Modeling Domestic Politics in International Law Scholarship

In this review essay, we use Eric Posner and Alan Sykes\u27 Economic Foundations of International Law as a springboard to highlight key analytical contributions of rational choice models to the field of international law and to suggest avenues for future research. We argue that Economic Foundations is unusually comprehensive and that, as a result, the field can now respond to a major criticism. Critics have long argued that rational choice models are too abstract to make useful predictions about most issues relevant to international lawyers. We show that this critique is no longer jusified, in part through a systematic classifcation of all articles published in the last decade in two of the flagship journals of the fields of international law and international relations, the American Journal of International Law and International Organization, respectively. That said, we also argue that scholars working in this research tradition can make much progress by relaxing the most troubling assumption of existing rational choice models: the unitary state assumption. We show how two types of models widely used in other fields--principal- agent models and domestic distributional conflict models--can be fruitfully applied to international law debates. Our critique is thus internal; we suggest that it is possible to keep the simplicity and clarity typical of game-theoretic models while assuming that key constituencies within the state, rather than the state itself, can rationally pursue interests. Moreover, we also argue that some important policy implications of earlier rational choice models change when we weaken the unitary state assumption. Finally, even though our critique is internal to the law and economics tradition, we also show how studies from more sociologically minded traditions often yield complementary, rather than conflicting, insights

Back to Basics: The Benefits of Paradigmatic International Organizations

In the early 2000s, small “coalitions of the willing,” flexible networks, and nimble private-public partnerships were promoted as alternatives to bureaucratic, consensus-seeking, and slow-moving international organizations. The Global Fund to Fight AIDS, Tuberculosis and Malaria was established as an efficient alternative to the lumbering World Health Organization. The Basel Committee, the Financial Stability Forum, and the Financial Action Task Force were lauded as global market regulators. The Pompidou Group, the Dublin Group, and Interpol were touted as effective police networks in the battle against transnational crime. We systematically reviewed the evolution of these celebrated networks in the ensuing decades by using a broad range of primary legal sources and, to better understand the consequences of institutional design, interviewed a dozen key negotiators and staff members. We document that many networks have pursued paradigmatic international organization features: they have broadened their membership to include dissenting countries and established or expanded independent secretariats. In addition, many networks have secured privileges and immunities agreements to shield their staffs and assets. Some have discussed or made plans to transform into international organizations. We argue that existing work on international organizations underestimates the benefits of the paradigmatic international organization form. Because international institutions must engage with multiple audiences, including different ministries in diverse countries, other international organizations, and current and future staff members, the tried-and-true package of features international organizations offer retains surprising appeal

Unintended Agency Problems: How International Bureaucracies are Built and Empowered

The ground underneath the entire liberal international order is rapidly shifting. Institutions as diverse as the European Union, International Monetary Fund, United Nations, and World Trade Organization are under major threat. These institutions reflect decades of political investments in a world order where institutionalized cooperation was considered an essential cornerstone for peace and prosperity. Going beyond the politics of the day, this Article argues that the seeds of today’s discontent with the international order were in fact sown back when these institutions were first created. We show how states initially design international institutions with features that later haunt them in unexpected ways. In the worst cases, states become so dissatisfied with the institutions they build that they threaten to abandon or dissolve them, shaking the foundations of the international order. Our central argument is that two cooperation problems intersect in unanticipated ways. The first problem – the horizontal conflict – involves the distribution of benefits among states. When states first create an international organization, they seek to capture a big share of the benefits and protect their interests vis-à-vis other states. They do this by demanding voting rules that allow them to block unfavorable decisions, requiring leadership positions for their own nationals, and lobbying to include their priority issues on the organization’s agenda. We argue that this initial effort to resolve distributional conflicts is short-sighted, ultimately leaving states dissatisfied with the international organizations they build. The second problem – the vertical conflict among states collectively, on the one hand, and international organization bureaucracies and tribunals, on the other – is worsened by the compromises reached to resolve the horizontal conflict. For example, when states agree that key decisions must be reached by consensus, it becomes difficult to roll back the actions of a wayward secretariat or tribunal down the line. Or, when states place their own nationals in key positions, a multi-national body with an international agenda emerges. Such an international organization can become detached from the national concerns of its creators. Moreover, when states put their key issues on the organization’s agenda, a broad mandate results. In turn, a broad mandate empowers the organization’s staff to set its own priorities, making state control difficult. Contrary to prior isolated studies on horizontal and vertical conflicts, we are the first to identify how the two conflicts intersect in important and unexpected ways. To find possible solutions, we draw on analogous intersections in corporate law literature, which have been examined more thoroughly

Effects of reproductive and demographic changes on breast cancer incidence in China: A modeling analysis

Background: Breast cancer incidence is currently low in China. However, the distribution of reproductive and lifestyle risk factors for breast cancer among Chinese women is changing rapidly. We quantified the expected effect of changes in breast cancer risk factors on future rates of breast cancer in China. Methods: We first validated and calibrated the Rosner-Colditz log-incidence breast cancer model in Chinese women who participated in the Shanghai Women's Health Study cohort (N = 74 942). We then applied the calibrated model to a representative sample of Chinese women who were aged 35-49 years in 2001 using data from the Chinese National Family Planning and Reproductive Health Survey (NFPRHS, N = 17 078) to predict the age-specific and cumulative breast cancer incidence among all Chinese women of this age group. We evaluated the relative impact of changes in modifiable risk factors, including alcohol intake, parity, postmenopausal hormone use, and adult weight gain, on cumulative incidence of breast cancer. Results: Breast cancer incidence in China is expected to increase substantially from current rates, estimated at 10-60 cases per 100 000 women, to more than 100 new cases per 100 000 women aged 55-69 years by 2021. We predicted 2.5 million cases of breast cancer by 2021 among Chinese women who were 35-49 years old in 2001. Modest reductions in hormone and alcohol use, and weight maintenance could prevent 270 000 of these cases. Conclusions: China is on the cusp of a breast cancer epidemic. Although some risk factors associated with economic development are largely unavoidable, the substantial predicted increase in new cases of breast cancer calls for urgent incorporation of this disease in future health care infrastructure planning

The Global Dominance of European Competition Law Over American Antitrust Law

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s competition regime: the EU actively promotes its model through preferential trade agreements and has an administrative template that is easy to emulate. As EU and US regulators offer competing regulatory models in domains as diverse as privacy, finance, and environmental protection, our study sheds light on how global regulatory races are fought and won

The diffusion of financial supervisory governance ideas

Who is watching the financial services industry? Since 1980, there have been multiple waves of thought about whether the ministry of finance, the central bank, a specialized regulator or some combination of these should have supervisory authority. These waves have been associated with the convergence of actual practices. How much and through what channels did internationally promoted ideas about supervisory 'best practice' influence institutional design choices? I use a new dataset of 83 countries and jurisdictions between the 1980s and 2007 to examine the diffusion of supervisory ideas. With this data, I employ Cox Proportional Hazard and Competing Risks Event History Analyses to evaluate the possible causal roles best practice policy ideas might have played. I find that banking crises and certain peer groups can encourage policy convergence on heavily promoted ideas

How Can International Organizations Shape National Welfare States? Evidence from Compliance with EU Directives. CES Working Paper, no. 107, 2004

How can international organizations shape national welfare states? The answer depends on why national governments comply with international organization mandates. International relations scholarship offers two competing compliance models. Enforcement theories emphasize states’ utilitarian calculus and predict that states’ policy preferences determine implementation, while managerial theories attribute non-compliance to states’ capability limitations and emphasize institutional variables. This paper examines the implementation of EU social policy directives through a new quantitative dataset and qualitative case studies of implementation in Greece and Spain. Three proxies for national social policy preferences – low labor costs, high unemployment and early national social legislation – predict implementation delays. At the same time, factors unrelated to national preferences on particular directives have at least as large an impact on timely implementation. Thus, a national bureaucracy’s capacity and the absence of veto players reduce implementation delays. These findings suggest that capabilities influence compliance at least as much as preferences, but through mechanisms different from the ones emphasized in existing work. Although international organizations may not be especially successful in overcoming past policy legacies in favor of future commitments, they can reorient the axes of contestation from left-right to supra-sub national and thus shape national policies

Legislative Borrowing

Commentator: David Sloss (Santa Clara University School of Law