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Abstract:
Contemporary justifications of international criminal tribunals (ICTs), especially the permanent International Criminal Court, often stress the role of such tribunals in deterring future humanitarian atrocities. But hardly any academic commentary has attempted to explore in-depth this deterrence rationale. This essay utilizes economic models of deterrence to analyze whether a potential perpetrator of humanitarian atrocities would likely be deterred by the risk of future prosecution by an ICT. According to the economic theory of deterrence, two factors - certainty and severity of punishment - are central to the reduction of crime after taking into account a particular individual's preference for risk. In the context of a possible ICT prosecution, isolating the pool of individuals likely to commit humanitarian atrocities is difficult but not insurmountable. Given that international tribunals are not likely to have independent police powers in the foreseeable future, the actors most likely to face prosecution are individuals in weak states who have failed politically. In other words, the likely pool will be composed of individuals in weak states who have been forced from political power by local or foreign forces. Examining evidence concerning the fate of failed coup plotters and dictators in Africa - a group that represents a pool of likely perpetrators of atrocities - we show that the probability that this pool of individuals will be subject to a range of other legal and extra-legal sanctions is quite high. Moreover, the severity of the sanctions these individuals are likely to face - death, life imprisonment, and torture - is also likely to be higher than those imposed by an ICT. Thus, prosecution by an ICT will often serve as a weaker substitute, rather than a complement, to pre-existing sanctions. In one situation, however, the threat of ICT prosecution is likely to complement other possible sanctions and serve as a deterrent - where the perpetrator is unlikely to be subject to other sanctions because he is considered to be politically indispensable. But in such circumstances, the ex ante benefits of deterrence from ICT prosecution will likely be outweighed by the ex post harms of prosecuting a spoiler - an individual whose prosecution is likely to generate local political instability. In other words, the prospect of prosecution by an ICT may sometimes exacerbate the risks of humanitarian atrocities. Finally, prosecution by an ICT may also exacerbate conflicts though a political opportunism effect in which local politicians will have an incentive to free-ride off ICT efforts and turn a blind eye to the kinds of institutional reforms that are more likely to prevent future atrocities.

international tribunals, international criminal law, deterrence

Abstract:
Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close to an empirical truth in international relations: democracies do not tend to go to war with each other. First, we articulate and evaluate the various arguments that underpin the democratic peace literature and analyze their relationship to the United States constitutional structure of war powers. Second, we distinguish between two types of constitutional processes that would be most necessary for successfully combating different regimes. We argue that if the United States were involved in a dispute with another democracy, the President ought to involve Congress because a dual branch process would help facilitate a peaceful resolution to the dispute by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a non-democracy or a terrorist organization, a unilateral presidential approach might make much more sense because a non-democratic regime or terrorist organization is unlikely to appreciate the value of congressional participation. Finally, we conclude with the observation that in the war powers debate, only an approach that gives the President the complete flexibility to seek congressional participation would permit the United States to adapt its domestic decision making structure to the exogenous demands of the international system.

Abstract:
Under the WTO's dispute settlement procedures, a party that has been injured by a scofflaw state's failure to comply with its trade obligations may retaliate against the scofflaw state by withdrawing equivalent trade concessions. Legal and economic commentators generally view retaliation as an economically perverse strategy for enforcing free trade norms. This Article explores an alternative explanation, arguing that retaliation may provide the optimal enforcement mechanism for trade liberalization given the prevalence of low compliance incentives and high enforcement costs in international cooperation agreements. This Article argues that retaliation is superior to other remedial options because it enables an injured state to inflict maximum political costs on the scofflaw state by mobilizing powerful export groups in the scofflaw state against protectionist policies. Furthermore, this Article shows how the presence of significant protectionist groups in the injured state, which stand to benefit from retaliatory measures, also improves the injured state's ability to commit to retaliation. Even if states have asymmetric preferences about protectionist policies, however, retaliation threats can still be credible since there is uncertainty about each state's retaliation costs. Finally, this Article concludes that contrary to the conventional wisdom, the substantial role of uncertainty in this model suggests that specific performance, and not compensation, ought to be the goal of the WTO's enforcement mechanism.

World Trade Organization, WTO

Abstract:
This Essay states the public choice case against reforming the current WTO enforcement mechanism in which parties that prevail in an international trade dispute can retaliate against the scofflaw state by suspending equivalent trade concessions. Currently, there are two distinct kinds of proposals floating around to change this mechanism to make it more incentive-compatible for all member states and user-friendly to developing nations: The first is the use of collective or third party sanctions; and the second is the imposition of monetary compensation. This Essay argues that both of these proposed reform schemes introduce potential pathologies of their own that are likely to dwarf those of the current enforcement mechanism. First, it argues that under a collective or third party sanctions scheme, the administering third-party states will have no incentive to choose a retaliation strategy that maximizes compliance because they will not face any export group pressures to do so. Rather, such states will have an incentive to choose a retaliation strategy that maximizes the returns to their protectionist interest groups. In other words, collective or third party sanctions are likely to increase the global level of protectionism without any offsetting compliance benefits. Second, it argues that the costs associated with monetary damages — including the likelihood that it will lead to socially excessive levels of litigation — are likely to be higher than its putative benefits to developing countries. Finally, the Essay suggests that pro-reform advocates tend to rely on empirical assumptions that might overstate the extent to which the current enforcement scheme actually hurts the interests of developing states.

WTO, international trade, remedies, international law, public choice, Remedies, international courts

Abstract:
This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent military build-up or troop deployment. This Article assumes that the President has the exclusive ability to influence the scope of an international crisis that precedes an actual armed conflict by making public threats against foreign states. Once such public threats reach a critical threshold, however, backing down by any domestic institutional actor becomes difficult due to the presence of significant domestic audience costs. In other words, since a domestic audience is likely to punish any domestic institutional actor that attempts to back down from an escalating international crisis, neither Congress nor the courts have much of an incentive to intervene once the President decides to initiate conflict. The President thus has a significant institutional advantage in framing the domestic audience costs for going to war. Given this apparent agenda-setting advantage, however, it is puzzling as to why the President would ever seek congressional authorization before initiating international conflicts. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic game of domestic and international interaction. At the domestic level, once the President decides to initiate conflict, he has an incentive to seek congressional authorization as a form of political insurance if he believes that the war is going to be fairly long or costly, or if he is uncertain about the prospects of victory. At the international level, the President also has an incentive to seek congressional authorization if he is uncertain about the outcome of the conflict and wants to send a costly signal to the foreign enemy about the country's resolve to prosecute the conflict. In sum, the ex-ante beliefs of the President regarding the outcome of a conflict and the possibility of subsequent punishment by a domestic audience ultimately determine his decision to seek congressional authorization. Finally, this Article also argues that Congress has an incentive to constrain the President's war-making agenda in the shadow of a politically unpopular war. But while the President often shapes public opinion in his war powers role, Congress tends to react to public opinion when it constrains the President's war initiatives. This Article uses historical case studies, including the 2003 invasion of Iraq, to test these theoretical arguments.

constitutional law, separation of powers, foreign affairs law, national security law, international law

Abstract:
Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem is that when the international community intervenes in the civil wars or insurrections where most humanitarian atrocities take place, its decision is partially endogenous or interdependent with that of the combatants; humanitarian interventions both influence and are influenced by the decisions of the victims and perpetrators of atrocities. Herein lies the paradox: because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place. More specifically, the prospect of humanitarian intervention often increases the level of uncertainty about the distribution of costs and resolve between the combatants. In turn, such uncertainty amplifies the possibility of divergent expectations between the dominant and rebel group regarding the outcome of a civil war. At bottom, the prospect of humanitarian intervention might sometimes increase the risks of genocidal violence. This Article turns to insights from the domestic framework of torts and criminal law to elaborate upon the theoretical framework that motivates this perverse dynamic, provides some contemporary illustrations from civil wars in Africa and the Balkans, and recommends improvements to the current regime to mitigate some of its unintended effects. This Article concludes that the optimal regime of humanitarian intervention would incorporate comparative fault principles that take into account the failure of victim (or rebel) leaders to take adequate precautions against the risks of humanitarian atrocities.

genocide, humanitarian intervention, human rights, international law, international criminal law

Abstract:
One of the most widespread contemporary assumptions in the discourse of separation of powers is that while the President tends to have preferences that are more national and stable in nature, Congress is perpetually prone to parochial concerns. This deeply ingrained assumption not only pervades legal scholarly treatment of the administrative state, but it is also used to frame debates about the division of foreign relations powers and the proper scope of judicial review of executive branch agency regulations. This Article examines the three explanations commonly given for the President's more national outlook and introduces institutional considerations that reveal them to be more myth than fact: (1) The President has a broader population and geographic constituency than members of Congress; (2) The fact that members of Congress are elected frequently means that they are more susceptible to special interest or parochial legislation than the President; and (3) The President tends to care more about the overall health of the national economy than Congress does. This Article shows that under the winner-take-all system of our Electoral College, the President will often have an incentive to cater to a narrower geographical and population constituency than that of the median member of Congress. Furthermore, this Article also contends that while the preferences of individual members of Congress may often be short-sighted and parochial, the collective wisdom of these parochial members of Congress will often produce policy outcomes that are more national and public-regarding than that of any single elected official. Finally, this Article critically analyzes the implications of debunking the fable in three areas of public law where it has been particularly pervasive: the unitary presidency, judicial deference to executive branch agency decisions, and the allocation of international trade authority.

Abstract:
In the contemporary debate over the allocation of war powers, the standard account assumes that prior congressional authorization for the use of force will produce unambiguous deliberative effects because it channels the war-making decision through multiple political actors with varying points of view. Contrary to the received wisdom, this experimental Article advances the empirically plausible but counter-intuitive assumption that congressional authorization of the use of force might actually have a perverse effect. Thus, rather than create a drag effect that minimizes the impulse to rush into imprudent wars, congressional authorization might actually do the opposite: because such authorization allows the President to spread the potential political costs of military failure or stalemate to other elected officials, it will lead the President to select into more high risk wars than he would otherwise choose if he were acting unilaterally. In other words, since congressional authorization acts as a political "insurance policy" that partially protects the President against the possible political fallout from failed military engagements, such authorization is more likely to make the President willing to engage in wars where the expected outcome is uncertain. More importantly, not only is the President likely to use congressional authorization as a hedge against the loss of political dominance when a war goes bad, he is also likely to use it to prevent the political opposition from exploiting the electoral vulnerabilities of members of Congress from his own party. Finally, because of the short-term electoral risks associated with voting against a presidential request to use force, members of Congress are likely to approve the President's war agenda, especially if the President requests such authorization shortly before a national election. As the political fallout from the ongoing Iraqi occupation mounts, this Article uses foreign policy debates in Congress and the executive branch regarding both the costs of the occupation and a possible withdrawal plan to test these theoretical hypotheses.

constitutional law, international law, foreign relations law, national security law

Abstract:
We analyze the interaction between electoral accountability and separation-of-powers as mechanisms for reducing political agency slack. We compare three stylized regimes: a "Unilateral Authority" setting in which the President has exclusive authority over some policy decision; a "Mandatory Checks and Bal-ances" regime in which the President cannot enact the policy unless Congress approves; and an "Opt-In Checks and Balances" system in which the President may seek congressional authorization, but may also act unilaterally. The analysis generates three principal insights. First, voters respond to the risk of politi-cian bias by making the political rewards and punishments for policy success or failure asymmetric. Vot-ers rely less on this instrument, however, when internal checks screen out some undesirable policies. Second, the addition of a veto player need not alter the ex ante likelihood of policy change. Third, voter welfare is highest under the Opt-In Checks regime and lowest under the Unilateral Authority regime.

Abstract:
This Article attempts to explain and justify the exceptional treatment that courts accord foreign affairs issues under the political question doctrine. For the most part, academic commentators have attacked the political question doctrine, arguing that the doctrine is both incoherent and inconsistent with the Marbury tradition of judicial review. Challenging the conventional academic wisdom, this Article contends that institutional competence considerations continue to warrant broad application of the doctrine in the foreign affairs context. More specifically, this Article argues that the power-based nature of most international policy decisions continues to constrain the power of the courts to adjudicate on foreign affairs controversies. Nonetheless, the mere involvement of foreign affairs in a legal dispute should not automatically preclude judicial review. Rather, this Article suggests an alternative vision of the judicial function in foreign affairs, which I call the balance of institutional competencies approach. This approach envisions a spectrum of judicial authority in foreign affairs, which depends on whether the underlying foreign affairs controversy implicates individual rights or domestic property interests, or whether Congress has legislated on the particular foreign affairs issue in question. When viewed as a device for the proper allocation of institutional competencies in foreign affairs disputes, this Article contends that the political question doctrine is both doctrinally coherent and, in the proper circumstances, normatively attractive.

Abstract:
This Article attempts to explain and justify the exceptional treatment that courts accord foreign affairs issues under the political question doctrine. For the most part, academic commentators have attacked the political question doctrine, arguing that the doctrine is both incoherent and inconsistent with the Marbury tradition of judicial review. Challenging the conventional academic wisdom, this Article contends that institutional competence considerations continue to warrant broad application of the doctrine in the foreign affairs context. More specifically, this Article argues that the power-based nature of most international policy decisions continues to constrain the power of the courts to adjudicate on foreign affairs controversies. Nonetheless, the mere involvement of foreign affairs in a legal dispute should not automatically preclude judicial review. Rather, this Article suggests an alternative vision of the judicial function in foreign affairs, which I call the balance of institutional competencies approach. This approach envisions a spectrum of judicial authority in foreign affairs, which depends on whether the underlying foreign affairs controversy implicates individual rights or domestic property interests, or whether Congress has legislated on the particular foreign affairs issue in question. When viewed as a device for the proper allocation of institutional competencies in foreign affairs disputes, this Article contends that the political question doctrine is both doctrinally coherent and, in the proper circumstances, normatively attractive.

foreign affairs, political question, institutional competency

Abstract:
This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative, with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent international crisis. This Article argues that the presidential decision to seek congressional authorization for the use of force is determined by a two-level strategic interaction. At the domestic level, once the President decides to initiate conflict, he has an incentive to seek congressional authorization as a form of political insurance if he believes that the war is going to be fairly long or costly, or if he is uncertain about the immediate prospects of victory. At the international level, the President also has an incentive to seek congressional authorization if he is uncertain about the outcome of the conflict and wants to send a costly signal to the foreign enemy about the country's resolve to prosecute the conflict. In sum, the ex-ante beliefs of the President regarding the outcome of a conflict and the possibility of subsequent punishment by a domestic audience ultimately determine his decision to seek congressional authorization. Finally, this Article also argues that Congress has an incentive to constrain the President's war-making agenda in the shadow of a politically unpopular war. Nonetheless, while the President often shapes public opinion in his war-powers role, Congress tends to react to public opinion when it constrains the President's war-powers initiatives. Rather than follow public opinion and withdraw from a politically unpopular war, the President is more likely to escalate the war and gamble that the course of the war and public opinion will change in his favor. Thus, a presidential decision to withdraw from an unpopular war is more likely to be a result of congressional intervention than a reaction to negative public opinion. This Article uses historical case studies, including the 2003 invasion of Iraq, to test these theoretical arguments.