, both near and far, whose work they have influenced

International Delegation and State Sovereignty

Hathaway rebuts the claim that state sovereignty almost always suffers when states delegate authority to international institutions. Critics of delegation err, she contends, by overemphasizing the costs but losing sight of some of the substantial benefits of cooperation. She considers the challenge to sovereignty posed by international delegation by focusing on recent debates over the influence of international legal commitments on domestic governance

Presidential Power over International Law: Restoring the Balance

The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking. As a result, the President is now able to make law over an immense array of issues—including issues with significant domestic ramifications—by concluding binding international agreements on his own. This imbalance of power violates democratic principles and may even lead to less effective international agreements. To correct this imbalance, this Article proposes a comprehensive reform statute that would normalize U.S. international lawmaking by reorganizing it around two separate tracks. International agreements that are now made by the President alone would proceed on an administrative track and would be subject to what might be called the “Administrative Procedure Act for International Law.” This new process would offer greater openness, public participation, and transparency, but not overburden lawmaking. A legislative track would include two existing methods for concluding international agreements: Senate-approved Article II treaties and congressional-executive agreements expressly approved by both houses of Congress. In addition, it would include an expanded “fast track” process that would permit streamlined congressional approval of agreements. Together, these proposals promise to create a more balanced, more democratic, and more effective system for international lawmaking in the United States

The Cost of Commitment

Over the last half-century, the number of treaties that address issues of human rights has grown from a handful to hundreds. The majority of nations now belongs to a panoply of international agreements - some regional, some universal - that address human rights issues ranging from labor standards to the treatment of prisoners to gender equality. The last decade in particular has witnessed a concerted push from the United Nations to bring nations into the human rights fold through ratification of the six core United Nations human rights treaties. Yet despite the proliferation of treaties and the growing attention to countries\u27 decisions to join them, little attention has been paid to what influences countries\u27 decisions to join these treaties. In this Article, I focus on only a small part of the broader puzzle of human rights treaty membership. Putting to one side, for the moment, the ways in which countries benefit from joining human rights treaties, I seek insight into how the cost of committing to human rights treaties influences countries\u27 decisions to join. I begin by proposing a new way of conceiving of the cost of consenting to be bound by a treaty. I argue that for treaties with minimal enforcement provisions - which includes most human rights treaties - understanding the cost of commitment requires taking into account not only the cost that would be entailed in bringing the country\u27s practices into compliance with the treaty but also the likelihood that those costs will be realized. I then investigate whether countries appear to be influenced by this cost of membership when they decide whether or not to join particular treaties. The Article uses empirical evidence drawn from a database that covers 166 nations over a time span of forty years to shed some light on the decisions of nations to join human rights treaties. Do countries with better human rights practices ratify more readily than those with worse human rights practices; Is the propensity of nations to ratify treaties affected by the enforcement mechanisms used in the treaties; Do democratic nations ratify more readily than nondemocratic nations; Is there a difference in the willingness of democratic and nondemocratic nations to commit to a treaty when their practices are out of step with the treaty\u27s requirements; These are a few of the questions that I ask in this Article. The empirical evidence, while far from conclusive, provides some preliminary answers that I hope will serve as a roadmap to future, more detailed investigation

The Law of Cyber-Attack

Cyber-attacks have become increasingly common in recent years. Capable of shutting down nuclear centrifuges, air defense systems, and electrical grids, cyber-attacks pose a serious threat to national security. As a result, some have suggested that cyber-attacks should be treated as acts of war. Yet the attacks look little like the armed attacks that the law of war has traditionally regulated. This Article examines how existing law may be applied-and adapted and amended-to meet the distinctive challenge posed by cyber-attacks. It begins by clarifying what cyber-attacks are and how they already are regulated by existing bodies of law, including the law of war, international treaties, and domestic criminal law. This review makes clear that existing law effectively addresses only a small fraction of potential cyber-attacks. The law of war, for example, provides a useful framework for only the very small number of cyber-attacks that amount to an armed attack or that take place in the context of an ongoing armed conflict. This Article concludes that a new, comprehensive legal framework at both the domestic and international levels is needed to more effectively address cyber- attacks. The United States could strengthen its domestic law by giving domestic criminal laws addressing cyber-attacks extra-territorial effect and by adopting limited, internationally permissible countermeasures to combat cyber-attacks that do not rise to the level of armed attacks or that do not take place during an ongoing armed conflict. Yet the challenge cannot be met by domestic reforms alone. International cooperation will be essential to a truly effective legal response. New international efforts to regulate cyber-attacks must begin with agreement on the problem-which means agreement on the definition of cyber-attack, cyber-crime, and cyber-warfare. This would form the foundation for greater international cooperation on information sharing, evidence collection, and criminal prosecution of those involved in cyber-attacks-in short, for a new international law of cyber-attack