The Institutionalist Implications of an Odious Debt Doctrine

Sovereigns incur debts, and creditors look to the law to hold sovereigns to their obligations. In legal terms, the question is whether to recognize and define an odious debt defense through a treaty or national legislative acts, on the one hand, or through the decisions of authoritative dispute-settlement bodies, whether international arbitral organs or domestic courts. Moreover, others may think that odious debt doctrine as a means can optimize the social welfare generated by sovereign-debt contracts. Here, Stephan examines the social welfare in the economic sense but attacks the problem from a different direction and concludes that no satisfactory mechanism exists for instituting an odious debt doctrine

International Governance and American Democracy

Does international governance threaten to crowd out American democracy? Many public figures and scholars think so. The street theater in Seattle last fall and Senator Dole\u27s effort to establish a national tribunal to review World Trade Organization ( WTO ) dispute resolution decisions both attest to the extent of the concern. As international institutions burgeon in number and significance, the residuum of authority left in our national government seems an ever diminishing domain. Extrapolating into the future, one can envision a time when the United States retains only as much sovereignty as, say, the members of the European Union or the States in our own federal system. The diminution of sovereignty brings with it a loss of democracy, as the distance between citizens and the institutions that make the most meaningful decisions grows greater. I take this concern seriously but believe its popular formulation is too simplistic and somewhat misplaced. International governance entails not only the formal institutions and explicit agreements that generate what I have called the new international law. It also embraces a system of formulating and imposing norms on state and individual behavior that operates outside of any publicly accountable institution. A debate recently has arisen in the United States over the legitimacy of customary international law, with fierce arguments on each side. One dimension of this debate is the tension between American democracy and the adoption of customary norms through the courts

Courts, Tribunals, and Legal Unification - The Agency Problem

Any project to unify some part of the law across jurisdictions requires an adjudicatory body to apply the unified law to transactions and transactors. The available choices include domestic courts (which in the United States entails a further choice between federal and state courts), private arbitration, ad hoc arbitration under the auspices of an international organization (such as that conducted by the International Center for the Settlement of Investment Disputes), and a permanent international tribunal (such as the European Court of Justice, the Dispute Settlement Body of the World Trade Organization, the International Court of Justice, or the new International Criminal Court). Most efforts to unify law take it on faith that the application phase will not present any significant problems, assuming that adjudicatory bodies will honor the commands of the legislator and, where discretion exists, will implement the underlying purpose of the unified legislation in a coherent and transparent fashion. I argue, to the contrary, that the application phase presents severe difficulties that will frustrate a wide range of unification projects. In particular, any legal unification project that has substantial redistributive dimensions will face significant obstacles, whatever the adjudicatory body chosen. First I discuss the roles of adjudicatory bodies in promoting the unification of law. Then I clarify the redistributive dimensions of unification projects. Working within the familiar framework of game theory as applied to international relations, I distinguish between the coordination and defection problems that underlie most international interactions. I argue that adjudicatory bodies have the ability to generate solutions to some coordination problems, but face major obstacles when seeking to implement stable solutions to others, and to many defection problems. The difficulties vary depending on the types of adjudicatory bodies involved, but each type has its own drawbacks. I offer examples from a range of current unification projects- carriage of goods, antitrust, and environmental law-to illustrate how application problems can frustrate unification

The Political Economy of Jus Cogens

This Article examines the basis of an asserted jus cogens exception to sovereign immunity. It demonstrates that the vision of jus cogens one embraces depends on background assumptions about the present and future of the international system. A robust conception of jus cogens assumes: (1) that independent judges and tribunals, informed by the views of non-state actors, can identify core international obligations and manage their tradeoffs with other values pursued by the international legal system, and (2) that the actions of independent judges and tribunals, informed by non-state actors, will influence state behavior. Doubts about the abilities of judges and tribunals, or fear about the rise of powerful and authoritarian actors in the international system, leads to a much narrower role for jus cogens, and thus broader sovereign immunity

\u3cem\u3eBond v. United States\u3c/em\u3e and Information-Forcing Defaults: The Work that Presumptions Do

This Article first places Bond in the context of the Supreme Court’s growing reliance on interpretive presumptions to limit the effect of legislation. While some of the presumptions go back to the early days of the Republic, the current Court has expanded the roster of these devices and strengthened their effect. A review of the treatment of information-forcing defaults in contracts scholarship follows. Contract theory, or more precisely the strand of contract theory that draws on economics, seeks to identify socially optimal rules for contract formation, interpretation, and enforcement. To clarify the specific role of these rules, this Article compares information- forcing defaults to contract rules that allow parties to design mechanisms to deal with future contingencies about which no party has special knowledge. After exploring the economic analysis of contract interpretation, this Article then considers how contract theory’s insights, which illuminate the welfare effects of private ordering, might inform our understanding of the production of public law through the dynamic relationship between legislators and judges. This Article looks at several informal models of how Congress and the federal judiciary operate, and in particular at how they interact with respect to statutory interpretation. It then identifies the circumstances under each model that would support a conclusion that the Court’s current trend may contribute to the social good

\u3cem\u3eBond v. United States\u3c/em\u3e and Information-Forcing Defaults: The Work that Presumptions Do

This Article first places Bond in the context of the Supreme Court’s growing reliance on interpretive presumptions to limit the effect of legislation. While some of the presumptions go back to the early days of the Republic, the current Court has expanded the roster of these devices and strengthened their effect. A review of the treatment of information-forcing defaults in contracts scholarship follows. Contract theory, or more precisely the strand of contract theory that draws on economics, seeks to identify socially optimal rules for contract formation, interpretation, and enforcement. To clarify the specific role of these rules, this Article compares information- forcing defaults to contract rules that allow parties to design mechanisms to deal with future contingencies about which no party has special knowledge. After exploring the economic analysis of contract interpretation, this Article then considers how contract theory’s insights, which illuminate the welfare effects of private ordering, might inform our understanding of the production of public law through the dynamic relationship between legislators and judges. This Article looks at several informal models of how Congress and the federal judiciary operate, and in particular at how they interact with respect to statutory interpretation. It then identifies the circumstances under each model that would support a conclusion that the Court’s current trend may contribute to the social good