Duke Law Journal 

About: Duke Law Journal is an academic journal. The journal publishes majorly in the area(s): Supreme court & Administrative law. It has an ISSN identifier of 0012-7086. Over the lifetime, 1358 publications have been published receiving 15617 citations.

How to Influence States: Socialization and International Human Rights Law

Abstract: Regime design choices in international law turn on empirical claims about how states behave and under what conditions their behavior changes. We suggest that a central problem for human rights regimes is how best to socialize "bad actors" to incorporate globally legitimated models of state behavior and how to get "good actors" to do better. Substantial empirical evidence suggests three distinct mechanisms whereby states and institutions might influence the behavior of other states: coercion, persuasion, and acculturation. Several structural impediments preclude full institutionalization of coercion- and persuasion-based regimes in human rights law. Yet, inexplicably these models of social influence predominate in international legal studies. In this Article, we first describe in some detail the salient conceptual features of each mechanism of social influence. We then link each of the identified mechanisms to specific regime design characteristics - identifying several ways in which acculturation might occasion a rethinking of fundamental regime design problems in human rights law. Through a systematic evaluation of three design problems - conditional membership, precision of obligations, and enforcement methods - we elaborate an alternative way to conceive of regime design problems. We maintain that (1) acculturation is a conceptually distinct social process through which state behavior is influenced; and (2) the regime design recommendations issuing from this approach defy conventional wisdom in international human rights scholarship. This exercise not only recommends reexamination of policy debates in human rights law; it also provides a conceptual framework within which the costs and benefits of various design principles might be assessed. Our aim is to improve the understanding of how norms operate in international society with a view to improving the capacity of global and domestic institutions to harness the processes through which human rights cultures are built.

Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

Abstract: Over its thirteen year history, the negotiated rulemaking process has yielded only thirty-five final administrative rules. By comparison, the federal government publishes over 3,000 final rules each year through the ordinary notice-and- comment process. Why have federal agencies relied so little on negotiated rulemaking? I examine this question by assessing the impact of negotiating rulemaking on its two major purposes: (1) reducing rulemaking time; and (2) decreasing the amount of litigation over agency rules. My analysis suggests that the asserted problems used to justify negotiated rulemaking have been overstated and that the limitations of negotiated rulemaking have been understated. Negotiated rulemaking by all accounts consumes more resources for agencies and stakeholders than does notice-and-comment rulemaking, yet it fails to yield any significant impact on the levels of litigation or controversy which normal rulemaking occasionally engenders. Indeed, 6 out of the 12 negotiated rules adopted by the U.S. Environmental Protection Agency (EPA) have resulted in court challenges, a litigation rate higher than the overall rate for EPA rules. My findings draw into question the growing call among scholars and policymakers for reforming the regulatory process to rely more extensively on formal negotiated rulemaking, suggesting that formal negotiation can actually expand the range of potential conflicts in the regulatory process rather than reduce them.