Showing papers by "Eric A. Posner published in 1998"

A Theory of Customary International Law

Abstract: This article presents a theory of customary international law ("CIL") that seeks to sort out the many well-known difficulties with standard accounts of CIL. The theory uses simple game theoretical concepts to explain how what we call CIL arises, why nations "comply" with CIL as commonly understood, and how CIL changes. This theory differs from the standard account of CIL in several fundamental respects. It rejects the usual explanations of CIL based on opinio juris, legality, morality, and related concepts. States do not comply with norms of CIL because of a sense of moral or legal obligation; rather, their compliance and the norms themselves emerge from the states' pursuit of self interested policies on the international stage. In addition, the behaviors associated with CIL do not reflect a single, unitary logic. Instead, they reflect various and importantly different logical structures played out in discrete, historically contingent contexts. Finally, the theory is skeptical of the existence of multilateral behavioral regularities that are typically thought to constitute CIL. The article tests the theory using case studies from four traditional areas of CIL: neutrality, diplomatic immunity, prize, and maritime jurisdiction. We find that most purported rules of CIL reflect pure coincidence of interest, rather than international cooperation, and that the rest are best explained as the outcome of repeated bilateral prisoner's dilemmas or coercion analogous to the behavior of the monopolist in predatory pricing games. We conclude by examining the implications of our analysis for understanding the role of CIL in domestic constitutional arrangements, the function of international treaties and international organizations, and the status of modern international human rights law.

Symbols, Signals, and Social Norms in Politics and the Law

Abstract: This article uses a signaling model to explain the role of symbols in people's behavior and beliefs, with special attention to legal manipulation of symbols. It is argued that certain actions become symbolic because they have the proper cost structure and because they are, for historical or psychological reasons, focal. The government can in theory use standard legal instruments (which mainly affect the cost of the signal) to change equilibrium behavior and belief. The use of the law in this way is likely to have unpredictable effects because of multiple equilibria and of the sensitivity of behavior to parameters, but it occurs frequently because lobbying and other actions that influence lawmaking can become signals themselves, and the law is simply an equilibrium outcome. The analysis is used to discuss flag desecration, censorship, voting, and antidiscrimination laws.

A Theory of Customary International Law

Abstract: This article presents a theory of customary international law ("CIL") that seeks to sort out the many well-known difficulties with standard accounts of CIL. The theory uses simple game theoretical concepts to explain how what we call CIL arises, why nations "comply" with CIL as commonly understood, and how CIL changes. This theory differs from the standard account of CIL in several fundamental respects. It rejects the usual explanations of CIL based on opinio juris, legality, morality, and related concepts. States do not comply with norms of CIL because of a sense of moral or legal obligation; rather, their compliance and the norms themselves emerge from the states' pursuit of self interested policies on the international stage. In addition, the behaviors associated with CIL do not reflect a single, unitary logic. Instead, they reflect various and importantly different logical structures played out in discrete, historically contingent contexts. Finally, the theory is skeptical of the existence of multilateral behavioral regularities that are typically thought to constitute CIL. The article tests the theory using case studies from four traditional areas of CIL: neutrality, diplomatic immunity, prize, and maritime jurisdiction. We find that most purported rules of CIL reflect pure coincidence of interest, rather than international cooperation, and that the rest are best explained as the outcome of repeated bilateral prisoner's dilemmas or coercion analogous to the behavior of the monopolist in predatory pricing games. We conclude by examining the implications of our analysis for understanding the role of CIL in domestic constitutional arrangements, the function of international treaties and international organizations, and the status of modern international human rights law.

A Positive Theory of Chapter 11

Abstract: This paper analyzes the voting rules of Chapter 11 using models from noncooperative game theory. Prior work has relied mainly on a model of bargaining between the debtor and a single creditor with perfect information. We expand on this work by considering two-party bargaining with imperfect information, and bargaining (with perfect and imperfect information) among a single debtor and multiple creditors. In addition, prior work has focused on explaining the role of the exclusivity period, the absolute priority rule, and the liquidation floor in Chapter 11 bargaining. We also consider the role of majoritarianism and supermajoritarianism, bicameralism, and classification, and the desirability of allowing creditors to purchase claims from each other.

Shaming White Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines

Abstract: From stigmatizing publicity to coerced gestures of public contrition to ritualized debasement ceremonies, shaming penalties are on the rise in American law. This paper considers the feasibiltity and value of such penalties for federal white collar offenders. It develops a theoretical model that connects the deterrent efficacy of such penalties to their power to signal the undesirable propensities of wrongdoers and the desirable propensities of citizens who shun wrongdoers. It also considers how the efficiency of such penalties is affected by their power to express publicly valued social meanings. Finally, it examines practical issues relating to the incorporation of shaming penalties into the Federal Sentencing Guidelines.

Notes toward a Theory of Customary International Law

Abstract: Customary international law (CIL) is one of two primary forms of international law, the other being the treaty. CIL is typically defined as a "customary practice of states followed from a sense of legal obligation." Conventional wisdom considers it a pervasive feature of international law and international relations. Governments take care to comply with CIL, and often incorporate its norms into domestic statutes. National courts sometimes apply CIL as a rule of decision, or a defense, or a canon of statutory construction. Nations argue about whether certain acts violate CIL. Violations of CIL are grounds for war, or an international claim, or a diminution in international reputation. Legal commentators view CIL to be at the core of the study of international law. And yet CIL remains an enigma. It lacks a centralized lawmaker, a centralized executive enforcer, and a centralized, authoritative decision maker. The criteria for the identification of CIL are controversial and difficult to specify. The content of CIL is often in the eyes of the beholder and frequently tracks the interests of powerful nations. We lack a convincing account of how particular CIL rules originate. We do not really know why nations comply with CIL. And we lack a good explanation for the many changes in CIL rules over time. There is no convincing positive account of how these changes occur. And there is no convincing normative account of how these changes—which are frequently premised on "violations" of CIL—are consistent with the view that CIL is law. Finally, the standard definition of CIL—(1) custom (2) followed from a sense of legal obligation—raises perennial, and largely unanswered, questions. This essay sketches the outline of a theory of CIL that sorts out many of these difficulties. The theory has two features that distinguish it from others. First, it seeks to understand CIL on the basis of rational-choice principles rather than on the basis of notions of legality or morality. Second, it suggests that the prevailing judicial and academic treatment of CIL as a unitary phenomenon is a mistake. The label "CIL" subsumes a diverse group of relations and behaviors that are best analyzed separately.