Legislative Borrowing

By Linos, Katerina | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Legislative Borrowing


Linos, Katerina, Proceedings of the Annual Meeting-American Society of International Law


Judges, politicians, and academics vigorously debate whether courts should borrow ideas from abroad. (1) In the United States, the debate centers on the concern that referencing foreign law allows judges to impose the views of a minority of liberal elites on the majority of ordinary Americans. (2) However, foreign law typically enters the United States not through the judiciary, but through the elected branches. (3) My research project explores the overlooked process of legislative borrowing, and shows that foreign law often enters the United States because of, not despite, citizens' wishes. (4)

If references to foreign laws only appealed to elites, and offended ordinary Americans, as we often assume, we would expect elected politicians to behave very differently from judges. We would expect politicians to ignore what happens abroad, and downplay any similarities between foreign models and their reform proposals, lest they drive away the voters on whose support they depend. From this perspective, it would be puzzling for a president to use foreign models to promote his signature initiative. And yet President Obama did exactly this in introducing the Affordable Care Act. More specifically, President Obama and Democrats in Congress have sought to persuade swing voters of two things: that universal health care is not a radical socialist pipe dream, but a mainstream idea, and that it can succeed financially in times of tight budgets. Obama used foreign models to develop both points. To justify that the proposed expansion in health care coverage was not radical, Obama highlighted the plight of the uninsured and argued, "We are the only democracy--the only advanced democracy on Earth--the only wealthy nation--that allows such hardship for millions of its people." (5) To explain that this expansion would be affordable, Obama claimed that "we spend one and a half times more per person on health care than any other country, but we aren't any healthier for it." (6) Members of Congress eagerly picked up on these themes. The legislative record contains hundreds of references to foreign models, with many Democrats repeating and elaborating on Obama's claims, and many Republicans contesting these.

I argue that references to foreign laws are plentiful in the legislative record because foreign models resonate with ordinary Americans, not in spite of this. My theory is built on the intuition that foreign models can serve as benchmarks against which voters can judge their government and its laws. Voters often worry that politicians are not competent and develop poorly thought-out laws that are unlikely to succeed. Voters also worry that politicians design laws in ways that enrich special-interest groups and cater to fringe ideologues. Information that foreign governments have adopted similar laws can help politicians signal that their decisions are competent and mainstream. Foreign models have two distinct advantages as compared to endorsements from domestic groups, such as industry associations, unions, think tanks, and academics. First, because it is costly to adopt a law, its adoption by foreign governments can send especially strong signals that they expect a proposal to succeed. Second, foreign governments are outsiders; they don't stand to benefit directly from election results or policy choices in a neighboring state. When many foreign countries make the same policy choice, and when an international organization articulates this consensus and promotes it as the dominant international model, the influence of foreign models is at its peak.

To examine whether foreign models resonate with ordinary Americans, I conducted public opinion experiments on representative samples of the U.S. public. Experimental methods allow us to identify causal pathways clearly, and to separate citizens' baseline views on a particular policy from citizens' views on the same policy once information from abroad is presented. These experiments show that foreign models resonate with a wide range of Americans. …

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