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Panglossian transnationalism.

Abstract

Transnationalism represents a major leap forward in our understanding of events that cross national borders. At the same time, though, the transnational approach is woefully incomplete. Students looking for intellectual coherence are frequently disappointed. And even a cursory glance at news headlines makes it abundantly clear that despite this major conceptual advance, the worm has not become any happier. I worry that transnational law has become too optimistic, perhaps even naive, about what it can accomplish.

The argument is structured in three parts. Part I simply seeks to understand what "transnational law" actually means, by developing a typology that systematizes not only sources of law, but actors engaged in cross-border events. Part II attempts to draw three principal lessons from this reality: (i) transnational law, for all of its glamour, is often little more than national law applied to cross-border events; (ii) forays beyond the national have too often been either been ineffectual or perceived as disenfranchising, and (iii) the transnational approach is being hampered by its reliance on liberalism and process theory.

Part III argues for a counterintuitive and ironic proposition: Comparatists may lead a way out of transnationalism's morass. The comparative method presents precisely the tools that lead to a deeper understanding of the similarities and differences among national laws, and between national laws and other constructs such as supranational and international law. Only through understanding this reality can we begin to renew our justifications for the legitimacy of meaningful international law and institutions.
TABLE OF CONTENTS

I. INTRODUCTION

 II. FROM BOUILLABAISSE TO TYPOLOGY
     A. Rationale: Limits of International Law
     B. Definitions and Rhizomes
     C. Actors, Sources, Typology

 II. FROM TYPOLOGY TO PESSIMISM
     A. The Centrality of National Law
     B. Forays Beyond the National
     C. Constraints of Liberalism and Process Theory

III. DO COMPARATISTS GIVE CAUSE FOR OPTIMISM?
     A. Stepping Up the Project
     B. Anti-Democratic Bugaboo

 IV. CONCLUSION


Pangloss admitted that he had always suffered horribly; but having once maintained that all was wonderful, he continued to maintain it and did not believe it.

--Voltaire, Candide (1)

I. INTRODUCTION

Transnationalism represents a major leap forward in our understanding of events that cross national borders. Faced with the narrow strictures of classically-defined international law which centers on nation-states, (2) beginning in the 1950s, brilliant scholars espousing a transnational approach broadened the realm of inquiry. They emphasized not only the possible variety of actors, public and private, that engage in cross-border conduct, but also the plethora of laws that purport to regulate these activities. (3) Such a perspective is of immense pedagogical use, since it exposes students to a complex of actors and sources present when advising clients on international transactions or events. (4) And it has led to a series of new and insightful scholarly works espousing the descriptive and normative value of transnational laws and processes. (5)

At the same time, though, the transnational approach is woefully incomplete. Students looking for intellectual coherence are frequently disappointed. And even a cursory glance at news headlines makes it abundantly clear that despite this major conceptual advance, the world has not become any happier: Armed conflict, labor and human rights abuses, divergence between north and south, and environmental disasters, to name just a few, emerge every day. How can this be? Admittedly, blame for the world's ills cannot be placed uniquely at the feet of transnationalism. Yet the analytical framework it provides is, I fear, at least part of the problem. In particular, I worry that in our zeal to embrace transnationalism with all of its rhetorical appeal, we have lost sight of the fact that the concept is incomplete, relies on troubling assumptions, and in the end represents only a very small step toward developing meaningful international laws and institutions from which real solutions might emerge.

Strangely enough, I am reminded of Pangloss, one of Voltaire's most colorful personages. "Monsieur Pangloss," putatively, "the most profound metaphysician of Germany," (6) "taught metaphysico-theolog-cosmo-nigology. He proved admirably that there is no effect without a cause, and that, in this best of all possible worlds, the country house of Monseigneur the Baron was the handsomest of country houses, and Madame the best of possible Baronesses." (7) I worry that transnational law has become an example of "metaphysico-theolog-cosmo-nigology," a field that has become too optimistic, perhaps even naive, about what it can accomplish in today's world. In making this argument, I will necessarily question assumptions--to look at the transnational approach from first principles rather than fancy jargon and ingrained habit, much like a child or a tourist would look at architecture for the first time. (8)

The Article is structured in three parts. Part I simply seeks to understand what "transnational law" actually means. At one level, this appears to be a trivial exercise. But careful observation suggests that it is a deceptively difficult question, largely because other terms--"international," "supranational," and "comparative"--clutter the picture. To distinguish among these concepts, I develop a typology using a matrix that systematizes not only sources of law, but actors engaged in cross-border events.

Part II attempts to draw some lessons from this reality, shedding light on several phenomena. First, I find that national law plays by far the most significant role in mediating cross-border events. Put simply, transnational law, for all of its glamour, is often little more than national law applied to cross-border events. In a landscape dominated by national laws, it becomes altogether unsurprising that there is so much focus on extraterritoriality, imbalances among nations, and regulatory races to the bottom. Second, forays beyond the national have too often been either ineffectual or perceived as disenfranchising, for example, in their privatization of public functions or unfriendliness to the developing world. Third, the transnational approach is being hampered by its reliance on liberalism and process theory.

But given transnationalism's limitations, can any approach lead away from reliance on national laws toward greater internationalism? Part III argues that comparative law may lead a way out of the morass. The idea that comparative law could rescue anything from malaise is, admittedly, a counterintuitive and ironic proposition. After all, transnational law is in vogue and comparative law is not. I argue, however, that the comparative method (9) presents precisely the tools that lead to a deeper understanding of the differences among national laws, and between national laws and other constructs such as supranational and international law. Only with this knowledge can we look for similarities and common ground among legal systems. In doing so, we can begin to renew our justifications for the legitimacy of international qua international law, hopefully one day to place less emphasis on clunky workaround doctrines such as extraterritoriality. Perhaps oddly, from comparatists' insights may emerge a chance at finally developing meaningful international laws and institutions.

II. FROM BOUILLABAISSE TO TYPOLOGY

"Transnational" is a chic term, but defining it is far from elegant. Much like the word "postmodern," the "term gets [used] everywhere, but no one can quite explain what it is." (10) By first understanding what "transnational" is--and more importantly, what it is not--we can get a sense of why it might be a Panglossian venture.

A. Rationale: Limits of International Law

To a great extent, transnationalism has emerged from the limits of international law. As conventionally conceptualized, international law revolves around the nation-state. It is inter-national: a product of the "Westphalian state-centered system of world law" (11) which maintains that "the states are the only subjects of international law, a theory implicit in the alternative description 'law of nations.'" (12) More specifically, there are two components: public and private international law. The former governs relations among nations, generally via treaty or custom; (13) the latter, akin to conflict of laws, determines which national law to choose. (14) In both situations, the basic conceptual framework is the nation-state. Despite some significant achievements obtained within the conventional paradigm, (15) by the middle of the twentieth century commentators began raising two major criticisms of Westphalian-inspired international law: that it is neither descriptively accurate, nor represents a normatively desirable state of affairs.

The first critique has been partly historical and partly forward-looking. It points out that the nation-state is a relatively new phenomenon that does not encompass legal sources dating back to medieval times such as the international law merchant, or lex mercatoria. (16) Looking forward to more recent developments, commentators also emphasize the increasing prominence of non-state actors such as intergovernmental organizations (IGOs), nongovernmental organizations (NGOs), corporations, and individuals--actors whom classical international law did not effectively envisage. (17) Put simply, "[i]n the second half of the twentieth century, we witnessed the rise of numerous legal systems outside of, and above, the national ones." (18) This perspective ties in well with two phenomena that are currently in vogue: Liberalism which "focuses on individuals and other nonstate actors in seeking to explain international behavior," (19) and globalization which can to a significant extent be "understood as a process of denationalization." (20) In sum, classic international law does not comfortably countenance the inevitable blending of international and national, (21) public and private. (22)

The second criticism of international law has been more prescriptive, suggesting that the regime created by traditional international law is normatively undesirable. This notion is phrased different ways. Some writers worry that "traditional international law ... is essentially Europocentric" (23) or more generally favors the developed world. (24) Others lament that it deemphasizes the individual, and hence slights human rights. (25) Perhaps the most eloquent exponent of this critique is Wolfgang Friedmann. He argues sweepingly for a "new co-operative or welfare type of international law" (26) that goes beyond traditional concepts such as diplomacy. To address a plethora of social ills, he advocates using new organizational forms that reframe the notion of sovereignty:
   The explosive growth of the world population, greatly widening the
   already enormous gap between the standards of living of a minority
   of the rich and a majority of poor nations, the growing pollution
   of the atmosphere and the oceans, accompanied by the partition of
   increasing sectors of the seas by coastal nations, the increasingly
   close connection between the expansion of international transport
   and communications and the international spread of disease, and
   above all the increasingly ominous consequences of man's
   interference with the environment--these and many other matters
   have become the first priorities in international relations. It
   would therefore seem timely to reorder our priorities and to pursue
   progress in international organization--which inevitably means a
   great expansion and intensification of the international law of
   cooperation--in the areas in which the sovereignty of the national
   state may be bypassed rather than overcome by frontal attack. (27)


Taken at face value, then, the critique of traditional international law--namely, that it is both descriptively inaccurate and normatively inadvisable--seems driven by good intentions.

B. Definitions and Rhizomes

From these successful critiques evolved the notion of transnationalism. The canonical definitional work remains Philip Jessup's fittingly titled book, Transnational Law. (28) Observing that "the term 'international' is misleading since it suggests that one is concerned with the relations of one nation (or state) to other nations (or states)," (29) Jessup famously proposes "the term 'transnational law' to include all law which regulates actions or events that transcend national frontiers. Both public and private international laws are included, as are other rules which do not wholly fit into such standard categories." (30) As one writer observes with regard to Jessup's project:
   The legal rules and process applicable to situations that cut
   across national lines must now be sought in both public and private
   international law and, to a significant degree, in new bodies of
   law that do not fit into either traditional division. As examples
   of the latter, Jessup cited the growing importance of European
   Community law, maritime law, international administrative law, war
   crimes, the law of economic development and the rules applicable to
   multinational enterprises. (31)


Jessup's attempt seems holistic. (32) Indeed, commentators note his efforts "to widen the ambit and goals of international law" (33) by underscoring "the importance of a wider storehouse of rules and avoidance of the dogmas and fictions associated with traditional international law." (34) Jessup's contribution is significant, and scholars have successfully proposed definitions that closely parallel his. Note, for example, the Jessupian undertones to the definition in one distinguished casebook when it observes that how a nation,
   controls immigration or treats foreign-court judgments or seeks to
   regulate foreign conduct threatening its interests, necessarily
   affects other countries and their nationals.... Together with
   public international law and with regulation by international
   organizations, such phases of national law form a complex of rules,
   policies, principles, attitudes, and processes bearing upon
   relationships among nations or among their nationals. It is that
   complex to which this book refers as "transnational legal problems"
   or "transnational law." (35)


Such expansion, while a conceptual breakthrough, has come at significant cost: scope of mind-numbing breadth. (36)

Perhaps this enormously expansive starting point explains why definitions in subsequent works have been, to put it colloquially, all over the map. One definition characterizes transnational law as international and foreign law; (37) another as an amalgam of international, foreign, and domestic law. (38) Still another defines transnational law as "law beyond national laws in a broad sense. This comprises public and private international law (i.e., between nations, such as international conventions) as well as supranational structures and regimes (i.e., above nations, such as the European Union)." (39) Yet a different formulation suggests transnational law includes "both the international and comparative dimensions of law." (40) Some treatments add foreign and domestic laws to international and comparative law. (41) Still others consider choice of law--either alone, (42) or in conjunction with comparative law (43)--to be the defining characteristic of transnational law.

As if all of this were not confusing enough, there are still other formulations. Some commentators seem to equate transnational law with the lex mercatoria (44) or at least to include such norms in their definition. (45) Others use the term more impressionistically "to emphasize global interdependence rather than political competition suggested by the older, and more familiar terms." (46) In a similar vein, the concept of transnationalism has been used to emphasize commonalities among national laws. (47) Another suggestion is to allow elasticity in meaning, such that the term "may be used in a broad sense ... to refer to any phenomena (including ideas) that cross national frontiers, or in a narrow sense, to refer only to cross-border relationships or activity between individuals, or between individuals and state governments." (48) The possibilities are as confusing as they are seemingly endless.

Thankfully, in a series of thoughtful and influential articles on transnational law, Harold Koh has taken the discussion to a new level. Broadly speaking, Koh's framework is similar to Jessup's in denoting transnational law as a "hybrid body of private and public, domestic and international law." (49) Yet Koh goes well beyond this level of generality to specify two dimensions of transnationalism: the actors involved, and the sources of law.

First, he emphasizes that unlike traditional international law, transnational law involves not only nations and international fora, but private actors and domestic fora:
   What makes transnational public law litigation unique, however, is
   its melding of two conventional modes of litigation that have
   traditionally been considered distinct. In traditional domestic
   litigation, private individuals bring private claims against one
   another based on national law before competent domestic judicial
   fora.... In traditional international litigation, nation-states
   bring public claims against one another based on treaty or
   customary international law before international tribunals of
   limited competence. (50)


Such a formulation is, of course, similar to that advocated by Jessup (51) and Friedmann, (52) as well as by several recent commentators. (53)

Second, and more path breaking, Koh places particular and detailed emphasis on the process of interaction between domestic and international sources of law:
   Perhaps the best operational definition of transnational law, using
   computer-age imagery, is: (1) law that is "downloaded" from
   international to domestic law: for example, an international law
   concept that is domesticated or internalized into municipal law ...;
   (2) law that is "uploaded, then downloaded": for example, a rule
   that originates in a domestic legal system ...; and (3) law that is
   borrowed or "horizontally transplanted" from one national system to
   another.... (54)


Koh thus argues for the permeability between domestic and international law. (55) A particular focus, though, is how transnationalism domesticates international norms into national legal systems:
   Around the world, public law concepts are emerging, rooted in
   shared national norms and emerging international norms, that have
   similar or identical meaning in every national system: for example,
   the concept of "cruel, inhuman or degrading treatment" in human
   rights law, the concept of "civil society" in democracy law, the
   concept of "the internally displaced" in refugee and immigration
   law, or the concept of "transborder trafficking" of drugs and
   persons in criminal law. (56)


Put succinctly, transnational process theories "extend beyond the horizontal focus of traditional process theories to study the vertical process of interaction and interpretation whereby international norms become domesticated and internalized into domestic law." (57) There is thus both a horizontal dimension--a panoply of public and private actors and fora, and a vertical one--different sources of law. (58) Koh's work has had extraordinary influence, with a range of distinguished scholars expounding theories that build on his careful analysis. (59)

The work that ranges from Jessup to Koh and beyond has been extremely valuable for several reasons. Most simply, it highlights that the nation is clearly not the only actor on the international scene. (60) More subtly, it emphasizes the very complex interactions among sources of law and fora in which disputes are resolved. (61) The importance of these contributions cannot be overemphasized. Transnationalism at least introduces an engaging, albeit skeletal, pedagogical structure. Classes that span public and private boundaries, such as human rights or international business transactions, can then conveniently be framed using this framework. (62) Perhaps the most fundamental and thought-provoking contribution that the work on transnationalism offers, however, is philosophical. The notion of a non-linear and often non-hierarchical transnational legal system (63) presents itself as an incarnation of a "rhizome." Introduced into philosophical circles by Gilles Deleuze and Felix Guattari, the rhizome becomes a metaphor for a nonhierarchical, nonlinear semiotic system: "unlike trees or their roots, the rhizome connects any point to any other point, and its traits are not necessarily linked to traits of the same nature; it brings into play very different regimes of signs, and even nonsign states." (64) As they describe it in their characteristically postmodern prose:
   Unlike a structure, which is defined by a set of points and
   positions, with binary relations between the points and
   biunivocal relationships between the positions, the rhizome is
   made only of lines: lines of segmentarity and stratification as
   its dimensions, and the line of flight or deterritorialization as
   the maximum dimension after which the multiplicity
   undergoes metamorphosis, changes in nature.... In contrast
   to centered (even polycentric) systems with hierarchical modes
   of communication and preestablished paths, the rhizome is an
   acentered, nonhierarchical, nonsignifying system ... (65)


As odd as the comparison might seem at first, notice the similarity to Deleuze and Guattari's description in a passage from one of Harold Koh's articles:
   Look at the law of transnational contract, particularly oil
   development agreements between multinational oil companies and
   developing nations. Are these more like treaties (traditional
   international law) or more like contracts (traditional domestic
   law)? The answer: it is not clear. Or the law of transnational
   tort--the Bhopal incident, for example--should that be governed
   primarily by Indian law, United States law, or by some emerging
   international standard of multinational corporate social
   responsibility? Again, not clear. Or the law of transnational
   crimes--terrorism, drug trafficking, trafficking in persons--is
   that fundamentally a domestic subject, or a subject regulated by
   international regimes, or does it lie somewhere in between? (66)


Koh's description of difficult issues in transnational contracts, torts and criminal law are a far cry from a simple linear, grid-like analysis that one might find in an indexed legal outline. Much like Deleuze and Guattari, then, Koh seems to be questioning the representational paradigm in traditional international law circles that clearly delineates public from private, international from national. In and of itself, this is a masterful contribution that draws us into a rich discussion about what transnationalism might be.

At a more practical, policy-driven level, though, I am worried. As it stands, the concept of transnationalism seems very much like a mish-mash of categories, a bouillabaisse that has different actors, sources, and fora thrown in. Can a concept with so many different definitions (67) be analytically coherent or useful? Is the intellectual tradition that begins with Jessup or Friedmann too deconstructionist in its desire to break down categories? (68) Does the breaking down of categories lead to a concept too broad to become workable? (69) Perhaps most importantly, is this theory simply a descriptive one that seems resigned to incremental improvements via process? If so, does it pay enough attention to who holds the power among the actors in the process? Is it too naive, for example, in downplaying the role of hierarchy and power? (70) To what extent do actors who benefit from the status quo wish to make the process look as intricate as possible, perhaps unwittingly aided by transnationalism's breadth and confusion? Without adequately addressing these questions, transnationalism may remain an intellectually unsatisfying concept that has limited impact in effecting social change.

C. Actors, Sources, Typology

Perhaps unsurprisingly, Jessup criticizes the "innate instinct for orderliness which leads the human mind endlessly to establish and to discuss classifications and definitions to evolve theories to justify them." (71) But, given a belief that insight might emerge from a simple typology, this is precisely what I will attempt to do. My goal is not to be overly precise or exhaustive, but rather to show that a basic framework can be derived from first principles--looking at actors and sources. (72) Labels, if desired, can come later.

To begin, we can try to characterize actors engaged in cross-border events along two broad categories, public and private, and several subcategories within each. Public actors consist not only of nation-states, but also supranational organizations, as well as inter-governmental organizations (IGOs). The European Union (EU) is arguably the only supranational entity in that it mimics a government. It includes executive, judicial, and legislative organs; (73) operates, at least ostensibly, by majoritarianism, rather than simple consent; (74) and perhaps most pragmatically, its laws are, at least in theory, binding on its constituent nations. (75) IGOs, which do not display these characteristics, include the United Nations (U.N.) and its various agencies, the Organization of American States (OAS), the World Bank, (76) and the like. Private actors consist of non-governmental organizations (NGOs), (77) corporations, and individuals. There are thus six actors who might be engaged in cross-border events: three public (nation, supranational organization, and IGO), plus three private (NGO, corporation, and individual). (78)

Creating a typology among sources is trickier. I try to explore this dimension by looking at both public and private sources of law. (79) To understand the first, I rely on a continuum that maps the source of law applicable to a cross-border event based on the amount of sovereignty a nation must give up. (80) At one extreme, where the state has not given up sovereignty, are national sources (81)--both domestic and foreign. (82) The canonical example would be extraterritorial application of national laws. At the other extreme would be a supranational government which would presumably have the characteristics of a national government, but operate across nations that have given their sovereignty up to this institution. For a variety of reasons, it is both unlikely and undesirable for such an entity to emerge on a global scale. (83) These two categories bound the sources at either end.

Between national laws and supranational ones, there are two essential intermediate categories. (84) The first is traditional international law, where the state relinquishes some sovereignty, but only through consent. (85) These are, of course, the classical sources: treaty where consent is explicit, (86) or custom where it is implicit. (87) The second, more nebulous, source is law that emanates from IGOs such as the U.N. and the WTO. Within IGOs, there is immense variation. Think, for instance, of the extremely limited impact of a U.N. General Assembly Resolution versus the binding decision of a WTO or NAFTA tribunal. Over time, to the extent these entities develop distinct organs, enforce their decisions, and rely on majoritarianism, they will more closely resemble bounded supranational entities. (88)

Finally, there are also private sources of law where the source is not linked to a sovereign at all, notably norms in business transactions. (89) The lex mercatoria dates to medieval times (90) and prominent modern examples include International Commercial Terms (Incoterms) and the Uniform Customs and Practice for Documentary Credits (UCP), promulgated by the International Chamber of Commerce (ICC). (91) New conceptualizations of private sources of law, such as "lex informatica," (92) are also evolving. (93)

Five sources of law are thus applicable to cross-border events: four public (national, international, intergovernmental, and supranational), and one private (trade custom). These actors and sources can be represented along a simple matrix:

[GRAPHIC OMITTED]

How do the usual labels fit into the picture? With public international law, classically defined, the actor is the nation, and the source of law is treaty or custom (94)--it thus fits as a box near the upper left of the grid. Private international law, which considers what national law to choose, is slightly more complicated. Here, actors are typically corporations and individuals, whereas the source is generally national law, though some international law, such as the Hague Conventions on Private International Law, (95) also might apply--as such, private international law occupies at least part of four squares near the top right of the matrix.

Comparative law can also be added to the mix as a method to compare and contrast different sources of law. (96) This exercise of course traditionally occurs between or among national laws; for example, analyzing similarities and differences between U.S. and Chinese antitrust law, or among Indian, Brazilian, and Russian tort law. But it can also occur between and among national, international, inter-governmental, supranational, and even private sources of law; for instance, between the Convention on the International Sale of Goods (CISG) and Italian contract law, or among dispute resolution methods of the International Chamber of Commerce (ICC), WTO, and the courts of Argentina. Any permutation is possible. Visually, I represent the comparative method using two double-headed arrows: a horizontal one to represent comparisons within a category and a vertical one to denote comparisons across categories. These labels can now be added to the matrix:

[GRAPHIC OMITTED]

What is striking is the amount of empty space: the wide range of actors and sources these traditions simply do not cover. Thus, one way to conceptualize transnational law is as a residual category that has emerged to cover the blank space in the matrix--an amalgam whose essence captures "actions or events that transcend national frontiers and that do not fit into the standard categories of public or private international law, at least if they are taken as mutually exclusive categories." (97) As such, the concept serves as a useful shorthand.

But there are some serious drawbacks. Most obviously, simply looking at the matrix makes it thoroughly unsurprising that trying to cover such expansive terrain has led to a bouillabaisse of broad, often contradictory, definitions. (98) Focusing on a basic typology with two dimensions--actors and sources--will hopefully give us more precise insight than obsessing over labels.

II. FROM TYPOLOGY TO PESSIMISM

What implications might be drawn from Part I's typology? There is perhaps an obvious pedagogical lesson: even if one were to cover the more traditional areas such as public international law, private international law, and comparative law in separate classes, (99) there still remains a vast terrain of blank space on the matrix that introductory courses typically either do not cover or skim over necessarily at a superficial level. It might, thus, perhaps be worth offering a course on transnational qua transnational law, defined as the residual that these more traditional courses do not discuss. (100)

Notwithstanding this curricular observation, transnational law unfortunately still has a "kitchen sink" feel. (101) It would be instructive to prioritize what sources on the matrix really matter. I contend, perhaps somewhat counter-intuitively, that transnational law, for all of its breadth, is often little more than national law applied to cross-border events. In a landscape dominated by national laws, a focus on extraterritoriality, regulatory races to the bottom, and imbalances among nations becomes altogether unsurprising.

To be sure, there have been notable forays beyond national law and institutions. However, these attempts are prone to two central criticisms that Part II will explore. One is simply that they are too often ineffectual. The other is that when they do have bite, they are either unfriendly to the developing world, or private-public functions, or both. Finally, I argue that notwithstanding these criticisms, the scholarship extolling the transnational approach may be well intended in encouraging these attempts; however, it must overcome its dangerous reliance on liberalism and process theory.

A. The Centrality of National Law

Despite the assumptions about the role played by international law and institutions in mediating cross-border transactions, the great irony is that national law still has a far more significant role. Examples abound. In the realm of international business transactions, take fields such as corporate law, securities regulation, bankruptcy and antitrust--despite efforts to internationalize these areas, they remain squarely within the purview of national law. Also governed by national law is, of course, the enforcement of foreign judgments. (102)

To be sure, there are areas in business law where domestic law is not the sole source. (103) Notable areas include tax, intellectual property, and the sale of goods. However, despite the international character of tax treaties, the Trade-Related Aspects of IP Rights (TRIPs) agreement, and the Convention for the International Sale of Goods (CISG), in these areas, too, most of the law is national. Tax treaties are limited, TRIPs is a small player when compared to national intellectual property regimes, and the CISG omits large areas of contract law such as fraud, duress, mistake, and unconscionability. Public law areas are not immune either: "human rights protection is first and foremost national," (104) and the attack against international criminals resides primarily with national laws. (105)

To a significant extent, then, transnational law--the vast empty space--has been substantially confined to that first row of the matrix, national law. Simply put, transnational law consists largely of domestic law applied to cross-border transactions. As Matthias Reimann succinctly puts it, "[e]ven in transboundary issues national laws continue to matter, and, very often, they are still what really counts." (106)

The current malaise in international law becomes unsurprising once one appreciates the extent to which national law predominates in regulating cross-border events. First, amid a dearth of meaningful international, intergovernmental, or supranational law, an emphasis has been placed on alternative solutions such as extraterritoriality. This workaround concept, unfortunately, is replete with intractable problems such as trying to assess when a sufficient threshold of "conduct" or "effect" is met to somehow justify extraterritorial application of a national law. In Transnational Law, Jessup observed that "[i]t would be quite unrealistic to say that the fiction of extraterritoriality is outmoded"; (107) unfortunately, this observation remains valid fifty years later. Tellingly, one contemporary scholar even denotes extraterritoriality as the defining characteristic of transnationalism: "transnational law looks at the foreign reach of domestic law, the central issues being extraterritoriality and applicability to foreigners. In other words, the question in transnational law is what is the out-of-state reach of laws governing antitrust, securities, tax, and civil rights, and of procedural and jurisdictional law?" (108) In one article, Ann-Marie Slaughter even defines transnational law as "simply national law that is designed to reach actors beyond national borders: the assertion of extraterritorial jurisdiction." (109)

Second, the predominance of domestic law explains why conflict of laws is so crucial. Taking into consideration the scarcity of international qua international law, the locus of attention must shift to determine what domestic law applies--in a sense, then, conflict of laws serves as a gap-filler for the paucity of other sources. The conflicts rules themselves, or private international law, fittingly enough, are themselves largely national laws. (110) After all, one generally looks to the national law on conflicts to determine what substantive national law to apply.

Third, the centrality of national law explains more pernicious phenomena as well. A world of disparate national laws, without minimal international thresholds fuels "the familiar phenomenon of the race to the bottom, which engenders lax control of incorporation, shipping flags of convenience, bank secrecy, tax havens, and, of course, lessened protection for labor and the environment." (111) Put simply, private actors seek favorable jurisdictions to minimize liability and tax consequences. And nations too often seem to be competing as if they were engaged in a zero-sum game. Wolfgang Friedmann's observation, made nearly forty years ago, rings sadly true today:
   Not only has the number of national states mushroomed (it is now
   well over double that of a generation ago) but there has never been
   a more intensive race for the concentration of military, political,
   and economic power in the hands of the nation state, big or small.
   Small as well as big powers seek to increase their armaments
   technology, to extend their national boundaries, particularly in
   the seas, and to appropriate to national jurisdiction as much as
   possible, inevitably at the cost of others. (112)


Put bluntly, "state practice continues to assert the ultimate supremacy of national sovereignty over the binding force of international law." (113) Or, in the words of one commentator, "although we can trace considerable progress in international law in the last half-century, this community is in a primitive, almost anarchical state where the exercise of force still prevails." (114) To be sure, such tensions cannot be entirely avoided, but they could be significantly mitigated if international law held greater sway. In a world dominated by national laws, however, there is hardly cause for optimism.

B. Forays Beyond the National

To be sure, there have been forays beyond the national, but these can be questionable for an altogether different set of reasons. Overall, many view the sources of international law as "notoriously squishy." (115) At one level, of course, this problem is obvious because "international law in its purest sense does not enjoy the support, forceful or otherwise of any single organized regime." (116) After all, it would not be much of an exaggeration to say that custom and treaties do not have force until they are internalized into national law: custom as federal common law, (117) non self-executing treaties through implementing legislation, (118) and even self-executing treaties through domestic judicial interpretation. (119) The most recent U.S. Supreme Court opinion on the interpretation of treaties only reinforces this point. (120)

However, even as international sources struggle to assume independent significance, the outcome of the struggle may be problematic. To the extent that custom develops through consensus among national courts, the risk is that "[c]ourts from more powerful nation states, who participate most actively in judicial dialogue, export their own domestic norms on a given issue to courts in weaker states." (121) For their part, treaties can be troublesome as well. One question is to what extent an ostensibly consensual treaty really reflects power relations among its signatories. (122) As just one example, consider the proliferation of bilateral investment treaties (BITs), often between large developed nations and small developing ones, at the expense of multilateral treaty-based regimes. The problem today is no different from that Wolfgang Friedmann outlined nearly forty years ago: "the existing rules of international law have been overwhelmingly developed by the nations that today are in the position of the 'haves' and therefore tend to favour a position which the economically underprivileged states of today seek to modify." (123)

Consider also that given the dearth of enforcement mechanisms in international law, signing a treaty can merely serve as a public relations ploy. Some new empirical research comparing the effects of adhesion to treaty regimes reveals this subtle problem. Consider work by Oona Hathaway suggesting that notwithstanding "the voluntary nature of international treaty law ... [and] the frequent absence of any central enforcement power ... international treaty law profoundly shapes state behavior." (124) The central point here is the counterintuitive nature of the findings: "generally speaking, the more likely an international agreement is to lead to an improvement in a state's practices, the less likely the state will join it." (125) For instance, "At almost every level, nondemocracies with worse reported torture practices are more likely to commit to the Convention Against Torture than those with better reported practices," (126) while "Countries that have ratified the Vienna Convention, which established mechanisms for international cooperation to address the effects of ozone-depleting chemicals on the ozone layer, actually produce more chlorofluorocarbons (CFCs) on average than those that have not." (127)

The reason for this curious paradox lies in the enforcement: "[c]ountries with strong domestic institutions (and hence strong domestic enforcement) are sometimes more reluctant to bind themselves to international treaties than are countries with weaker institutions, even if their practices are more consistent with the requirements of the treaty." (128) This conclusion seems to provide support for the implementation of more robust inter-governmental institutions since "treaties with stronger transnational legal enforcement will be more effective as a consequence (because states cannot obtain the collateral benefits of membership without accepting the cost of transnational legal enforcement)." (129)

In different ways, other scholars echo this important point--lamenting, for instance, that "[w]hile the preparation of declarations and draft conventions defining the human rights to be respected has proceeded with a considerable degree of success, the same cannot be said of the efforts to provide for the implementation of agreements once entered into" (130) or how "millions of people are victims of human rights abuses each year. One reason for this pathetic record is that human rights enforcement measures are nowhere near developments in the [international human rights] law. As a consequence, states are still able to commit human rights abuses with near impunity." (131) Enforcement thus becomes a central stumbling block.

What, then, has been transnationalism's response? By and large, the movement implicitly concedes this point and relies largely on domestic enforcement mechanisms. Tellingly, Koh defines the "transnational legal process" as "the process whereby an international law rule is interpreted through the interaction of transnational actors in a variety of law-deciding fora, then internalized into a nation's domestic legal system...international legal rules become integrated into national law and assume the status of internally binding domestic legal obligations." (132) Similarly, Ann-Marie Slaughter suggests that "[i]nternational institutions must be embedded in domestic society in some way to be maximally effective," (133) since "the global rule of law depends on the domestic rule of law." (134) Other scholars argue that "transnational law litigation seeks to vindicate public rights and values based upon international norms through domestic legal process," (135) noting that "the institutional foundations of transnational judicial governance are principally domestic--namely, domestic courts and domestic law, including the domestic rules of private international law," (136) and even that in this context "a national court functions as a kind of 'transnational court.'" (137)

Reliance on domestic institutions is a brilliant move in at least two respects. First, from a practical perspective, it avoids the enforcement problem that faces international institutions. As William Aceves summarizes it:
   Transnational law litigation functions within the national legal
   system of member states. Accordingly, it benefits from the
   institutional framework that already exists at the national level
   to enforce the rule of law. National legal systems generally
   provide a more transparent and efficient judicial process than any
   existing international fora. More significantly, national legal
   systems do not face the compliance and enforcement problems that
   plague international tribunals. (138)


Simply put, "the domestication of international law addresses the enforcement problem that has long plagued the international system." (139) More theoretically, reliance on national institutions carefully sidesteps the sovereignty issue, thereby making it less threatening to nations. As Koh puts it, "[n]ation-states are far more likely to comply with international law when they have accepted its legitimacy through some internal process." (140)

Dependence on national fora for enforcement, however, is at best incomplete. In a narrow sense, "though a national court may be purporting to apply international law, its view of international law may be heavily influenced by domestic rules and practices." (141) More broadly, as Wolfgang Friedmann reminds us:
   The role of the national courts in the evolution of international
   law, is, however, severely limited and distorted by the
   predominance of national prejudice, in matters where the interests
   of nationals have to be adjudicated in an international context.
   Few national courts have been able to resist the temptation of
   modifying doctrine when national passions are aroused. (142)


Even if one might quarrel with the bias argument, it remains that countries with less-developed judicial systems will be at a disadvantage, much like they are in the creation of customary international law. (143) It is no coincidence that "the most prominent transnational public lawsuits have recently proceeded before United States courts." (144) Indeed, our "[d]omestic courts are global governors. In the United States federal courts alone, thousands of disputes arising out of transnational activity are heard each year. (145) Domestic courts hardly represent an equal playing field, especially for developing nations whose governments may lack the resources to administer a well-funded national judicial system.

To the extent that one views the bias or inequality concerns as compelling, then, there is a need to do better in developing meaningful and respected, not token or loathed, international enforcement mechanisms. (146) Unfortunately, as Friedmann warns:
   An organic solution of these conflicting pulls can only be hoped
   for, if and when a greater community of interest, expressed by a
   comprehensive public international organization, would supersede
   both the conflicts between public and private interests and those
   of the developed and less-developed countries. This is as yet a
   distant aspiration. (147)


To argue that international enforcement mechanisms are non-existent would be incorrect; indeed, there is an emerging strand of thoughtful commentary on these structures. (148) I argue, however, that international enforcement has either been ineffectual, or perceived as unfair. (149)

Consider the most ambitious inter-governmental organization, the United Nations (U.N.). The General Assembly has little power, other than perhaps serving a ceremonial function. (150) The Security Council, a controversial entity given that its composition essentially reflects the post-World War II legal order, has had little effect, except occasionally to exert indirect political pressure. No matter how laudable the U.N.'s goals, Jessup's conclusion nearly fifty years ago rings sadly true today: "[t]he United Nations' efforts to secure agreement upon a code of offenses against the peace and security of mankind have met with small success." (151) Or as one commentator sums up, with some understatement, "it must be admitted that in using collective action to prevent the use or threat of force or acts of aggression and to restore peace, the record of the United Nations is thus far a meager one." (152)

Entities established under the U.N.'s auspices have not fared much better. To date, the International Court of Justice (ICJ) has "overwhelmingly dealt with disputes of relatively minor importance." (153) To be sure, there are new experiments--such as the International Criminal Court (ICC) or the International Criminal Tribunal for the former Yugoslavia (ICTY) or International Criminal Tribunal for Rwanda (ICTR)--which are innovative in their attempt to get beyond the "dominant model for enforcing post-Nuremberg international criminal law ... punishment by national courts in the territory where the crimes occurred." (154) Unfortunately, as one scholar sums it up, by and large the "International Criminal Tribunals for the former Yugoslavia and Rwanda have limited mandates, and political considerations continue to hamper their effectiveness. The International Criminal Court will undoubtedly face similar obstacles." (155) The point is as simple as it is sad: The U.N. has by and large been unable to prevent military aggression and torture; relatedly, it has been largely ineffectual in establishing positive human rights.

There is also a second, and quite different, category of intergovernmental organization. Organizations in this category have some enforcement bite, but are too often perceived as oppressive. For example, the World Trade Organization (WTO), especially given its Dispute Settlement and Appellate Body, is a body of international law exhibiting increasing potency. (156) However, the WTO is frequently criticized as an inter-governmental organization designed to further the interests of the business community to the detriment of labor and the environment. Critics also suggest that the "WTO's legendary lack of transparency and autocratic governance of international trade matters philosophically violates the most fundamental precepts of liberal democracies." (157) The World Bank/International Monetary Fund (IMF) complex is also similarly the object of scorn, seen as an entity that imposes the will of business elites of the developed world upon the developing world's poor and disenfranchised. (158) Whether these accusations are accurate or not is almost beside the point--the important consideration is that precisely those international institutions capable of exerting real influence lack legitimacy in the eyes of many.

Finally, there is private enforcement--most prominently international commercial arbitration, which national governments sanction through adhesion to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. (159) This regime is also subject to two overarching criticisms. First, like the WTO and World Bank/IMF, it is an international enforcement mechanism that can be conceived as one designed to lower transaction costs for wealthy commercial interests. Second, it explicitly privatizes dispute resolution, thereby avoiding the scrutiny public fora generally provide. After all, arbitration is carried out under the auspices of private entities such as the International Chamber of Commerce (ICC). (160) Cynics again might be forgiven for noting that sovereignty conveniently takes a back seat to commerce--whereas it remains front and center in other controversies such as human rights.

In sum, there have been significant forays beyond the national. But overall, "the desire to preserve at least the existing structure, without too deeply shocking national suspicions and discrepancies, has hitherto outweighed the need for the development of international law." (161) As Lawrence Friedman argues:
   Countries obey or disobey as they see fit; this has been true of
   democracies as well as dictatorships. National interests always
   come first. International organizations modify this picture only
   slightly. The United Nations meets, debates, resolves, and
   sometimes even sends armies into the field; but on the whole,
   enforcement of resolutions is basically a matter of power
   politics--if we can speak of enforcement at all. "Sanctions" (often
   economic ones) are a pretty voluntary matter at best, and are
   usually ineffective. (162)


The predominant exception to this pattern, where de-nationalization has taken place--WTO, IMF, and private arbitration come to mind--occurs in areas many consider to be protective of powerful business interests, often domiciled in the developed world.

C. Constraints of Liberalism and Process Theory

Have I been unfair? After all, the usual caveat is that international qua international law and institutions are new, and that there are inevitable setbacks. Yet I am struck by the inability of transnationalism, now over fifty years on, to improve our lot. Perhaps this is because the transnational project, at its philosophical core, suffers from two fundamental limitations: a belief in liberalism, and an emphasis on process theory.

Recall that transnational theorists deemphasize sovereignty and emphasize non-state actors--those on the right side of Part I's matrix. (163) For example, Harold Koh suggests that, "[t]he goal ... should be to expand the participation of intergovernmental organizations, NGOs, private business entities, and transnational norm entrepreneurs as process-activators." (164) The intellectual underpinnings of such an approach lie in nineteenth-century liberalism, which posits that "[i]f the sources of state behavior lie in the formation and representation of individual and group preferences, then the key to international order lies in shaping those preferences and regulating the individual and collective ability to achieve them." (165) Put simply, liberalism frames "individuals and groups as the underlying determinants of state behavior." (166) Tellingly, Anne-Marie Slaughter even defines transnational law within a liberal construct:
   Liberal theory provides a powerful theoretical framework for the
   analysis of transnational law. Using the term more narrowly than
   the classic definition advanced by Philip Jessup, I define
   transnational law to include all municipal law and a subset of
   intergovernmental agreements that directly regulate transnational
   activity between individuals and between individuals and state
   governments. (167)


While the emphasis on non-state actors might be placed with the best of intentions, (168) it raises a set of troubling issues about how non-public and often opaque institutions, such as multinational corporations and NGOs, (169) might want to shape the international legal order in a way that benefits their interests. Think, for example, of whether multinational corporations might have an incentive to push for certain IGOs like the WTO that promote the liberalization of trade but not for others that might stem the regulatory race to the bottom or advocate positive human rights.

Private actors might affect legal regimes in two ways. The first is by influencing the making of public law--national laws or treaties. In this process, "transnational groups can influence state preferences twice: at the negotiation stage and at the ratification or implementation stage, both times with significant advantages of information and access to both domestic and foreign governments." (170) As one observer notes, however, the lobbying is not restricted to national governments:
   It will no longer suffice simply to observe supranational courts,
   such as the ECJ, and international trade organizations, such as the
   WTO and NAFTA, as they regulate one aspect of procedure after
   another, often from narrow vantage points. Otherwise we run the
   risk of yielding control over transnational procedure to those few
   groups and individuals in transnational society that do have access
   to the type of information domestic lawmakers have not cared about
   and thus are learning quickly to play the policy-making game, as
   occurred in early international law. (171)


Liberalism provides an intellectually respectable justification for private actors to increase their influence over public lawmaking processes. (172)

Second, private actors can influence the legal order by advocating for privatization. As one writer observes, "[t]o some extent this work of states is becoming privatized, as is signaled by the growth of international commercial arbitration, and by key elements of the new privatized institutional order for governing the global economy." (173) Private sources of law--the lex mercatoria and its modern incarnations such as Incoterms and the UCP--are ironically the area where nation-states maintain the least amount of sovereignty. This poses some fundamental problems, given that,
   [T]he legitimacy of a non-territorial transnational law of a
   private law nature that has no state as originator and operates
   more in the manner of public international law still poses some
   fundamental questions for some. In the view of others, the proper
   source of the new lex mercatoria remain so opaque that it cannot
   yet function as a fully fledged system of law. (174)


By contrast, such concerns seem to overwhelm, for example, the application of non-territorial sources of law to deal with environmental, labor, and human rights issues. International trade law, on the other hand, remains relatively unperturbed--if anything, the trend is toward further privatization. (175) A cynic might be forgiven for wondering whether the influence of well-funded private actors might have some bearing on this divergence. (176)

Liberalism, which too often undergirds the transnational project, is thus deeply problematic. The emphasis on publicly unaccountable private actors--those on the right side of Part I's matrix--has fueled a dramatic trend: "the worldwide retreat of state authority and the privatization of functions (including dispute resolution) previously performed only by governments." (177) While transnationalism's founders sought to get beyond the nation-state in an effort to improve welfare, (178) the great irony is that an emphasis on private actors may in fact make things worse since they are democratically unaccountable entities whose interests may not necessarily coincide with the broader public welfare. Given whom it is relying upon to effect change, it becomes altogether unsurprising that transnationalism has not lived up to its billing. (179)

A second major concern with the transnational project is an emphasis on process theory--the notion that "law" will emerge if certain procedural forms are obeyed. At their core, such theories are variations on discourse theory in philosophy, most famously Jurgen Habermas' notion that doctrine can develop through a dialogue between involved parties. (180) The analogy to extensively-studied developments in the domestic context may be instructive. In its heyday during the 1950s and 1960s, the legal process school challenged the inroads of the realists. Process scholars argued that even though particular decision-makers were unreliable or oppressive, the overall process could be legitimized if particular procedures were developed to manage it. (181)

Through the pioneering efforts of scholars such as Abram Chayes, Thomas Erlich, and Andreas Lowenfeld, the ideas of the legal process school began to influence scholarship in international law. (182) In a strikingly parallel fashion to their domestic counterparts, these theorists tried to meet "the Realist challenge to international lawyers: a challenge to establish the 'relevance' of international law," (183) through "a new emphasis on the role and impact of international 'regimes,' the principles, norms, rules and decision-making procedures that pattern state expectations and behavior." (184)

Transnationalism seems to have inherited this emphasis on process. For instance, Harold Koh emphasizes how "nations participate in transnational legal process, through a complex combination of rational self-interest, transnational interaction, norm-internalization, and identity-formation...." (185) Similarly, other scholars speak of "a co-constitutive, or synergistic, relationship in which domestic courts worldwide are becoming active participants in the dynamic process of developing international law" (186) or of "jurisgenerative dialogue ... among international courts, between international and national courts, national governments, and international organizations, and among national courts." (187)

Unfortunately, the legal process approach is vulnerable internationally, just as it has been domestically. (188) There are problems with Habermasian discursive theories as applied to law on several levels. First, and most obviously, they assume certain preconditions for discourse: notably, that participants are well-informed, well-meaning, and rational. (189) Habermas himself makes clear that:
   Communicative freedom exists only between actors who, adopting a
   performative attitude, want to reach an understanding with one
   another about something and expect one another to take positions on
   reciprocally raised validity claims. The fact that communicative
   freedom depends on an intersubjective relationship explains why
   this freedom is coupled with illocutionary obligations. (190)


To belabor the obvious, the actors on the international scene--individuals, corporations, NGOs, IGOs, supranational organizations, and nations--are far from occupying comparable positions in terms of wealth, information, and a plethora of other resources. When there are wide disparities, discourse is skewed toward those with power. As a consequence, as one scholar warns, "some discourses--many, maybe all, discourses--do not meet Habermas's conditions." (191) Even if we assume, arguendo, that these preconditions can be met, other problems emerge. For one, legal reform based on procedural discourse is likely to foster only incremental change. (192) In addition, it creates an impasse when confronted with moral issues and value judgments, much as the legal process school did. (193)

The assumptions embedded into liberalism and process theory, then, provide insight into why transnationalism has not lived up to its billing. Using a liberal construct, it privileges a constellation of unequal actors--public and private, wealthy and poor, strong and weak. It then allows these actors, through process theory, to engage in dialogue and assumes good will emerge. A pessimist, looking at a fractured and politicized world, might be forgiven for thinking something more is needed for genuine international qua international laws and institutions to gain some traction. (194) Perhaps we need to set liberalism and process theory aside, and return to some basic, relatively unglamorous comparative doctrinal analysis.

III. DO COMPARATISTS GIVE CAUSE FOR OPTIMISM?

Despite the significant limitations outlined in Part II, transnational law is in vogue. Comparative law, on the other hand, is not. Part III argues, however, for a supervening irony: It is precisely a more refined comparative project that might eventually lead to meaningful international law and institutions. It also debunks the myth that the greater internationalism such comparisons could foster will eventually lead to world government.

A. Stepping Up the Project

Comparative law is perceived to be in a deepening intellectual crisis. (195) Commentators lament a disjointed discipline where "studies in comparative law rarely relate to, or build on, each other." (196) Even more fundamentally, there seems to be a lack of theory. As one scholar observes, "the discipline of comparative legal studies currently offers little explanatory insight or practical guidance about the nature of comparison." (197) The end result appears to be "a general 'malaise' affecting comparative law and a concomitant lack of interest in the 'comparative method,' as it is known, among students, scholars, and the legal profession." (198)

The great irony is that comparative law may be precisely what saves the transnational project. To begin with, if as Part II has contended, transnational law is really mostly about national law applied to cross-border events, then not much progress can be made until we first carefully understand the similarities and differences among these national laws. (199) As one commentator observes:
   Efforts to move the legal profession beyond the parochial study of
   individual legal systems toward a global perspective generally
   focus on the study of international law, the common principles that
   apply to all of us. But this approach leaves an important gap: we
   learn little about each other's domestic laws. Neither
   international lawyers nor human rights specialists are particularly
   schooled in comparative law. (200)


Put more systematically, comparisons can serve three important purposes: "First, they potentially facilitate a greater appreciation of similarities and differences among competing laws. Second, they are integral to law reform initiatives intended to reduce the differences. Finally, comparisons inform the creation of private and public international law designed to eliminate conflicts of domestic law." (201) The comparative project can thus lead to a series of important insights based on one simple fundamental premise: "[t]o the extent the comparison leads to commonalities, it may encourage the unification of law across national borders." (202)

The most obvious application, of course, is whether sufficient commonality can be found so as to move from domestic to international law--whether implicitly through recognition of customary international law, or explicitly as impetus toward a treaty. After all, "we should bear in mind that the comparative method has played a major part in the growth of international law because it is mainly through the study of domestic law that a suitable international legal order is crafted." (203) In the simplest sense, then, comparative law can provide analytical support to an expansion of the narrow scope of international law. (204)

But as the matrix in Part I illustrates, there is a lot of blank space that neither international nor national law covers--whether we decide to call this expanse "transnational" is almost beside the point. The more important concept is that the comparative method can help us try to find, for example, where there is sufficient convergence to envision an intergovernmental organization, or where concern about trade custom might be significant enough to merit public lawmaking. Put simply, "[i]n order to establish the existence of a transnational legal principle, one has to show that a number of legal systems have converged on the same solution to a particular problem. Comparative law thus provides the tool to find transnational law." (205)

To achieve any of these successes, however, the comparative method must step up its game. Today, it almost goes without saying that, "[i]n the mainstream, comparative law is still about the study of national legal systems and the families they may form." (206) While this endeavor is of course valuable (207) and often difficult, (208) it has unnecessarily constricted comparative law along two dimensions. First, in its focus on "dry, formalistic, historical introductions to foreign law systems and comparisons of legal rules and institutions," (209) comparative law has seemingly lost sight of the fact that even among national laws, "the most fundamental differences do not exist between substantive rules but between institutions, procedures, and techniques." (210) Put succinctly, much of comparative law "focuses on foreign law and only incidentally on comparison." (211) We need many more comparisons.

Second, a renewed emphasis on comparison need not be limited to national laws. As Mathias Reimann contends, a new dimension should be added to the comparative enterprise:
   Under the traditional model, comparative law, as the study of
   coequal national laws, always operates, so to speak, on the
   horizontal plane. Expanding it to encompass the relationship
   between national and transnational regimes adds a vertical
   perspective. We may even compare supranational systems with each
   other, adding yet another viewpoint. All this makes the whole
   enterprise more complex. (212)


Careful transnationalists appreciate this point, though their emphasis seems to be on exploring international principles that can be imported into the domestic legal order. (213) Notable examples include the death penalty, (214) human rights litigation, (215) and the procedures of transnational litigation more generally. (216)

Yet comparative analysis could spark a debate not only about the role of international law in domestic fora, but also about the need for more robust intergovernmental institutions. For example, is there sufficient consensus in certain areas of international law to argue that an international organization is ripe to emerge? Are there only certain areas or regions where an IGO could evolve to a supranational entity? Is trade custom really an efficient or fair method of carrying about cross-border transactions, or would international law from a public source be better? What factors have really made the WTO and World Bank/IMF so much more influential than the transnational human rights regime?

Thinking about the comparative project broadly provides insight into questions such as these. Broader analysis is also possible. For instance, Hiram Chodosh suggests five alternatives as a framework within which to conceptualize the regulation of cross-border activities. First, one might simply want to hinder or foster cross-border activity. (217) Second, one might want to adjudicate using workaround solutions such as conflicts and extraterritoriality. (218) Third, there might be an attempt at comparative legal reform to engender greater uniformity, or even divergence. (219) Fourth, there is public international law. (220) And fifth, one might create international institutions. (221) As one moves from the first option in the menu to the fifth, the regulation of the cross-border event becomes significantly more complex.

What is particularly appealing about Chodosh's framework is that it moves beyond the broad Panglossian brush of transnationalism to expose the advantages and disadvantages of each approach:
   Restricting the cross-border activity eliminates the conflict but
   also creates opportunity costs for communities resulting from the
   inability to interact. Choice of law preserves the differences, and
   allows the activity, but creates transaction costs and
   indeterminacy. Comparative reform efforts aimed at reducing
   contrasts between the different regimes may also conflict with
   local determinations over public choices. Public international law
   eliminates many of the normative differences, but compromise often
   renders the uniform rule vague and ambiguous ... Unification
   efforts may create greater consistency in the uniform rule's
   application and enforcement. International organizations, however,
   also reduce local control and create a greater distance between
   representative decision makers and the represented populations....
   (222)


Whether one agrees with Chodosh's categories and assessment is almost beside the point--what is important is to begin exploring opportunities beyond crude approximations, such as extraterritoriality and either token or maligned international institutions. A reinvigorated comparative method could provide just the ticket.

B. Anti-Democratic Bugaboo

To the extent such analysis fosters greater internationalism, a worry might emerge: international qua international law and institutions are fundamentally undemocratic and will eventually lead to some form of "world government." A microcosm of this concern is expressed in the debate about the propriety of using foreign or international law in American courts--decidedly not a novel question, (223) but one that has garnered increasing prominence in recent years. (224) Perhaps most glamorous "is the debate in the constitutional law area about the legitimacy of using foreign sources to aid in the interpretation of the U.S. Constitution" (225)--one that has engendered well-publicized discussions among Justices of the U.S. Supreme Court. (226) My point is not to wade into this debate in any significant way, except to use it as an example of why getting beyond simple reliance on national law and institutions may present a marked improvement, not a step back.

The criticism of internationalism is rhetorically very attractive. At its simplest level, it rests on the putative exceptionalism of the American system. (227) A slightly more sophisticated expression is the democratic deficit argument; namely that, "citing foreign and 'international' law as authority for domestic decisions ... is inappropriate, undemocratic, and dangerous." (228) As one commentator argues:
   The development of rules in the United States is meant to be
   tough--bicameralism and presentment, for example, is one means by
   which the production of law is controlled. Such controls do not
   necessarily exist in the production of foreign and international
   law, making them more suspect and, in a system based in the rule of
   law, inappropriate for judicial application. (229)


At its core, the argument seems to devolve to one about separation of powers: "If Congress has not chosen to reduce a norm to legislation it is presumptuous for the courts to pretend they know better. The boundaries of sovereignty are weakened when courts can rely on non-domestic sources in reaching decisions." (230)

While seemingly seductive, these arguments do not withstand critical scrutiny, largely because a nation cannot endorse international law and institutions willy-nilly, but only within its constitutional framework. (231) In the case of treaties, IGOs, or even supranational organizations, accession is based on the notion of explicit consent. (232) As Alexander Aleinikoff notes:
   On close analysis, however, it becomes surprisingly difficult to
   identify the location and composition of the sovereignty that
   transnational law is said to impinge upon ... By way of
   multilateral and bilateral conventions, agreements, and
   arrangements, states routinely limit their freedom to act. These
   arrangements are usually seen as only controlling or influencing
   state action on the international level, but the vast majority also
   affect a state's regulation of its territory and its people ... As
   the products of consensual acts, the impacts of these conventions
   ought to be seen as the results of an exercise of sovereignty, not
   as evidence of a lapse of sovereignty. (233)


Or, in the words of Mark Tushnet:
   The rules made by supranational institutions become domestic U.S.
   law only through the operation of U.S. domestic institutions
   subject to the checks-and-balances system. The International Court
   of Justice's interpretation ... is domestically effective, if at
   all, only because domestic courts make it so, or (on another view)
   because the domestic treaty-makers, themselves subject to the
   checks-and-balances system, have made it so. (234)


For its part, while custom does not rest on explicit consent, it is important to remember that such norms are "applied within that state's own courts or executive branch. This application of customary international law can occur only if domestic constitutional norms permit recognition of law made elsewhere." (235) Put simply, then, international law "is only binding when the United States affirmatively acknowledges its force by ratifying a treaty or enacting a statute, or in the case of customary international law where the principle is so overwhelmingly accepted and respected that it rises to the level of binding law." (236) It should come as no surprise, then, that the United States "has regularly recognized the applicability of foreign law for more than two centuries.'" (237)

To the extent the critique revolves around judges engaged in a countermajoritarian exercise, it is also unconvincing. As Tushnet reminds us:
   I find it impossible to distinguish, in terms of democratic
   legitimacy, between a domestic court filling in the gaps of a
   statutory scheme and the same court determining what customary
   international law is and applying it, or interpreting a treaty to
   require the domestic courts to take as rules of decisions the
   statements made by supranational institutions. (238)


One might plausibly counter Tushnet's argument by observing that a judge applying law exogenous to a country's political process exacerbates the countermajoritian difficulty. But again, recall that treaties and custom can only exist through consent, either explicit or implicit. (239) It is also important to remember that judges have discretion--just like they do in the domestic context--as to what international and foreign sources to use. (240) To the extent the criticism favors entrusting only the political branches with authority, it is trite as well: even a cursory glance at stable democracies around the world suggests the benefit of a nation's having an independent judiciary, countermajoritarian and all.

If the arguments above ring empty, there is of course the ultimate slippery slope claim: expressing convergence through international law and institutions will eventually lead to a move away from national legislatures to the highly distasteful state of world government. (241) This centralized end-state is as unlikely to happen as it is normatively undesirable. First, as Arthur von Mehren points out, for such a scenario to emerge, there "must be a supranational starting point for legal reasoning, and it must be administered by a supra-national judicial system whose judges are trained in a shared legal tradition with a common conceptual structure and common values. Except in regional federations, the likelihood of these conditions being satisfied is small." (242)

Second, such an end-state is normatively troublesome. It is critical to remember that "World Government--like anarchy or hegemony--is the antithesis of international law for a world of many separate and independent political entities." (243) Perhaps counterintuitely, world government in its homogeneity would have no room for either comparative analysis or international or intergovernmental law. As Wolfgang Friedman summarizes:
   The basic primacy of the state as a subject of international
   relations and law would be substantially affected, and eventually
   superseded, only if national entities, as political and legal
   systems, were absorbed in a world state ... Such a change is not
   only extremely unlikely, in the light of the political realities of
   our time; it would also involve a fundamental change in the
   structure of international legal relations. International law would
   disappear altogether and be replaced by a municipal legal system on
   a world-wide scale ... (244)


The notion that looking for common ground to develop meaningful international qua international laws and institutions will eventually lead to world government is a canard, albeit a rhetorically glorious one.

Once these half-baked critiques of the international project are exposed, a simple proposition emerges, and a choice follows. Nations are increasingly interdependent, with the scale and scope of cross-border events rising dramatically. (245) Given this inevitability, we face two choices. The first option is to maintain the status quo: work around national laws with crude methods such as extraterritoriality, or develop intergovernmental organizations too often ridiculed outside the business community and the developed world. The second option is to be willing to move beyond overwhelming reliance on national laws and private custom toward international laws and institutions that share broad public respect.

Moving to the second option necessarily requires defining the national interest holistically and over the long term, with the recognition that even though the status quo may have generated short term gains for powerful nation-states and especially their business elites it has engendered a sorry state of affairs for the vast majority of the world's population who live in the developing world--an imbalance that might present a major risk to world stability. (246) To overcome this malaise, even powerful nations need to look well beyond their short-term desires, as enticing as they might be. As Wolfgang Friedmann observes, "it is equally possible to work on the strengthening of international law and authority from the standpoint of 'enlightened national interest,' as being the best or even the only way of ensuring national survival." (247) Or, in the words of another scholar, "[f]acilitating the orderly interaction between our legal system and the rest of the world is not about giving up sovereignty or surrendering the national interest but about figuring out how to protect and preserve the things our nation values in our inevitable interactions with the rest of the world." (248) Thankfully for the early development of the United States, this is a point the Founding Fathers understood well. (249) Put simply, countries need to acknowledge their long-term interdependencies, even if it means making short-term concessions.

It is also in any state's national interest to have a say in the formation of emerging international law and institutions, an opportunity which an isolationist tack does not provide. As one scholar put it:
   By actively participating in transnational judicial dialogue,
   U.S. courts can help to ensure that U.S. constitutional law
   remains influential, and that key U.S. norms--for example,
   norms on free speech--are championed at the transnational
   level. Advocacy of these norms by U.S. courts and other
   actors increases the likelihood that norm convergence will
   produce an international legal norm that is consonant with
   U.S. constitutional values. (250)


Fortunately, the comparative exercise should inherently facilitate humility and cross-fertilization; after all, "[c]omparative law is often described as providing both a window into other cultures as well as a mirror for one's own. Increased tolerance, respect, and understanding are among the values that comparativism promotes; that others can do things differently yet still succeed is an important reminder." (251) The parallel to Candide is again apt: as Voltaire reminds us, "if our friend Pangloss had seen El Dorado, he would no longer have said that the country house of Thunder-ten-tronckh was the best there was on earth; it is certain that one must travel." (252) Sadly enough, we have spent too much time on a self-absorbed and distracting debate, rather than focusing our energy on developing meaningful international laws and institutions. Maybe comparative law, notwithstanding its current existential crisis, can help us get there.

IV. CONCLUSION

Transnationalism is a fancy term that portends lofty expectations. When one gets beyond the seemingly obligatory jargon and develops a more precise typology, however, its luster fades. Once one understands that transnational law represents mostly national law applied to cross-border transactions, then it comes as no surprise that precious little international law has developed. To the extent that the occasional international institution is thrown in for good measure, it is either ineffectual or loathed by significant groups within the world community. In such an anemic state, it becomes readily apparent why the landscape of global current events remains so bleak--from economic disparity to political instability to outright aggression. (253) As Jessup himself observes, somewhat amusingly given his seminal work in launching the concept of transnationalism, "[i]n the international or, more broadly, the transnational area there are occasional beacons which burn brightly but there are few well-lighted avenues." (254)

The core problem--how to reconcile increasingly global events with national political sovereignty--is stubborn and seemingly intractable. (255) Perhaps counter intuitively, over the past few decades the glamour of transnationalism has masked how little progress has been made on this central question. Transnationalism's affection for liberalism and process theory is at least partially to blame.

The prescription to overcome the malaise is decidedly unglamorous: basic comparative analyses. The happy by-product is that such a mission would rejuvenate comparative law from its current distress. By looking across national laws and among national, international, intergovernmental, and supranational sources, comparatists might be able to tell us where there are genuine commonalities. Where such bridges exist, perhaps truly international qua international law and institutions might be formed. (256) Other times, common ground may be neither feasible, nor even desirable, and sovereignty remains necessarily ascendant. The key is to understand which is which and why. (257) Relying on fancy vocabulary which glosses over these difficult categories is, simply put, Panglossian. Unfortunately, as the narrator in Candide matter-of-factly observes, "no matter what Master Pangloss said about it, I have often noticed everything was pretty bad in Westphalia." (258) With a more critical take on transnationalism, our version of "metaphysico-theologcosmo-nigology" perhaps one day it might not be so.

(1) FRANCOIS-MARIE AROUET DE VOLTAIRE, CANDIDE 290 (1759) (Peter Constantine, trans., Random House 2005) (1963).

(2) See infra notes 13-14 and accompanying text.

(3) See infra notes 28-58 and accompanying text.

(4) For example, in teaching International Business Transactions, I regularly use the path-breaking casebook authored by Detlev Vagts, William Dodge, and Harold Koh. See DETLEV F. VAGTS, WILLIAM S. DODGE & HAROLD HONGJU KOH, TRANSNATIONAL BUSINESS PROBLEMS (3d ed. 2003).

(5) See infra note 59.

(6) VOLTAIRE, supra note 1, at 271. Candide first meets Pangloss "[i]n Westphalia, in the country home of Monsieur the Baron of Thunder-ten-tronckh." Id. at 3.

(7) Id. at 5.

(8) As one prominent architect describes it:
      [T]here are two forms of getting to know architecture. Children,
   as indeed tourists, learn the cultural signs that make any urban
   place particular to a social group, an economic class and real,
   historical people. But professionals and modern architects spend
   their time unlearning these particular signs while they master the
   science of building and the arcana of an advanced industrial
   civilization. Furthermore, following modern novelists, sociologists
   and idealistic planners, they have constructed the ideal type of
   the universal man, the abstract client, the average user. This
   Mythic Modern Man may not exist, except as a historical fiction,
   but he became a logical necessity for architects and others who
   wanted to generalize a statistical average and design for the
   unknown client, the absent user.


CHARLES JENCKS, THE NEW PARADIGM 1N ARCHITECTURE: THE LANGUAGE OF POST-MODERNISM 19 (7th ed. 2002).

(9) The comparative method "consists of comparing and contrasting the domestic substantive and procedural laws of differing legal systems." Gloria M. Sanchez, Teaching Foreign Law, Culture, and Legal Language of the Major U.S. American Trading Partners, 34 SAN DIEGO L. REV. 635, 674-75 (1997). For a detailed discussion of the comparative method, see infra Part III.A.

(10) TIM WOODS, BEGINNING POSTMODERNISM 1 (1999).

(11) David J. Bedennan, The Foundations of Law: World Law Transcendent, 54 EMORY L.J. 53, 67 (2005).

(12) WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW 213 (1964) [hereinafter FRIEDMANN, CHANGING STRUCTURE]. See also Mathias Reimann, From the Law of Nations to Transnational Law: Why We Need a New Basic Course for the International Curriculum, 22 PENN ST. INT'L L. REV. 397, 399-400 (2004) [hereinafter Reimann, Law of Nations].

(13) The canonical description of public international law remains Article 38 of the Charter of the International Court of Justice:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Statute of the International Court of Justice, 1983 U.N.Y.B. 1334, 1336, U.N. Sales No. E.86.I.1 (statute entered into force Oct. 24, 1945).

(14) See, e.g., Joel P. Trachtman, The International Economic Law Revolution, 17 U. PA. J. INT'L ECON. L. 33, 40 (1996) ("The central issue in conflict of laws and within private international law, however, is a fundamental issue of state authority; namely, which state will be allocated the legal power to regulate the matter?").

(15) See. e.g.. Bederman, supra note 11, at 59 ("[T]he abolition of the slave trade, the withdrawal of legitimacy to aggression, and the humanization of warfare are among international law's most profound achievements.").

(16) See, e.g.. FRIEDMANN, CHANGING STRUCTURE, supra note 12 at 20 ("Before the rise of the modern sovereign state, which roughly coincides with the evolution of modern international law, political and social links were international rather than national.").

(17) See, e.g., id at 162 ("[A]pparently that public international law does not apply to relations between an international organisation and individuals, since it is confined to the relations of states.") Reimann, Law of Nations, supra note 12, at 400 ("Around the middle of the twentieth century, two important elements were added: permanent international organizations and international human rights. Despite this addition, however, the coverage of the classic model remained strictly limited to public international law.").

(18) Mathias Reimann, Beyond National Systems. A Comparative Law for the International Age, 75 TUL. L. REV. 1103, 1107 (2001) [hereinafter Reimann, Beyond National].

(19) William J. Aceves, Liberalism and International Law Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation, 41 HARV. INT'L. L.J. 129, 136-37 (2000). See also Jost Delbruck, Exercising Public Authority Beyond the State: Transnational Democracy and/or Alternative Legitimation Strategies?, 10 IND. J. GLOBAL LEGAL STUD. 29, 30 (2003) ("[W]e are facing a multilayered system of governance in which public functions are performed by states.., and by international and supranational organizations, supplemented by the increasingly important activities of non-governmental organizations that participate in international decision-and law-making and in the enforcement of international law."). For a critique of liberalism, see infra notes 163-179 and accompanying text.

(20) Delbruck, supra note 19, at 29.

(21) See. e.g., H. Patrick Glenn, Harmony of Laws in the Americas, 34 U. MIAMI INTER-AM. L. REV. 223, 225 (2003) ("Public international law thus could not trespass into the domestic sphere, and viewed states ... as the exclusive subjects of international normativity. Private international law had no substantive content and took as its function the assignation of all private international cases to the determination of a given national law."); J.H. Dalhuisen, Legal Orders and Their Manifestation: The Operation of the International Commercial and Financial Legal Order and Its Lex Mercatoria, 24 BERKELEY J. INT'L L. 129, 187 (2006).

(22) See, e.g., FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 190 ("Because so many of the new domains of international law can no longer be neatly classified under either public or private law but constitute a blend of both....") Bederman, supra note 11, at 63-64.

(23) Abul F.M. Maniruzzaman, The Lex Mercatoria and International Contracts: A Challenge for International Commercial Arbitration?, 14 AM. U. INT'L L. REV. 657, 692 (1999).

(24) See, e.g., T. Olawale Elias, Modern Sources of International Law, in TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP 34, 66 (Wolfgang Friedmann et al., eds., 1972) ("The club of civilized nations idea of international law is now dead as the dodo.").

(25) See, e.g., Aceves, supra note 19, at 131 ("The prominence of the state-centric paradigm has inhibited the development of alternative models for the protection of human rights.").

(26) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 95.

(27) Wolfgang Friedmann, Human Welfare and International Law--A Reordering of Priorities, in TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP 113, 118 (Wolfgang Friedmann et al., eds., 1972) (emphasis added) [hereinafter Friedmann, Human Welfare]. Friedmann goes so far as to argue that "[n]ot infrequently, insistence on 'sovereignty' is simply a cover for the reluctance of incumbent regimes dominated by landowners and industrialists to effect urgently needed social and economic reforms." Id. at 127.

(28) PHILIP C. JESSUP, TRANSNATIONAL LAW (1956).

(29) Id. at 1.

(30) Id. at 2. Jessup did not coin the term and cites McDougal, Johnson and Corbett. See id. at 2 n.3. See also Friedmann, Human Welfare, supra note 27, at 130 (briefly summarizing McDougal's 1953 Hague Lectures).

(31) Oscar Schachter, Philip Jessup's Life and Ideas, 80 AM. J. INT'L L. 878, 893-94 (1986).

(32) Scholars such as Jessup and Friedmann are considered leaders of the "monist" school of international law "maintaining that there is only one international legal order based on the primacy of international law over municipal law wherever there is an interaction between the two." Elias, supra note 24, at 35.

(33) Preface to TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP v, vi (Wolfgang Friedmann et al., eds., 1972).

(34) James N. Hyde, Jessup: Memorials' and Reminiscences: III, 80 AM. J. INT'L L. 903, 903 (1986). See also Nicholas de B. Katzenbach, Transnational Law, 24 U. CHI. L. REV. 413, 414 (1957) (book review) ("By employing such a broad-gauged view Jessup seeks to open up to the domain of legal scholarship a large and important area of rules and practices now too often arbitrarily excluded by a priori classification.").

(35) HENRY J. STEINER, DETLEV F. VAGTS & HAROLD HONGJU KOH, TRANSNATIONAL LEGAL PROBLEMS 2 (4th ed. 1994). See also Oona A. Hathaway, Between Power and Principle: An Integrated Theory of International Law, 72 U. CHI. L. REV. 469, 473 n.11 (2005) ("Hence 'transnational' is used here in its literal sense: It means across nations, as opposed to 'international' which means between nations.... When applied to law, for example, transnational law includes all law that has cross-border effect, whereas international law refers only to treaties or other law that governs interactions between states."); Franklin E. Gevurtz, et al., Report Regarding the Pacific McGeorge Workshop on Globalizing the Law School Curriculum, 19 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. 267, 272-73 (2006) ("[T]ransnational law picks up any transaction or dispute that, in some manner, crosses national boundaries").

(36) As Jessup himself notes with wry humor, "[i]nternational relations and law are big enough subjects now without dragging in domestic relations and disgruntled Western farmers and professional minority stockholders." JESSUP, TRANSNATIONAL LAW, supra note 28, at 23.

(37) See, e.g., Martha F. Davis, State Constitutions and International Human Rights', 30 N.Y.U. REV. L. 86 SOC. CHANGE 359, 359 n. 1 (2006) ("In this article, I use the term 'transnational' to denote both international and foreign law.").

(38) See, e.g., Vlad F. Perju, The Puzzling Parameters of the Foreign Law Debate, 2007 UTAH L. REV. 167, 168 n.3 (2007) ("'Transnational law' is also used as a loose category that encompasses, on the one hand, both international and foreign law and, on the other hand, domestic law.") Cf. Kotaro Tanaka, Some Observations on Peace, Law, and Human Rights', in TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP 242, 244 (Wolfgang Friedmann et al., eds., 1972) ("In my view, world law comprises national laws, private international law, and public international law ...").

(39) Reimann, Beyond National, supra note 18, at 1104 n.7. See also H. Patrick Glenn, Transnational Common Laws, 29 FORDHAM INT'L L.J. 457, 458 (2006) ("[I]ts transnational character is derived from the extra-national character of its source or sources").

(40) J. of Transnat'l L. & Pol'y, Mission Statement, available at http://www.law.fsu.edu/journals/ transnational/gen_info.html (last visited June 2, 2008).

(41) See, e.g., Mathias Reimann, Taking Globalization Seriously: Michigan Breaks" New Ground by Requiring the Study of Transnational Law, 82 MICH. BAR J. 52, 53 (2003) ("This law comes mainly from three major areas: public international law (the law of nations), private international law (conflict of laws), and foreign and comparative law. It includes not only norms that are 'international' by their nature, such as treaties or custom, but also domestic rules and principles governing transnational issues ...").

(42) See, e.g., Hiram E. Chodosh, Globalizing the U.S. Law Curriculum. The Saja Paradigm, 37 U.C. DAVIS L. REV. 843, 862 (2004) ("transnational (or private international) law") [hereinafter, Chodosh, Globalizing].

(43) See, e.g., T. Alexander Aleinikoff, Law in a Global Context: Georgetown's Innovative First Year Program, 24 PENN. ST. INT'L L. REV. 825, 825 (2006) ("In my view, 'transnational law' covers more ground than the term 'international law'; it embraces comparative law as well as choice of law issues when a transaction affects more than one legal system."). Cf. Anita Bernstein, On Nourishing the Curriculum with a Transnational Law Lagniappe, 56 J. LEGAL EDUC. 578, 579 n.4 (2006) ("I believe that many contributors regard 'transnational law' as extending beyond 'private citizens' to cover comparative law and international law as well.").

(44) See, e.g., Christopher R. Drahozal, Contracting Out of National Law: An Empirical Look at the New Law Merchant, 80 NOTRE DAME L. REV. 523, 524 (2005) ("I will use the phrases 'new law merchant' and 'transnational commercial law' interchangeably to refer to such a-national legal principles."); Maniruzzaman, supra note 23, at 660 ("The so-called third legal system has been described in the literature by various names, such as 'transnational law,' 'transnational commercial law,' the 'lex mercatoria,' and 'international law of contracts.'"); Dalhuisen, supra note 21, at 129 ("The emergence and content of a spontaneous new transnational law merchant, or lex mercatoria, substantially covering all international commercial and financial transactions remain contentious.").

(45) See, e.g., Janet Koven Levit, Going Public with Transnational Law: The 2002-03 Supreme Court Term, 39 TULSA L. REV. 155, 155 n.4 (2003) ("I will use the term transnational law to include international, foreign, informal 'soft law,' and domestic law with a transnational impact.").

(46) Harold G. Maier, Foreword, Some Implications of the Term "Transnational," 25 VAND. J. TRANSNAT'L L. 147, 147 (1992).

(47) See, e.g., Matthias Lehmann, Comment, A Plea for a Transnational Approach to Arbitrability in Arbitral Practice, 42 COLUM. J. TRANSNAT'L L. 753, 753-54 (2004) ("Transnational law is understood here as describing the general principles of law that are recognized by a significant number of national laws."). This formulation, however, sounds eerily similar to Article 38(1)(c). See supra note 13.

(48) Mark L. Jones, Fundamental Dimensions of Law and Legal Education: A Theoretical Framework, 26 OKLA. CITY U.L. REV. 547, 590 n.60 (2001).

(49) Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2349 n.9 (1991) [hereinafter Koh, Transnational Public]. See also Harold Hongju Koh, Why Transnational Law Matters, 24 PENN. ST. INT'L L. REV. 745, 745 (2006) ("Transnational law represents a hybrid of domestic and international law that has assumed increasing significance in our lives.") [hereinafter Koh, Why Transnational].

(50) Koh, Transnational Public, supra note 49, at 2348.

(51) JESSUP, TRANSNATIONAL LAW, supra note 28, at 3 ("Transnational situations, then, may involve individuals, corporations, states, organizations of states, or other groups.").

(52) See, e.g., FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 64 (as characteristic of transnational law, noting the "vertical extension of international law, from states to public and private groupings").

(53) See, e.g., Diane F. Orentlicher, Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles, 92 GEO. L.J. 1057, 1106 (2004) ("A defining feature of this phenomenon is the broad spectrum of actors who participate in making transnational law, extending well beyond the traditional cast of diplomats and other foreign service professionals. Particularly noteworthy is the role of NGOs and other non-state actors.") (emphasis in original); Sanchez, supra note 9, at 677 ("The field of international law has expanded to include regulation of: (1) private parties' relations and transactions with private parties from other nations; and (2) governmental actors transacting in the private domain of international commerce.").

(54) Koh, Why Transnational, supra note 49, at 745-46. An example of (1) is "the international human rights norm against disappearances, now recognized as domestic law in most municipal systems." Id. An instance of (2) would be "the guarantee of a free trial under the concept of due process of law in Western legal systems, which then becomes part of international law, as in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and from there becomes internalized into nearly every legal system in the world." Id. To illustrate (3), Koh mentions "the 'unclean hands' doctrine, which migrated from the British law of equity to many other legal systems." Id. at 746.

(55) See, e.g., Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1856 (1998) [hereinafter Koh, Is International Law] ("In this [transnational] process, no bright line separates domestic rules of decision ... from the rules of customary international law ...").

(56) Harold Hongju Koh, The Globalization of Freedom, 26 YALE J. INT'L L. 305, 306-07 (2001) [hereinafter Koh, Globalization]. See also Harold Hongju Koh, Bringing International Law Home, 35 HOUS. L. REV. 623, 679 (1998) (describing transnational legal process as "promoting the internalization of international norms into domestic law") [hereinafter Koh, Bringing International].

(57) Koh, Bringing International, supra note 56, at 635-36 (emphasis in original).

(58) See Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181, 183-84 (1996) ("Transnational legal process describes the theory and practice of how public and private actors--nation-states, international organizations, multinational enterprises, non-governmental organizations, and private individuals--interact in a variety of public and private, domestic and international fora to make, interpret, enforce, and ultimately, internalize rules of transnational law.").

(59) See, e.g., Aceves, supra note 19, at 150 ("[A] universal system of transnational law litigation emphasizes the individual rather than the state, and domestic institutions rather than international tribunals."); Samuel P. Baumgartner, Is Transnational Litigation Different?, 25 U. PA. J. INT'L ECON. L. 1297, 1305-06 (2004) ("[T]he law applicable to transnational litigation affects the behavior of transnational actors.... Those actors, in turn, may affect the international as well as domestic law of transnational litigation both abroad and at home in the future."); Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 528 (2003) (arguing for "dialogue to promote an institutional framework for cooperation among states, compliance with international law, and the maintenance and development of democratic, rights-respecting national governments. The efforts of a wide range of actors--courts, national governments, international organizations, nongovernmental organizations, and even scholars--are needed to make the international judicial system work."); Orentlicher, supra note 53, at 1123-24 ("domestic and transnational political and social processes are constitutive of the values that shape both international and domestic law. The rules of international law that result from these processes may in turn reinforce and even significantly (re)shape values within discrete political communities, as well as across national boundaries."); Saskia Sassen, The Participation of States and Citizens in Global Governance, 10 IND. J. GLOBAL LEGAL STUD. 5, 10 (2003) ("My argument below will be that the mix of processes we describe as globalization is indeed producing, deep inside the national state, a very partial but significant form of authority, a hybrid that is neither fully private, nor fully public, neither fully national nor fully global."); Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 YALE J. INT'L L. 1, 4 (2002) ("Translation in this context refers to the process by which a common concept--accountability for human rights abuses--is expressed in the legal 'language' of each domestic legal system."); Melissa A. Waters, Mediating Norms and Identity. The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 GEO. L.J. 487, 490 (2005) ("I argue that the relationship between domestic and international law is co-constitutive in nature--that is, a mutually constraining and mutually reinforcing relationship in which international norms not only shape domestic law and culture, but are in turn shaped by domestic law and culture."). Cf. Janet Koven Levit, Medellin v. Dretke: Another Chapter in the Vienna Convention Narrative, 41 TULSA L. REV. 193, 193 (2005) ("International law is not made of discrete events, like a treaty-signing ceremony, the passage of legislation, or a diplomatic summit. Instead, international law is an iterative lawmaking process engaging numerous 'transnational' actors as lawmakers.").

(60) See, e.g., Reimann, Beyond National, supra note 18, at 1108 ("It is true that the nation-state has survived and that the news of its death is greatly exaggerated. But it is also true that the national-states' legal systems are no longer nearly as separate and independent as they were in 1900."); FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 216 ("While the state remains the basic unit of international relations, as shown in the structure of membership of the United Nations, it can no longer be regarded as the exclusive subject of international law.").

(61) See, e.g., Schachter, supra note 31, at 894 ("Jessup's aim was not merely to chart the new fields of law but to underline the extent to which these new fields were based on new relations of interdependence.").

(62) See, e.g., FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 190 ("There is today hardly any private field of law which could be adequately understood without a strong and often decisive admixture of public law."); Schachter, supra note 31, at 894 ("One early consequence of the increased recognition of 'transnational law' has been the growth of law school courses concerned with international transactions, human rights, international economic and social arrangements and other transnational subjects that did not fit neatly into the traditional divisions of public and private international law.").

(63) Cf. Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT'L L. 205, 221 (1993) [hereinafter Slaughter, International Law] ("[E]ven without coercion and thus the requirement of central enforcement, legal rules and decision-making procedures can be used to structure international politics.").

(64) Gilles Deleuze, Rhizome Versus Trees, in THE DELEUZE READER 27, 35 (Constantin V. Boundas ed., 1993); see also id. at 29 ("[A]ny point of a rhizome can be connected to anything other, and must be. This is very different from the tree or root, which plots a point, fixes an order."); see also Woods, supra note 10, at 6 ("[The rhizome] is the lateral root structure of certain plants, and the metaphor describes how all social and cultural activities in postmodernism are dispersed, divergent and acentred systems of structures. This contrasts with the organised, hierarchical, 'trunk-and-branch' structure of modernism.").

(65) Id. at 36.

(66) Koh, Globalization, supra note 56, at 305-06.

(67) See supra notes 37-48.

(68) After all, the former even suggests, for instance, breaking the distinction between criminal and civil; the latter, between international law and other areas of inquiry. See JESSUP, TRANSNATIONAL LAW, supra note 28, at 70 ("Just as the line between the international and the national should be questioned as a basis for legal classification, so should the standard distinction between criminal and civil."); FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 152 ("[I]t is no longer possible to separate neatly the sphere of the international lawyer, broadly speaking the field of international politics and diplomacy, with a generally slight legal superstructure, from that of other disciplines.").

(69) See, e.g., Koh, Transnational Public, supra note 49, at 2399-400 (noting the transnational legal process' "complex richness: its intricate mix of positivist, customary, and declarative law; its allocation of functions among a diverse blend of international institutions and regimes, regional and bipolar compacts, and national government actors; and its emerging modes of executive action, administration, legislation, and dispute-resolution.").

(70) Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 93 ("In recent jurisprudential discussions of the meaning and role of sanction in municipal law, the insufficiency of the traditional concept of the sanction has begun to be recognized.").

(71) JESSUP, TRANSNATIONAL LAW, supra note 28, at 7.

(72) The approach proposed, although different, is inspired by existing attempts to elaborate new structures. See, e.g., Chodosh, Globalizing, supra note 42, at 853-56 (outlining different strategies to address cross-border events, including isolation, choice of law, comparative law reform, uniformity, and unification of institutions).

(73) See FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 118.

(74) Id. at 286 ("the permanent executive organs of the [European] Communities ... decide by majority vote, thus breaking through the principle of unanimity which is the formal symbol of state sovereignty in international legal decisions.").

(75) Cf. Reimann, Law of Nations, supra note 12, at 402-03 (noting that "truly supranational law" is "law made and enforced by a body above sovereign nation states and binding upon them").

(76) See, e.g., Delbruck, supra note 19, at 35 (providing an acronym-laden list of IGOs, such as

"ILO [International Labour Organization], WHO [World Health Organization], IMF [International Monetary Fund], and WTO [World Trade Organization] or ICAO [International Civil Aviation Organization]").

(77) As Friedmann summarizes:
      The activities carried on by these non-governmental international
   organisations range over the whole spectrum of relations, cultural,
   scientific, political, social and economic activities. They include
   such quasi-official bodies as the International Red Cross, or the
   World Council of Churches, various rival international
   organisations of Labour, the International Chamber of Commerce, the
   International Rubber Research Board, the International Tea
   Committee, the International Air Transport Association or the
   International Institute of Administrative Science.


FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 37-38.

(78) Other commentators have attempted different characterizations. For example, Wilfred Jenks envisions three groupings of entities engaged in cross-border events:
      The first group consists of international organizations of states
   or governments, official international trust funds, and
   international public services constituted by and responsible to
   states or governments....

      The second group consists of privately established multinational
   associations and foundations of a non-profit-making character....


The third group consists of multinational corporations, consortia, and cartels.

C. Wilfred Jenks, Multinational Entities in the Law of Nations, in TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP 70, 72 (Wolfgang Friedmaun et al. eds., 1972). Cf. Trachtman, supra note 14, at 34 ("'[P]rivate law' is an oxymoron. Rather, the important underlying issue is that there are at least two kinds of persons subject to law: private persons and states.").

(79) Here the words "public" and "private" are used in their conventional sense as antonyms. They are not used as shorthand for "public international law" or "private international law"--each of which, of course, has a specific technical meaning.

(80) Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 36-37 ("Thus, the tension between the surviving symbols of national sovereignty and the realities of our time is a principal cause for the development of contemporary and international relations and law on three levels: of universal supranational organisation, or regional integration, and of diplomatic coexistence.").

(81) In writings in the international law arena, national law is sometimes called "municipal" law.

(82) Foreign law, of course, "typically refers to the internal law of states other than our own." Catherine Valcke, Global Law Teaching, 54 J. LEGAL EDUC. 160, 161 (2004).

(83) See infra Part III.B. Our only contemporary supranational entity, the EU, represents countries that are within one region and who, within broad limits, espouse similar geopolitical objectives. Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 62 ("Others, depending on a more closely knit community of values and purposes, proceed on a more restrictive level of international organisation, mostly of a regional pattern (notably in the West European Communities).").

(84) Cf. id. at 18 ("International law thus lies halfway between national laws and a federation.").

(85) See, e.g., Tanaka, supra note 38, at 243 ("[I]nternational law under traditional theory is subject to the will and consent of the individual state. International law, then, is 'weak law,' although a law to regulate relations between sovereign states has to be the strongest law.").

(86) See FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 124 ("The principal imperfection of the international law-making treaty, as distinct from legislation proper, derives from the principle of national sovereignty. A treaty must rest on the consent of all the parties.").

(87) See, e.g., id. at 121 ("The principal source of custom has been state practice, and it is from that source that the basic rules of classical international law, such as those governing territorial jurisdiction, immunity, state responsibility, and others, have developed..."). Interestingly, Friedmann is not particularly fond of custom. See id. at 121 ("More importantly, custom is an unsuitable vehicle for international 'welfare' or 'co-operative' law. The latter demands the positive regulation of economic, social, cultural and administrative matters, a regulation that can only be effective by specific formulation and enactment."). For a defense of custom as federal common law, see Koh, Is International Law, supra note 55.

(88) Cf. T. Alexander Aleinikoff, Thinking Outside the Sovereignty Box: Transnational Law and the U.S. Constitution, 82 TEX. L. REV. 1989, 1992 (2004) [hereinafter Aleinikoff, Thinking Outside] ("International law is moving away from a foundation of state consent and towards majoritarianism."). Unfortunately, commentators frequently do not distinguish between supranational organizations and IGOs. See, e.g., Valcke, supra note 82, at 164 ("The same can be said of the growing bodies of decisions which are emerging from the adjudicative organs of 'supranational organizations' such as the United Nations and the World Trade Organization.").

(89) See, e.g., Harold J. Berman, The Role of International Law in the Twenty-First Century: World Law, 18 FORDHAM INT'L L.J. 1617, 1620 (1995) ("The law of world trade is, of course, regulated in part by international conventions as well as by the laws of national states. So far as its strictly commercial aspects are concerned, however, its primary source is in the patterns and norms of behavior of those who engage in it.").

(90) See supra note 16 and accompanying text. See also Maniruzzaman, supra note 23, at 712 ("Public international law is concerned with relations among States, while the lex mercatoria deals with business transactions among private individuals.").

(91) See, e.g., Gevurtz et al., supra note 35, at 294 ("[S]upplementing applicable binding sources of transactional law are standard agreement forms developed by the International Chamber of Commerce, now called 'Incoterms.'"). For examples beyond the ICC, see Dalhuisen, supra note 21, at 167.

(92) See Antonis Patrikios, Resolution of Cross-Border E-Business Disputes by Arbitration Tribunals on the Basis of Transnational Substantive Rules of Law and E-Business Usages: The Emergence of the Lex Informatica, 38 U. TOL. L. REV. 271, 276 (2006) ("[L]ex informatica is conceived as a generic term encompassing any e-business rules other than those stemming from a specific jurisdiction.").

(93) See, e.g., Koh, Why Transnational, supra note 49, at 750 ("We know about the transnational private law that has emerged in a variety of areas, such as the new lex mercatoria, international finance, international banking law, and the law of cyberspace.").

(94) See supra notes 86-87.

(95) For texts of the various conventions, see Hague Conference in Private International Law, Conventions, http://www.hcch.net/index_en.php?act=conventions.listing (last visited June 2, 2008). See supra note 9 and accompanying text. Comparative law can, of course, mean more than method. See Mathias Reimann, The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century, 50 AM. J. COMP. L. 671, 673 (2002) [hereinafter Reimann, Progress and Failure] ("It pertains mainly to three major areas: foreign law, legal families, and the process of comparison itself. To recognize this knowledge is important because it shows that comparative law is no longer merely a method."). For a detailed discussion of the central importance of comparative law, see infra Part III.

(97) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 230. See also Stephen Zamora, Introduction: International Economic Law, 17 U. PA. J. INT'L ECON. L. 63, 64 n.3 (1996) ("The term transnational law ... emphasizes rules that apply to cross-border transactions other than through a formal international law regime.").

(98) See supra notes 3748 and accompanying text. Cf. Diane P. Wood, Diffusion and Focus in International Law Scholarship, 1 CHI. J. INT'L L. 141, 141 (2000) ("Which 'international' things should the Journal be addressing: classic public international law? Classic comparative law? The law of international organizations? The law of regional groups such as the European Union or the Asia-Pacific Economic Conference? Domestic laws addressed to international issues? National laws regulating international transactions?").

(99) See, e.g., Harvard Law School, HLS Faculty Unanimously Approves First-Year Curricular Reform (Oct. 6, 2006), available at http://www.law.harvard.edu/news/ 2006/10/06_curriculum.php (noting that first-year students will be required to choose among the Law School's three introductory offerings in the international sphere: "public international law," "international economic law," and "comparative law").

(100) Some innovative law schools do offer a course on "Transnational Law," but these appear to be of extraordinarily ambitious scope, encompassing both public and private international law as well as other sources. See. e.g., University of Michigan Law School, Law School Course Description, Transnational Law, available at http://cgi2.www.law.umich.edu/_ClassSchedule/aboutCourse.asp?crse_id=038594; Stanford Law School, Courses, Transnational Law: Introduction, available at http://www.law.stanford.edu/program/courses/details/585/ Transnational%20Law%3A%20%20Introduction.

(101) Cf. Slaughter, International Law, supra note 63, at 230 ("The result is a seemingly random hodgepodge of doctrines and topics connected as a field only by a common 'international' or 'foreign' element. As a reviewer of a leading casebook in the area queried, 'Is there a field in this class?'").

(102) See, e.g., Martinez, supra note 59, at 511 ("[N]ational courts must decide whether to enforce the judgments of foreign courts. There is no general international treaty on enforcement of judgments comparable to the New York Convention on enforcement of arbitration awards, and so enforcement in most jurisdictions is currently governed by domestic statutes or common law rules.").

(103) See also Trachtman, supra note 14, at 44-45 ("In addition to this 'inter-domestic' law, there is a small corpus of public international law that regulates or affects international business transactions.").

(104) Mark Gibney et al., Transnational State Responsibility for Violations of Human Rights, 12 HARV. HUM. RTS. J. 267, 279 (1999). See also Sally Engle Merry, New Legal Realism and the Ethnography of Transnational Law, 31 LAW & SOC. INQUIRY 975, 988 (2006) ("[A]ctivists working on violence against women in Delhi said that the national discourse of rights is far more important for promoting reforms in the area of gender violence than international human rights principles").

(105) See, e.g., Mariano-Florentino Cuellar, The Mismatch Between State Power and State Capacity in Transnational Law Enforcement, 22 BERKELEY J. INT'L. L. 15, 34 (2004) ("Yet much of the global attack [on criminal finance] is still carried out through domestic laws rather than elaborate international legal mechanisms used for trade or multilateral sovereign lending."). See also Orentlicher, supra note 53, at 1134 ("The legitimacy of bystander justice may be in greatest doubt when national prosecutors and judges seek to extend their writ beyond established boundaries of state assent, whether expressed through participation in a relevant treaty, ad hoc consent, or customary international law."); Eric Bentley Jr., Toward an International Fourth Amendment: Rethinking Searches and Seizures Abroad After Verdugo-Urquidez, 27 VAND. J. TRANSNAT'L L. 329, 351 (1994) (discussing how the legal framework to conduct the search of the home of a Mexican suspect in Mexico by Mexican and American police is the Fourth Amendment, rather than international law).

(106) Reimann, Beyond National, supra note 18, at 1112. See also Trachtman, supra note 14, at 35 ("No one would argue, however, that the subject matter of this journal should be limited to treaties and customary international law, or law between states. Rather, it should include outward- and inward-regarding domestic law because this domestic law affects relations between different countries and between people in different countries."). Cf. Berman, supra note 89, at 1619 ("The breadth of Jessup's definition is counteracted to a certain extent by the word 'transnational,' which takes the national state as the basic point of reference."); Christopher A. Whytock, Transnational Law, Domestic Courts, and Global Governance 17 (unpublished manuscript) (Mar. 15, 2007), available at http://ssrn.com/abstract=923907 ("Challenging the distinction between national and international as a basis for legal classification, he [Jessup] explicitly included in his definition domestic legal rules that apply to transnational activity.").

(107) JESSUP, TRANSNATIONAL LAW, supra note 28, at 98.

(108) P. John Kozyris, Comparative Law for the Twenty-First Century: New Horizons and New Technologies, 69 TUL. L. REV. 165, 174 (1994).

(109) Anne-Marie Slaughter, A Liberal Theory of International Law, 98 AM. SOC'Y INT'L L. PROC. 240, 245 (2000) [hereinafter Slaughter, Liberal Theory].

(110) See supra note 95 and accompanying text. See also Trachtman, supra note 14, at 44-45 ("International business law, like private international law, thus may be viewed as substantially composed of domestic law, including domestic conflict of laws rules. This does not reduce its character as law, nor does it reduce its influence over international business relations.").

(111) Richard L. Abel, Transnational Law Practice, 44 CASE W. RES. L. REV. 737, 761 (1994). See also John T. Suttles, Jr., Transmigration of Hazardous Industry." The Global Race to the Bottom, Environmental Justice, and the Asbestos Industry, 16 TUL. ENVTL. L.J. 1, 8 (2002) ("It seems intuitively logical that corporations acting in their own enlightened self interest will invariably shift production from industrialized countries with strict occupational health and environmental standards to developing nations with more lenient regulations once the marginal costs of regulatory compliance exceed the cost of relocation.").

(112) Friedmann, Human Welfare, supra note 27, at 118-19.

(113) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 303.

(114) Tanaka, supra note 38, at 243.

(115) Wood, supra note 98, at 143. See also Bederman, supra note 11, at 74 ("The point here is that the international legal system remains primitive and unformed, and that often recourse must be had by 'borrowing' legal rules from domestic law.").

(116) Wood, supra note 98, at 142. See also Martinez, supra note 59, at 431 ("There is no 'supreme court' capable of resolving conflicting interpretations of law by different courts, and of course, there is no unifying document like the U.S. Constitution or the Federal Rules of Civil Procedure to turn to for guidance. No international sovereign imposes order on the system.").

(117) See, e.g., Koh, Is International Law, supra note 55. This point is not without recent controversy. See, e.g., Koh, Bringing International, supra note 56, at 666 ("the revisionist position represents a full-scale assault on the centuries-old practice of judicial internalization of customary international law by U.S. federal courts.").

(118) See, e.g., Gevurtz et al., supra note 35, at 304 ("At the time the United States ratified the ICCPR [International Covenant on Civil and Political Rights], the United States attached a declaration asserting that the treaty was not self-executing. This raises the question of whether the defense can claim rights under the treaty without implementing legislation.").

(119) See, e.g., id. at 325 ("Further, in U.S. contracts casebooks, the CISG is introduced, if at all, as some form of 'international law,' with its status before U.S. courts not clearly explained, rather than as federal law that displaces the UCC where applicable."). See also Koh, Transnational Public, supra note 49, at 2361 (noting that the Supremacy Clause "nowhere distinguished between so-called self-executing treaties (which become part of domestic law immediately upon ratification) and non self-executing treaties (which must be implemented by statute to acquire domestic legal effect)").

(120) See Medellin v. Texas, No. 06-984, slip op. (U.S. Sup. Ct. Mar. 25, 2008).

(121) Waters, .supra note 59, at 499.

(122) Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 143 ("In the international field there is at present nothing comparable to a legislature, and the operation of the so-called law-making treaty is both uncertain and leaves many loose ends.").

(123) Id. at 320.

(124) Hathaway, supra note 35, at 472-73.

(125) Id. at 499 (emphasis added).

(126) Id. at 521.

(127) Id. at 516.

(128) Id. at 535.

(129) Id. at 528. Some commentators have critiqued Hathaway's earlier work focusing on human rights treaties. See Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 EUR. J. INT'L. L. 171 (2003). For Hathaway's response, see Oona A. Hathaway, Testing Conventional Wisdom, 14 EUR. J. INT'L L. 185 (2003).

(130) Leland M. Goodrich, The Changing United Nations, in TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP 268, (Wolfgang Friedmann et al., eds., 1972).

(131) Gibney et al., supra note 104, at 295.

(132) Koh, Bringing International, supra note 56, at 625-26. See also Koh, Transnational Public, supra note 49, at 2371 ("Transnational public law litigation thus constitutes a novel and expanding effort by both states and individual plaintiffs to fuse international legal rights with domestic judicial remedies."); Koh, Why Transnational, supra note 49, at 747 ("Transnational law matters because it increasingly influences laws and policies that govern us, particularly when international law and policies become domesticated into U.S. law and policies.").

(133) Slaughter, Liberal Theory, supra note 109, at 248.

(134) Id. at 246.

(135) Aceves, supra note 19, at 140.

(136) Whytock, supra note 106, at 15.

(137) Stephens, supra note 59, at 37. Classic illustrations of this phenomenon occur in international human rights and criminal law. With respect to the former, see, e.g., Merry, supra note 104, at 991 ("I found little evidence that human fights law is being imposed on a nation against its wishes by the international system. In fact, as a system of global law, the human rights regime is strikingly lenient. Only when it becomes part of national law does it have coercive power."); Stephens, supra note 59, at 2 ("Human fights activists, litigators, and scholars the world over are actively seeking means to hold accountable those responsible for egregious human fights abuses. Given the absence of effective international mechanisms, enforcement generally occurs within domestic legal systems.") With respect to the latter, see, e.g., Cuellar, supra note 105, at 32 ("Countries seem to extol the expressive function of multilateral approaches, but in practice they rarely use multilateral treaties to advance specific investigations ... Instead there is growing extraterritorial use or threat of use of domestic legal authority to achieve international enforcement objectives.").

(138) Aceves, supra note 19, at 173.

(139) Id. at 139. Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 163 ("Just as the principal force of contemporary international law in general lies in the setting of universally accepted standards of conduct rather than in enforceability... ").

(140) Koh, Bringing International, supra note 56, at 680. See also Sassen, supra note 59, at 28 ("Detecting the extent to which the global is embedded and filtered through the national ... is one way of understanding whether a possibility lies therein for citizens... to demand accountability of global economic actors through national institutional channels, rather than having to wait for a 'global' state.").

(141) Martinez, supra note 59, at 496. As just one example, "U.S. courts routinely apply local procedural rules to all actions, no matter what law governs the substantive claim." Stephens, supra note 59, at 10.

(142) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 147.

(143) See supra note 121 and accompanying text.

(144) Koh, Transnational Public, supra note 49, at 2372. At one point, Koh even defines transnational public law litigation narrowly as "suits brought in United States courts by individual and governmental litigants challenging violations of international law." Id. at 2347. He is, however, careful to point out that "nothing about the phenomenon requires that it be confined to this domestic forum." Id. at 2372.

(145) Whytock, supra note 106, at 1. Suits brought under the Alien Torts Claim Act (ATCA) are perhaps the quintessential expression of this phenomenon.

(146) Indeed, at least one scholar treats enforcement as central to his definition of transnational:
     I will use the phrase "transnational law" to mean norms and
   institutions which span, are valid in, or apply to more than one
   country or jurisdiction ... I will describe a regime as
   "transnational" only if it has the force of law, or the force of
   force, behind it. Some agency must exist which can put "muscle"
   into enforcement of norms.


Lawrence M. Friedman, Borders: On the Emerging Sociology of Transnational Law, 32 STAN. J. INT'L L. 65, 66 (1996) (emphasis added).

(147) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 30. Cf. id. at 119 ("The relative paucity of positive norms in international law is partly the cause and partly the effect of the absence of international constitutional organs entrusted with the functions of legislation, administration and adjudication."). Friedmann goes further to discuss the possibility of international institutions in the realm of human rights, military forces, and criminal law. See id. at 63 ("While in theory such fields as the protection of human rights, as formulated in the United Nations Declaration of Human Rights of December 1948, is a universal concern of mankind.., the disparity of standards, systems and values is too great to make an effective international organisation possible in this field."); id. at 94-95 ("There is a burning and vital need for the establishment of effective international military force, as provided for in the hitherto abortive provisions of the U.N. Charter, a force that will be able to enforce the authority of the international community against all states, big and small."); id. at 168 ("Ultimately an international criminal court will have to be created to administer the expanding international criminal law.").

(148) See, e.g., Martinez, supra note 59, at 437 ("But while recent world events may have dampened optimism about international law and international cooperation, the institutions created in that burst of premillenial enthusiasm now have a life of their own; how effective they will be is still open to question, but their existence (at least for now) is not.").

(149) There is of course a threshold standing limitation that often limits these fora: "[i]n most international tribunals, actions can only be brought by states or authorized intergovernmental organizations." Aceves, supra note 19, at 172.

(150) Consider, for example, the aspirational goals of Article 25 of the Universal Declaration of Human Rights, adopted by the General Assembly: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services...." Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 25, U.N. Doc. A/810 (Dec. 10, 1948). To belabor the obvious, consider the implication if this resolution had force of law.

(151) JESSUP, TRANSNATIONAL LAW, supra note 28, at 58.

(152) Francis De-k, Neutralio, Revisited, in TRANSNATIONAI. LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP 137, 151 (Wolfgang Friedmann et al., eds., 1972). As Wolfgang Friedmann observes:
   The hard but inescapable conclusion is that the quest for
   permanent, institutional transfer of the power to use force in
   international relations from the nation state to an organized
   international community--a quest pursued by the League of Nations
   and resumed after the end of the Second World War through the
   United Nations Charter--has failed.


Friedmann, Human Welfare, supra note 27, at 117.

(153) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 154-55. See also Wood, supra note 98, at 143 ("Yet, particularly given the very narrow scope of the ICJ's jurisdiction, it is difficult to see how these sources can add up to a body of international law that finds international acceptance."). Cf. Schachter, supra note 31, at 895 ("He [Jessup] enthusiastically supported a proposal under which the highest national courts faced with questions of international law would be able to seek advisory opinions from the International Court. Although these proposals were favored in academic and professional circles, they have not won support from major governments."). The court seems to adjudicate few cases, and those cases seem largely focused on territorial disputes. See International Court of Justice, List of Cases referred to the Court since 1946 by date of introduction, http://www.icjcij.org/docket/index.php?pl=3&p2=2 (last visited June 2, 2008). To be sure, the ICJ will on rare occasion decide a case of significance. See, e.g., Case Concering the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. (Feb. 14) (ruling that the Congo's Minister of Foreign Affairs enjoyed immunity from prosecution under international law, thereby requiring Belgium to rescind an arrest warrant issued under claimed universal jurisdiction).

(154) Orentlicher, supra note 53, at 1087.

(155) Aceves, supra note 19, at 175.

(156) Although even here, of course, enforcement mechanisms are far weaker than those in national systems. And the General Agreement on Tariffs and Trade (GATT), upon which the WTO is based, gives significant leeway to national laws that impose protectionist measures in a variety of areas, including unfair trade, dumping, balance of payments, and national security.

(157) Suttles, supra note 111, at 55.

(158) This is a point at least one of transnationalism's pioneers recognized, but perhaps exhibited undue optimism over:
   It may, of course, be said that this type of sanction, by exclusion
   from participation in financial aid, may lead to abuse of the power
   of the economically strong against the economically weak. However,
   any sanction is an exercise of power by the stronger against the
   weaker and the decisive test is in whose name it is exercised. As
   long as the World Bank is a genuine organ in the international
   community there would seem to be adequate controls against an abuse
   of power.


FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 92 n. 14.

(159) Despite its overall bent, the New York Convention, much like GATT, does also give deference to national laws. Most famously, Article V states that:

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

(b) The recognition or enforcement of the award would be contrary to the public policy of that country.

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. V(2), June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3. In practice, however, national courts have interpreted this exception narrowly.

(160) Perhaps surprisingly, the substantive law in arbitrated disputes is often national law. See Drahozal, supra note 44, at 537 ("The available empirical evidence--from arbitration clauses, arbitration awards, and a survey of participants in the international arbitration process--suggests that in most cases the costs of transnational law to parties exceed its benefits; i.e., the use of transnational commercial law in international arbitration is not at all common.").

(161) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 142. See also Friedmann, Human Welfare, supra note 27, at 118 ("The evidence is indeed overwhelming that a direct attack on the prerogatives of the national state--through the transfer of major decision-making powers from the national to the international level--has not been achieved and will not be achieved within this generation.").

(162) Friedman, supra note 146, at 66.

(163) See supra notes 28-36 and accompanying text.

(164) Koh, Bringing International, supra note 56, at 677. See also Bederman, supra note 11, at 6768 ("These actors would include transnational corporations (including cross-border organized crime syndicates), nongovernmental organizations ('NGOs'), regional bodies that integrate activities across national frontiers, ethnic groups, irredentist movements and terrorist organizations, supranational organizations (like the European Union or NAFTA), transnational institutions (like the Roman Catholic Church), and intergovernmental institutions.").

(165) Slaughter, Liberal Theory, supra note 109, at 242.

(166) Suttles, supra note 111, at 37. See also Baumgartner, supra note 59, at 1360.

(167) Slaughter, International Law, supra note 63, at 230 (emphasis added).

(168) Cf. Abdullah El-Erian, International Law and the Developing Countries, in TRANSNATIONAL LAW IN A CHANGING SOCIETY: ESSAYS IN HONOR OF PHILIP C. JESSUP 84, 84 (Wolfgang Friedmann et al., eds., 1972) ("With his concern for the individual and for the community interest on the international level, Professor Jessup paved the way for the advent of an international legal order of a truly universal character...").

(169) See, e.g., Delbruck, supra note 19, at 41 (noting that "NGOs do not possess a democratic mandate and in many cases are not internally democratically structured").

(170) Baumgartner, supra note 59, at 1372-73.

(171) Id. at 1393. See also Bederman, supra note 11, at 68 ("Powerful business interests, which previously abstained from direct involvement in international lawmaking processes (preferring to merely influence domestic decisionmakers), are actively lobbying in diplomatic settings.").

(172) Interestingly, liberal theory also supports the transnationalist emphasis on domestic institutions. See, e.g., Aceves, supra note 19, at 183 ("In contrast to the state-centric paradigm, liberal theory posits that the conditions for peace must be targeted on individuals and implemented through domestic institutions."); Suttles, supra note 111, at 36-37 ("International human rights advocates propound a transnational law litigation model consonant with Liberal theories of international relations, which focus on the role of individuals and domestic institutions in the international discourse of human rights conflicts.").

(173) Sassen, supra note 59, at 13-14.

(174) Dalhuisen, supra note 21, at 132.

(175) See, e.g., Patrikios, supra note 92, at 295 ("Multinational businesses and international law firms have played a role in the shaping of the lex mercatoria. It follows that their influence on the development of the lex informatica is likely to be of equal or even greater significance.").

(176) For a perspective from the developing world, see, e.g., Maniruzzaman, supra note 23, at 718 ("The efforts of western jurists towards the development of a universal lex mercatoria are aimed at securing their multinational corporations' foreign investment in the developing world and the preservation of the political and economic power of the western world.").

(177) Charles N. Brower & Jeremy K. Sharpe, The Creeping Codification of Transnational Commercial Law. An Arbitrator's Perspective, 45 VA. J. INT'L L. 199, 200 (2004).

(178) See, e.g., JESSUP, TRANSNATIONAL LAW, supra note 28, at 113.

(179) Cf. Don Suh, Note, Situating Liberalism in Transnational Legal Space, 12 DUKE J. COMP. & INT'L L. 605, 614 (2002) ("The critique is not of liberalism's shortcomings as an analytical tool in explaining international outcomes, but of liberalism's political assumptions and motivations, the qualitative nature of liberalism itself--it is the politics of an argument that is being contested in the debate over liberalism.").

(180) See JURGEN HABERMAS, BETWEEN FACTS AND NORMS 118-31 (William Rehg trans., MIT Press 1996) (1992).

(181) See G. Edward White, The Inevitability of Critical Legal Studies, 36 STAN. L. REV. 649, 655 (1984).

(182) See, e.g., Bryant G. Garth, Taking New Legal Realism to Transnational Issues and Institutions, 31 LAW & SOC. INQUIRY 939, 940 (2006).

(183) Slaughter, International Law, supra note 63, at 208.

(184) Id. at 206.

(185) Koh, Transnational Legal Process, supra note 58, at 205. Cf. Aleinikoff, Thinking Outside, supra note 88, at 2014-15 (seeing "transnational relations as an environment of conversations, with each state possessing the ultimate power to withdraw from any particular conversation altogether.").

(186) Waters, supra note 59, at 490.

(187) Martinez, supra note 59, at 466.

(188) In the domestic context, the critical legal studies movement, for all of its prescriptive limitations, cast doubt on the legal process school by uncovering power relations inherent in the process of legal legitimization. See, e.g., White, supra note 181, at 665. Interestingly, the legal process school seems to have had a renaissance in the domestic context. See, e.g., Edward L. Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions, 109 HARV. L. REV. 1393 (1996).

(189) See, e.g., Michel Rosenfeld, Law As Discourse: Bridging the Gap Between Democracy and Rights, 108 HARV. L. REV. 1163, 1168 (1995) (reviewing JURGEN HABERMAS, BETWEEN FACTS AND NORMS (1995)) (explaining that in successful communicative action, "actors are oriented toward reaching a common understanding rather than achieving personal success").

(190) HABERMAS, supra note 180, at 119.

(191) A. Michael Froomkin, Habermas@Discourse.Net: Toward a Critical Theory of Cyberspace, 116 HARV. L. REV. 751, 775 (2003). Froomkin does develop Habermas' theories in the context of Internet standard-setting procedures, which may represent a special case of co-equal peers engaged in Habermasian discourse.

(192) See, e.g., Michael A. Livingston, Postmodernism Meets Practical Reason, 107 YALE L.J. 1125, 1147-48 (1998) (reviewing DENNIS PATTERSON, LAW AND TRUTH (1996)).

(193) As one commentator points out:
      Even with the greater flexibility surrounding the operation of
   discourse theory in the realm of law, it is most unlikely that the
   proceduralist paradigm of law would yield any satisfactory legal
   resolution of the abortion issue. Lurking beneath the abortion
   controversy, there is such a sharp clash in value preferences and
   interests that no dialogical compromise or balancing seems
   plausible.


Rosenfeld, supra note 189, at 1178.

(194) Cf. Wood, supra note 98, at 142 ("Indeed, the recent attention to methodology may throw light on the vexing question of whether there even is something that can be called an international legal order as opposed to a political or social order.").

(195) See, e.g., Reimann, Progress and Failure, supra note 96, at 672 (noting "rising complaints about the discipline's malaise").

(196) Id. at 687.

(197) Hiram E. Chodosh, Comparing Comparisons: In Search of Methodology, 84 IOWA L. REV. 1025, 1029 (1999) [hereinafter Chodosh, Comparing Comparisons].

(198) Baumgartner, supra note 59, at 1386. See also Reimann, Progress and Failure, supra note 96, at 673 ("[C]omparative law has been a serious failure because it has not developed into a coherent and intellectually convincing discipline.").

(199) Cf. Trachtman, supra note 14, at 44 ("the principal component of 'international' business law is simply comparative law, in a broad sense, dealing with the application of inward-regarding domestic law to international business. From a business standpoint, comparative law inquires what the legal and regulatory environment will be in a foreign country.").

(200) Stephens, supra note 59, at 57. See also Dalhuisen, supra note 21, at 188 ("Rather, we are here concerned first with the proper operation of parallel legal orders that possess disparate competencies in governing relationships or transactions within their reach. Our belief in pluralism finds here its normal sequence in the formation, recognition, and operation of all living law.").

(201) Chodosh, Comparing Comparisons, supra note 197, at 1027-28.

(202) Kozyris, supra note 108, at 173-74. See also Trachtman, supra note 14, at 35 ("Whether to choose domestic or international law to respond to particular issues is again a choice of institutional design. Do we achieve more by cooperating, and if so, how can we cooperate best?").

(203) Kozyris, supra note 108, at 166.

(204) Interestingly enough, this perspective emphasizes an oft-neglected portion of Article 38, the notion that "the general principles of law recognized by civilized nations" can lead to international law. See supra note 13; Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 191-92 ("In all of these fields it is, expressly or implicitly, the 'general principles of law recognised by civilized nations' from which a body of legal rules has to be developed. This means in essence the application of a comparative study of legal principles to the developing international law."). Of course, the reference to "civilized nations" can quite justifiably be viewed with ridicule. See supra note 24 and accompanying text.

(205) Lehmann, supra note 47, at 763. Interestingly, careful reading suggests that transnationalism's pioneers understood this point. For example, Jessup discusses various scenarios using comparative methodologies. See JESSUP, TRANSNATIONAL LAW, supra note 28, at 16-22. For his part, Friedmann tellingly writes that "[a] comparative assessment of the national laws, between which a measure of harmonization and internationalization is to be achieved, means an analysis of their major similarities and differences, both substantially and procedurally, as a preliminary to an attempt at adjustment in common norms." FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 186-87.

(206) Reimann, Beyond National Law, supra note 18, at 1111. See generally William Ewald, Comparative Jurisprudence (I): What Was It Like to Try a Rat?, 143 U. PA. L. REV. 1889 (1995).

(207) See, e.g., Reimann, Progress and Failure, supra note 96, at 675 ("Knowledge of foreign law is an indispensable prerequisite to explicit comparison, information about other legal regimes is the discipline's most valuable contribution to legal practice, and its production is what most comparatists do in fact most of the time.").

(208) See, e.g., Baumgartner, supra note 59, at 1374 (noting the "differences in legal history, culture, economy, and procedural philosophy, which severely impede the endeavor of someone trained in the legal system of one country to locate the rules and principles in point in another, let alone to gain a proper understanding of their relevance.").

(209) Kozyris, supra note 108, at 175. See also id. ("Certain topics, such as stare decisis, cause versus consideration, and judicial review, have received the lion's share of comparative attention and now deserve our benign neglect.").

(210) Reimann, Progress and Failure, supra note 96, at 677. Cf. Bederman, supra note 11, at 75 ("[T]he more abstract the principles, the greater the consensus of legal systems, but also the less useful the rule.").

(211) Chodosh, Comparing Comparisons, supra note 197, at 1056. See also Reimann, Progress and Failure, supra note 96, at 684 ("Comparatists in fact rarely employ the comparative method in any sophisticated or sustained fashion but spent most of their time and energy, both as scholars and teachers, accumulating and transmitting knowledge about foreign law and legal families.").

(212) Reimann, Beyond National Law, supra note 18, at 1116-17. See also id. at 1113 ("[T]ransnational systems have yet to be explored. Our discipline has produced almost no comparative knowledge about, or understanding of, their genesis, institutions, actors, sources, and processes. Nor has comparative law explored the relationship among supranational systems or between them and national laws.").

(213) See, e.g., Koh, Why Transnational, supra note 49, at 747 ("Through repeated cycles of 'interaction-interpretation-internalization,' interpretations of applicable global norms are eventually internalized into states' domestic legal systems.").

(214) See, e.g., Waters, supra note 59, at 526 (noting how "courts around the world use comparative law to chip away at the legal foundations for the death penalty within their own domestic regimes.").

(215) See, e.g., Stephens, supra note 59, at 57 ("Cross-cultural efforts to coordinate human rights litigation strategies suffer from this lack of a comparative perspective and the resulting translation failures.").

(216) See, e.g., Baumgartner, supra note 59, at 1306 ("[T]ogether with international relations theory, comparative procedural analysis is perhaps the most important building block in the construction of a distinct field of transnational litigation.").

(217) See Chodosh, Globalizing, supra note 42, at 857-58. Examples of the former include "immigration law, restrictions on trade of dual-use technologies or hazardous waste"; of the latter, include "trade laws reducing tariff and non-tariff barriers." Id.

(218) See id. at 858-59 ("These doctrines may focus on the forum (state A), the legal personality of the parties (from A), the location of the key facts at issues (state B), or the nature of the law in conflict.").

(219) See id. at 859. Examples of the former include "intellectual property protections, or types of damages in civil litigation"; of the latter, include "U.S. death penalty for terrorists."

(220) The goal with this technique is "to create partial or complete uniformity among previously divergent laws, ranging from trade to human rights." Id.

(221) See id. ("[I]nstitutional allocations of power may create supra-national forms of political organization (e.g., the European Union, the World Trade Organization, NATO, Interpol, etc.").

(222) Id. at 860.

(223) For an early reference to this debate, see Philip C. Jessup, Diversity and Uniformity in the Law of Nations, 58 AM. J. INT'L L. 341, 353 (1964).

(224) See, e.g., Vicki L. Jackson, Constitutional Comparisons. Convergence, Resistance, Engagement, 119 HARV. L. REV. 109 (2005); Mark Tushnet, Transnational/Domestic Constitutional Law, 37 LOY. L.A. L. REV. 239 (2003).

(225) Gevurtz, supra note 35, at 328.

(226) See, e.g., Stephen Breyer, Assoc. J., Supreme Court of the United States, The Supreme Court and the New International Law, Address Before The American Society of International Law (Apr. 4, 2003), available at http://www.supremecourtus.gov/publicinfo/ speeches/sp_04-04-03.html (noting that historically "the Court's members understood the importance of international law and its direct relation to their work. Many members of the Supreme Court continue to hold that view--a view that now extends beyond public international law to embrace foreign law and legal institutions as well.").

(227) See, e.g., Donald J. Kochan, Sovereignty and the American Courts at the Cocktail Party of International Law: The Dangers of Domestic Judicial Invocations of Foreign and International Law, 29 FORDHAM INT'L L.J. 507, 548 (2006) ("[D]emocracy demands that the people be the masters of their own domain. Judicial injection of foreign and supposed international law violates this principle and denigrates the reverence many have had for the uniqueness of the U.S. system.").

(228) Id. at 507.

(229) Id. at 542.

(230) Id.

(231) Cf. Aleinikoff, Thinking Outside, supra note 88, at 1995 ("[I]t would not be an infringement of popular sovereignty for a court to apply a transnational norm if constitutional norms laid down by the people so authorize.").

(232) Decades ago, Jessup even drew the analogy to consent in the domestic context:
      [Y]et the adoption of many new legal standards to comport with
   the changing mores of the times depends upon persuading some group
   or groups to give consent. In the United States the Congress must
   consent before there is a Child Labor Law, and the Senate must
   consent before the United States becomes bound by an international
   labor convention or an international human rights convention.... To
   put the still more obvious case, it is asserted that the United
   States cannot be hailed before an international tribunal without
   its consent, as through the passage of the Tucker Act.


JESSUP, TRANSNATIONAL LAW, supra note 28, at 53-54.

(233) Aleinikoff, Thinking Outside, supra note 88 at 1994.

(234) Tushnet, supra note 224, at 263.

(235) Aleinikoff, Thinking Outside, supra note 88, at 1994.

(236) Davis, supra note 37, at 382.

(237) Aleinikoff, Thinking Outside, supra note 88, at 1996. Cf. Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT'L L. 43, 56 (2004) [hereinafter Koh, International Law].

(238) Tushnet, supra note 224, at 264. Jessup also appreciates this insight:
      Judges in national courts do not have the same freedom in
   determining what law to apply, but their process of making new case
   law is not fundamentally very different from the international
   judge's resort to the general principles of law, even though they
   label their source as the "wisdom of the founding fathers" or the
   "spirit of the constitution" or the "rule of reason."


JESSUP, TRANSNATIONAL LAW, supra note 28, at 96.

(239) See supra notes 232-236.

(240) See, e.g., Davis, supra note 37, at 382 ("Otherwise, judges may look to transnational law for guidance, but they are not bound by it, and a judge might as easily reject a foreign court's approach as accept it.").

(241) See, e.g., Delbruck, supra note 19, at 38 ("In other words, the liberal-democratic position advocates some form of democratically elected representation of the peoples, possibly through national parliaments, rather than visionary universal suffrage.").

(242) Arthur T. von Mehren, The Rise of Transnational Legal Practice and the Task of Comparative Law, 75 TUL. L. REV. 1215, 1216-17 (2001).

(243) Bederman, supra note 11, at 76.

(244) FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 213-14. See also von Mehren, supra note 242, at 1223 ("[T]ransnational legal practice will continue to need comparative law in the deep sense until, and perhaps even after, the unlikely day when a single system of substantive law, administered by a supra-national judicial system, is in place.").

(245) This is a point the literature on transnationalism acknowledges well. See, e.g., Koh, International Law, supra note 237, at 53 ("Unlike nationalist jurisprudence, which rejects foreign and international precedents and looks for guidance primarily to national territory, political institutions, and executive power, the transnationalist jurisprudence assumes America's political and economic interdependence with other nations operating within the international legal system."); Koh, Why Transnational, supra note 49, at 749 ("Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy.").

(246) Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 369-70 (pondering "the extent to which co-operation and international efforts directed to the physical, economic and social survival of mankind will prevail over the divisive elements of an international society entirely based on the, more or less hostile, coexistence of a large number of sovereign states").

(247) Id. at 48.

(248) Martinez, supra note 59 at 474-75.

(249) See, e.g., Koh, International Law, supra note 237, at 44 ("The framers and early Justices understood that the global legitimacy of a fledgling nation crucially depended upon the compatibility of its domestic law with the rules of the international system within which it sought acceptance.").

(250) Waters, supra note 59, at 558-59. See also Koh, Transnational Public, supra note 49, at 2377 ("Since Sabbatino, American courts have given undue credence to separation of powers and judicial incompetence claims in international law cases. That decision has unfortunately contracted American courts' once-vibrant, historically important role in the development of international law.").

(251) Gevurtz, supra note 35, at 283.

(252) VOLTAIRE, supra note 1, at 155. As Friedmarm warns, "[a]n artificial inflation of cultural distinctiveness in the field of international relations and law is more than just a harmless exercise in hypocrisy and narcissim." FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 324.

(253) As Wolfgang Friedman noted over four decades ago, "international society is in a primitive phase of development, as regards the substitution of the rule of law for the rule of force." FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 118. His observation rings sadly true over four decades later.

(254) JESSUP, TRANSNATIONAL LAW, supra note 28, at 109.

(255) As Wolfgang Friedmann notes:
      In terms of objectives, powers, legal structure and scope, the
   present state of international organisation presents an extremely
   complex picture. It reflects the state of a society that is both
   desperately clinging to the legal and political symbols of national
   sovereignty and being pushed towards the pursuit of common needs
   and goals that can be achieved only by a steadily intensifying
   degree of international organisation.


FR1EDMANN, CHANGING STRUCTURE, supra note 12, at 293-94. See also id. at 21 (noting the "new problems of clash and adjustment between the still overwhelmingly predominant political organization of the world in national sovereign states, and the internationalisation of economic interests and activities"); de B. Katzenbach, supra note 34, at 416 ("[W]e must deal directly with the problems raised by multiple authority in regulating transnational events."). Cf. Jenks, supra note 78, at 82 ("It is because it is a pluralistic society that the status within it of a wide range of varied types of multinational entity constitutes one of the central problems of the future of international law.").

(256) Cf. FRIEDMANN, CHANGING STRUCTURE, supra note 12, at 59 ("What is not yet sufficiently realized is that International Law is no longer exclusively a consolidation of the status quo but a vital factor in the evolution of international society.").

(257) The challenge here, in a broad sense, is similar to one philosophers face. As Richard Rorty observes, "[p]hilosophy's central concern is to be a general theory of representation, a theory which will divide culture up into the areas which represent reality well, those which represent it less well, and those which do not represent it at all (despite their pretense of doing so)." RiCHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE 3 (1979).

(258) VOLTAIRE, supra note 1, at 147.

REZA DIBADJ, Professor, University of San Francisco School of Law. I thank the American Association of Law Schools (AALS), Planning Committee for the Conference on International Law, for giving me the opportunity to present an early draft of this Article in Vancouver, Canada on June 19, 2007.
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