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Abstract:
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' 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.

path dependence, common law, legal system, stare decisis, precedent

Abstract:
In this paper, Professor Hathaway develops a theory of "path dependence" to explain the role of history in the American common law system. In processes that are path-dependent, outcomes depend upon the particularities of the historical path that leads to them. For this reason, path dependence may produce results that are not foreseen, desired, efficient, or suited to current conditions. Under the rubric of path dependence, the paper identifies three separate models of historical evolution and change, drawn in turn from economics, political science, and evolutionary biology. It then describes the specific analytical tools that each model provides for understanding the American common law system, which is built on the explicitly backward-looking doctrine of stare decisis. Drawing on these new insights, the paper ends with a normative analysis of the doctrine of stare decisis, concluding that where the costs of path dependence are high, the application of stare decisis should be relaxed.

Abstract:
Today, over 50,000 international treaties are in force, covering nearly every aspect of international affairs and nearly every facet of state authority. And yet many observers continue to argue that international law - with its general absence of central enforcement and its typically voluntary character - is ineffective, if not meaningless. This Article assesses and responds to this challenge, focusing on the largest area of public international law - treaties. Combining insights from both political science and legal scholarship, it offers a theory of state decisions regarding treaty laws that accounts for the key ways in which such laws shape state behavior. This integrated theory of international law seeks to explain why countries would commit to treaties that potentially constrain their behavior and how the treaty, once accepted, influences or fails to influence state behavior. I argue that commitment and compliance are reciprocal influences on each other. If compliance is very costly or carries few benefits, for instance, countries will be unlikely to join a treaty in the first place. As a result, states behave in ways that standard theories miss - failing to join treaties, for example, that they could easily comply with, or joining treaties that they have little inclination to obey. The theory emphasizes two central means by which treaties shape what countries do. The first is the enforcement of international treaties by transnational actors and by rule of law institutions within nations that join the treaty. In particular, domestic enforcement mechanisms are a crucial force pushing countries to comply with international treaties - and because they are, they are also a key influence upon countries' willingness to join such treaties in the first place. The second is the collateral consequences of treaty membership - that is, the anticipated consequences for, among other things, foreign aid and investment, trade, and domestic political support. Collateral consequences arise when domestic and transnational actors premise their actions toward a state on the state's decision to accept or not accept international legal rules. As I demonstrate using both new empirical evidence and reanalysis of earlier studies, the relationship between treaties and state behavior hinges significantly on these two factors. The Article thus offers a vision of the potential and the limits of international law that integrates and moves beyond existing accounts.

International law, compliance, treaties, environment, human rights

Abstract:
Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative, historical, and policy lenses. U.S. international lawmaking is currently haphazardly carved up between two tracks of international lawmaking, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two. Moreover, the process for making international law that is outlined in the U.S. Constitution is close to unique in cross-national perspective. To explain how the United States came to have such a haphazard and unusual system, this Article traces the history of U.S. international lawmaking back to the Founding. The rules and patterns of practice that now govern were developed in response to specific contingent events that for the most part have little or no continuing significance. The Treaty Clause process is demonstrably inferior to the congressional-executive agreement process as a matter of public policy on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, this Article concludes by charting a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with ex post congressional-executive agreements, policymakers can make America's domestic engagement with international law more sensible, effective, and democratic.international law more sensible, more effective, and more democratic.

Treaty Clause, Congressional-Executive Agreement, International Law

Abstract:
International law has long been subjected to the charge that it isn't really law - at least not in the sense that we usually imagine law. There is no international police force standing ready to enforce the laws of the international community against states that violate them. There is no court system that can adjudicate violations and assess penalties. And, with a few exceptions, there is no mechanism for penalizing states found to have fallen short of the law's rules. This has led some to conclude that most of international law is little more than cheap talk - words not backed up deeds and, hence, without any real force. And yet this view of international law misses much of what makes international law relevant and powerful: International law is not only enforced by states against one another, but it is also enforced by states against themselves. That is to say, it is enforced by domestic courts and political institutions that pressure their own government to live up to the promises it has made; it is enforced by individuals and interest groups that pressure the political branches of government to live up to international legal commitments they have made, whether they can be enforced in the courts or not; and it enforced by individuals or groups that use a state's own court system to enforce international law through litigation. It is this missing part of the picture - the enforcement of international law at home - that this essay brings to light.

This essay explores these issues through the lens of one of the most important international law cases in the United States in at least the last decade: Hamdan v. Rumsfeld. The case powerfully illustrates both the promise and limits of domestic enforcement of international law. The circumstances that gave rise to it demonstrate the hurdles that domestic enforcement of international law faces in even the most robust democracies. It stands as a stark reminder that the domestic enforcement of international law relies not only on the existence of robust rule of law institutions, but also on the ability of those institutions to reach the cases in which international legal rules are at stake. And yet Hamdan also offers a more hopeful message: Domestic enforcement of international law can succeed even where there is stringent resistance by even the most powerful of political actors. The story of Hamdan is thus the story of both the fragility and the power of domestic enforcement of international law, and in this story lies broader lessons for the promise and limits of international law as a whole.

Hamdan, torture, Guantanamo, detainees, international law, Geneva Conventions

Abstract:
Do countries comply with the requirements of human rights treaties that they join? Are these treaties effective in changing states' behavior for the better? This Article addresses these questions through a large-scale quantitative analysis of the relationship between human rights treaties and countries' human rights practices. The analysis relies on a database encompassing 166 nations over a nearly forty-year period in five areas of human rights law. The analysis finds that although the practices of countries that have ratified human rights treaties are generally better than those of countries that have not, noncompliance with treaty obligations appears common. More paradoxically, controlling for other factors that affect practices, it appears that treaty ratification is not infrequently associated with worse practices than otherwise expected. These findings can be explained in part, the Article contends, by the dual nature of treaties as both instrumental and expressive instruments. Treaties not only create binding law, but also declare or express the position of countries that ratify them. Because human rights treaties tend to be weakly monitored and enforced, countries that ratify may enjoy the benefits of this expression-including, perhaps, reduced pressure for improvements in practices-without bearing significant costs. This does not mean that human rights treaties do not have any positive influence, but simply that these positive effects may sometimes be offset or even outweighed by treaties' less beneficial effects. The Article concludes by considering better ways to help ensure that human rights treaties improve the lives of those they are meant to help.

International law, treaties, human rights, compliance, regional treaties, human rights treaties, international legal compliance, torture, women's political equality, genocide, civil liberty, free trials, cross national panel data, expressive theory, signaling theory

Abstract:
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' decisions to join them, little attention has been paid to what influences countries' 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' 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's 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's 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.

treaties, united nations, genocide, torture, civil liberties, fair trials, women's rights, compliance, human rights

Abstract:
In their book, The Limits of International Law, Professors Jack Goldsmith and Eric Posner use rational choice theory in an effort to understand how international law works in practice. This theory, they argue, invariably leads to the conclusions that most of customary law is the product of coincidence, that much of multilateral treaty law will fail, and that reliance on legal rules is frequently counterproductive. Provocative though these claims may be, the book fails to offer a robust explanation for the growth and variety of international legal commitments at play in today's world. The introduction of rational choice theory is itself largely unremarkable; the methodology has already found its way into international law scholarship over the past decade. More troubling, the conclusions that the book reaches do not follow from the rationalist theory that it presents; rather, we argue, the conclusions emerge from deeply held normative concerns about the role of international law in the U.S. constitutional system - in a word, from revisionism. In this review, we identify the revisionist commitments that color Professors Goldsmith and Posner's analysis of international law and propose a series of questions that rationalist legal scholars should answer as they move to develop deeper and more sophisticated rationalist theories of international law.

international law, revisionism, rational choice theory, Eric Posner, Jack Goldsmith

Abstract:
The growing strength and reach of international law over the last half century has deepened existing tensions between the ideals of state sovereignty and international order based on law. State sovereignty requires that states have ultimate and independent authority to govern themselves and those within their territory. Yet states now routinely make legal promises that are perceived to lie in direct conflict with this conception of sovereignty, including delegating to international institutions authority that has traditionally been held exclusively by states. This has given rise to a powerful backlash in the United States and elsewhere. Critics of international law fear that its ever-expanding scope will encroach on domestic law and authority, taking power from local authorities and delegating it to international actors that are far removed - physically, culturally, and politically - from those they seek to govern. This article takes up the challenge to international law posed by these critiques. It argues that the critics of international law err in assuming that states' sovereignty almost always suffers when states delegate authority to international institutions. In doing so, they portray the costs of delegation as larger than they in fact are. Moreover, recent work has lost sight of some of the substantial benefits of cooperation.

Part I of this article outlines the challenge to sovereignty posed by international law and especially international delegation, focusing on recent debates over the influence of international legal commitments on domestic governance. Part II reconsiders the sovereignty costs of international delegation. It argues in particular that when we take account of state consent to delegation, the scope of conflict between sovereignty and international delegation is substantially narrowed. Nonetheless international delegation can be in tension with state sovereignty, and the article outlines the key sources of this tension as a preface to a discussion of the other side of the cost-benefit equation - namely, the potential benefits. Part III of the article turns to these benefits, asking how the intrusion of international law into areas that were once exclusively domestic might be explained and justified. Whether sovereignty costs lead us to question the wisdom of specific delegations hinges on the benefits that balance against those costs. By exploring both sides of the equation in greater depth, we can come to a deeper and more empirically grounded argument about the proper role of international law and delegation in an age of global interdependence. When we do, we discover that international is often more accurately seen as an exercise of state sovereign authority than a diminution of it.

international law, sovereignty, consent

Abstract:
In a recent article, Do Human Rights Treaties Make a Difference?, 111 Yale Law Journal 1935 (2002), I presented evidence and arguments that called into doubt two widely shared assumptions: (1) that countries generally comply with their human rights treaty commitments, and (2) that countries' practices will be better if they have ratified treaties than they otherwise would be. In response, Professors Ryan Goodman and Derek Jinks have argued that we must stick with conventional assumptions until we know the real effects of human rights treaties. In this reply, I clarify my argument, which Goodman and Jinks misportray, and respond to the central themes of Goodman and Jinks' critique. First, I argue that Goodman and Jinks' skepticism toward my empirical results is misplaced and that their claims are unsubstantiated. Their argument, taken to its logical conclusion, would counsel against any empirical analysis of the effectiveness of human rights treaties. Second, I defend my theoretical account, which argues for looking beyond existing models in analyzing state behavior. Third, I contest Goodman and Jinks' claim that it promotes human rights to continue to rely uncritically upon conventional assumptions. I argue that the international legal community should instead seek to understand better the relationship between treaties and state behavior and then carefully consider how to make treaties more effective.

treaties, international law, human rights, empirical analysis

Abstract:
This Commentary examines the deep and abiding influence of what has been called the New Haven School of international law. It considers 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.

New Haven School, International Law, Myres McDougal, Harold Lasswell

Abstract:
This article examines states' decisions to commit to human rights treaties. It argues that the effect of a treaty on a state - and hence the state's willingness to commit to it - is largely determined by the domestic enforcement of the treaty and the treaty's collateral consequences. These broad claims give rise to several specific predictions. For example, states with less democratic institutions will be no less likely to commit to human rights treaties if they have poor human rights records, because there is little prospect that the treaties will be enforced. Conversely, states with more democratic institutions will be less likely to commit to human rights treaties if they have poor human rights records - precisely because the treaties are likely to lead to changes in behavior. These predictions are tested by examining the practices of more than 160 countries over several decades.

international law, human rights, democracy, torture, treaties

Abstract:
In this chapter, which was published in the Oxford University book "Torture: A Collection," I explore the place of international law in efforts to bring an end to the practice of torture. The debate over whether international law "works" has until now been highly polarized. On the one hand, skeptics of international law claim that international law is mere window dressing. States don't give up the right to engage in torture unless they have no intention of using it anyway. And once they join treaties like the Convention Against Torture, states will act no differently than if they had not done so.

On the other side of the debate are those who reject this dismissive view of international law. They argue that states do not simply join treaties that are in their material interests. Rather, states will join a treaty if they are committed to the ideas and goals it embodies, even if doing so may be costly. And once states join, believers in international law argue, they will abide by their international legal commitments "most of the time."

I, by contrast, argue that international law has a real effect, but not one that either friends or foes of international law would expect. Both advocates and skeptics of international law are missing important parts of the picture. Both fail to consider the role of internal enforcement of international treaties on countries' willingness to join and abide by them. Moreover, they ignore almost completely the indirect effects of treaties on countries' decisions to accept international legal limits on their behavior and then to violate or abide by them. Recognizing these dynamics creates a broader perspective on the role that international law plays in shaping how states actually behave and hence provides a more accurate picture of both the potential and the limits of international law.

international law, torture

Abstract:
The vast majority of U.S. international agreements today are made by the President acting alone on behalf of the United States. Little noticed and rarely discussed, the agreements are negotiated and concluded in a process almost completely hidden from outside view. No single actor is responsible for this state of affairs. It is instead the result of a deep, long-term, and largely hidden 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.

This imbalance of power over international lawmaking is inconsistent with basic principles of democratic governance. The President should be the leading actor in creating binding international legal commitments for the United States - but not the only actor. The current lawmaking process does not provide for genuine cooperation among the branches of government. Instead, a single branch of government is able to make law over an immense array of issues - including issues with significant domestic ramifications - by concluding binding international agreements. This imbalance of power not only violates democratic principles, but may even lead to less favorable and 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 an “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.

international law, congressional executive agreement, president, article II, democracy

Abstract:
This article proposes a theory of dynamic industry preferences and strategies to explain variation in industries' demand for trade protection over time. This theory shows how the characteristics of industries affect their demand for trade policy and how, in turn, trade policy transforms industry characteristics. An important implication of this theory is that trade liberalization tends to reduce, rather than increase, industry demand for protection over the long term. The article begins by developing a static model of industry decision making that illustrates how producers faced with a reduction in trade barriers weigh the costs and benefits of political action and economic adjustment. It then explains how the strategic choices of an industry are determined by key industry characteristics that evolve over time in response to changes in trade policy and market conditions. In particular, it demonstrates that reductions in trade barriers may have a positive feedback effect that dampens rather than amplifies domestic protectionist sentiment. To test this model, the article examines the dramatic postwar transformation of three industries that have historically demanded and received extensive import protection: the footwear, textile, and apparel industries. The article concludes with an assessment of the model and a discussion of its possible implications for our understanding of the politics of trade policy.

trade, international law, trade law, footwear, apparel, textiles, positive feedback