The Customary International Law Supergame: Order and Law

Customary international law is an enigma. It is produced by the decentralized actions of states, and it generally lacks centralized enforcement mechanisms. Political science realists and some rationalist legal scholars argue that customary international law cannot affect state behavior: that it is “epiphenomenal.” This article develops a model of an n-player prisoner’s dilemma in the customary international law context that shows that it is plausible that states would comply with customary international law under certain circumstances. These circumstances relate to: (i) the relative value of cooperation versus defection, (ii) the number of states effectively involved, (iii) the extent to which increasing the number of states involved increases the value of cooperation or the detriments of defection, including whether the particular issue has characteristics of a commons problem, a public good, or a network, (iv) the information available to the states involved regarding compliance and defection, (v) the relative patience of states in valuing the benefits of long-term cooperation compared to short-term defection, (vi) the expected duration of interaction, (vii) the frequency of interaction, and (viii) whether there are also bilateral relationships or other multilateral relationships between the involved states. One implication of this model is to lend credence to customary international law. From a research standpoint, this model identifies a number of parameters for which data may be developed in order to test the model. From a policy standpoint, this model shows what types of contexts, including malleable institutional features, may affect the ability of states to reach stable and efficient equilibria in their customary international law relations.

Integrating Lawfare and Warfare

Current military campaigns are not waged solely on the physical battlefield, but in multiple other arenas. One such arena is lawfare: legal activity that supports, undermines, or substitutes for other types of warfare. In today’s law-rich environment, with an abundance of legal rules and legal fora, strategists must evaluate the full scope of possible legal argumentation. Lawfare can substitute for warfare where it provides a means to compel specified behavior with fewer costs than kinetic warfare, or even in cases where kinetic warfare would be ineffective. As a result, lawfare can be strategically integrated into military command structures to bring about desired outcomes

Ubi Remedium, Ibi Ius at the WTO

The WTO law of remedies for violation appears incoherent. States that fail to comply with their obligations are subject to WTO-authorized retaliation. First, this retaliation takes the inefficient form of blocked trade by the complaining state. This remedy is unlikely to be useful to developing countries. Second, the amount of trade blocked by the violation is often used as the measure of authorized retaliation. This measure is not necessarily incentive compatible, as it is not necessarily linked to welfare. Thus, its use may result in inefficient breach, or inefficient compliance, with WTO law. Third, only states that engage in dispute resolution proceedings are authorized to retaliate, artificially reducing the possible incentives to comply. Fourth, authorization to retaliate is granted only prospectively, and there are generally no formal remedies for damages accruing before adjudication and the passage of permitted time for compliance. This also artificially reduces incentives to comply. This paper analyzes the rationale for, and structure of, welfare-based remedies that could form the basis for cash compensation in WTO law

Toward a Comparative Analysis of Institutions for International Economic Integration

This issue is devoted to the publication of papers presented at the 1996 annual conference of the International Economic Law Group of the American Society of International Law. This conference presented an opportunity for scholars from different countries and backgrounds, with expertise in different types of international eco- nomic integration, to assemble and compare notes. The articles in this issue represent the results of their research and discussion

The International Law of Economic Migration: Toward the Fourth Freedom

This volume examines the welfare economics, political economy, and legal experience in international economic migration, and on the basis of its analysis, suggests the structure of a multilateral framework agreement on international economic migration.https://research.upjohn.org/up_press/1030/thumbnail.jp

Conflict of Laws and Accuracy in the Allocation of Government Responsibility

The field of conflict of laws suffers from a lack of theoretical coherence, and therefore fails to provide a satisfactory basis for discourse, adjudication, legislation, and inter-governmental negotiation regarding issues of prescriptive scope. This Article advances a law and economics-based approach to conflict of laws for use in both the domestic and international context. The Article first assesses the theoretical coherence of some principal conflict of laws approaches, analyzing their resolution of four tensions: predictability and adminstrability versus accuracy, unilateralism versus multilateralism, private interest versus public interests, and courts versus legislatures. It refers to Professor Baxter\u27s comparative impairment methodology as well as prior law and economic-based approaches to conflict of laws, and articulates, extends, and modifies these approaches. This Article proposes that decisionmakers faced with conflict of laws issues should allocate prescriptive jurisdiction over a subject matter to the government(s) whose constituents are affected by the subject matter, pro rata in proportion to the relative magnitude of such effects, as accurately as is merited given transaction costs in allocation of prescriptive jurisdiction. This simple proposition, however, raises many difficult theoretical and practical issues

The WTO Constitution: Tertiary Rules for Intertwined Elephants

Constitutions have many dimensions. These dimensions include at least the following: • an economic constitution in the sense of a set of rules for exchange of value and authority, • an interfunctional constitution that allows for the integration of various social values, • a political constitution that reflects the cultural and democratic integrity of a group of people, • a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules, • a human rights constitution that limits the sphere of governmental authority, and • a redistributive constitution founded on social solidarity. The WTO constitution has already grown along some of these dimensions. As we assess the constitutional development of the WTO, we must first analyze these dimensions separately. Second, we must examine how these dimensions relate to one another. Third, we must examine how these dimensions of the WTO “constitution” relate to the general international legal system’s constitution. Finally, we must examine how these dimensions of the WTO “constitution” relate to the domestic constitutions of the WTO’s member states

The Theory of the Firm and the Theory of the International Economic Organization: Toward Comparative Institutional Analysis

Debates regarding the competences and governance of interna- tional economic organizations such as the World Trade Organization (WTO), the European Union (EU) and the North American Free Trade Agreement (NAFFA) seem to grow more polarized. Academic lawyers, political scientists and economists seem to add little light to these heated debates. The purpose of this paper is to examine the theory of the firm and related transaction cost-based literatures of new institutional economics (NIE),4 law and economics (L&E) and industrial organizations (IO),\u27 and the application of their analytical techniques to the linked problems of competence and governance of international economic organizations (IEOs)