Gregory Shaffer

Gregory Shaffer
University of California, Irvine | UCI · School of Law

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169
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Introduction
Skills and Expertise

Publications

Publications (169)
Article
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There is a new empirical turn in international legal scholarship. Building on decades of theoretical work in law and social science, a new generation of empirical studies is elaborating on how international law works in different contexts. The theoretical debate over whether international law matters is a stale one. What matters now is the study of...
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This article addresses the interaction of hard and soft law in a fragmented international law system. This issue is increasingly important in a world where functional international regimes proliferate to address globalization and national interdependence without any overarching legal hierarchy. The article makes three core claims in contradistincti...
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In 1930, during the Great Depression, Professor Karl Llewellyn declared in the Harvard Law Review that “ferment” was abroad in the land and legal scholarship, declaring “realism” a powerful scholarly force. In the past year, we have seen our own ferment: the world has shown us the folly of some of legal scholarship’s most powerful intellectual assu...
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This is the introductory chapter for the book Transnational Legal Orders (CUP 2015). The chapter sets out an analytic framework for building theory and studying transnational legal orders (TLOs), and it consists of six sections. Section I defines the concept of TLOs and its three composite terms – transnational, legal, and order. Section II compare...
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This Article builds from original fieldwork to show what lies behind China's remarkably successful use of international trade law to take on the United States and Europe. The World Trade Organization ("WTO") is unique in China's international relations as it is the only forum where China, with its anti-legalist traditions, has resolved its disputes...
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This chapter introduces the volume, documents evidence of the globalization of legal education in a particular way that draws on the US model, and examines the processes that account for this US influence that grew with the end of the Cold war and the rise of corporate law firms and neoliberal economic processes. It talks, for example, about the di...
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This book discusses the global and local processes of legal education reform and resistance and explains what these processes mean for law and lawyers inside and outside of the United States. It provides critical insights into how these transnational processes operate in different jurisdictions around the world in light of globalization and local l...
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Victorious after World War II and the Cold War, the United States and its allies largely wrote the rules for international trade and investment. Yet, by 2020, it was the United States that became the great disrupter – disenchanted with the rules' constraints. Paradoxically, China, India, Brazil, and other emerging economies became stakeholders in a...
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The Oxford Handbook of Transnational Law offers a comprehensive compendium for the field of transnational law by providing a unique and unparalleled treatment and presentation in an area that has become one of the most intriguing and innovative developments in legal doctrine, scholarship, theory, and practice today. This in itself constitutes an am...
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The design of empirical research and theory-building projects in the sociolegal literature on criminalization is often premised on a presumed dichotomy between domestic and international planes of criminal lawmaking. However, in a global era in which domestic processes of criminalization are increasingly shaped by norms, institutions, and actors de...
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Transnational Legal Ordering of Criminal Justice - edited by Gregory Shaffer July 2020
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Speed is often touted as an advantage of arbitration. In recent years, however, some have worried that investment arbitration risks losing this advantage. Concerns about the length of investor-State dispute settlement (ISDS) proceedings have also been raised in the discussion about ISDS reform. This article analyses the duration of ISDS proceedings...
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Transnational Legal Ordering of Criminal Justice - edited by Gregory Shaffer July 2020
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Cambridge Core - Socio-Legal Studies - Transnational Legal Ordering of Criminal Justice - edited by Gregory Shaffer
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Transnational Legal Ordering of Criminal Justice - edited by Gregory Shaffer July 2020
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Transnational Legal Ordering of Criminal Justice - edited by Gregory Shaffer July 2020
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Transnational Legal Ordering of Criminal Justice - edited by Gregory Shaffer July 2020
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The Shifting Landscape of Global Trade Governance - edited by Manfred Elsig August 2019
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This framework introductory chapter to our book Constitution-Making and Transnational Legal Order (CUP 2019) addresses the transnational flow of ideas and institutions that shape how national constitutions are made. It examines the array of transnational influences, actors, and ideas that provide the very grammar for constitutional projects. The in...
Article
International trade law has been oblivious to social inclusion. Although trade is not primarily to blame for rising inequality and social conflict, it is not wholly innocent either. International trade law plays a powerful role in fomenting the conditions under which people thrive, implicating social equality and inclusion. The impacts of trade and...
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Rethinking Society for the 21st Century - by International Panel on Social Progress (IPSP) July 2018
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This Article applies the theory of comparative institutional analysis to evaluate the trade-offs associated with alternative mechanisms for resolving investment disputes. We assess the trade-offs in light of the principle of accountability under the rule of law, which underpins the goals of fairness, efficiency, and peace that are attributed to inv...
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Introduction to Symposium on Industry Associations in Transnational Legal Ordering - Volume 111 - Gregory Shaffer, Melissa J. Durkee
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There is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations betwe...
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This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession. Employing a range of original data from twenty empirical studies, the book details the emergence of a new corporate legal sector in India including large and sophisticated law firms and in-house legal departments, as well as legal proc...
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This article categorizes three approaches to theorizing transnational legal ordering that respectively address private legal ordering; provide a framework for the study of the interaction of lawmaking and practice at the transnational, national, and local levels; and reconfigure the concept of law. The first approach develops theories of private le...
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Contractual Knowledge: One Hundred Years of Legal Experimentation in Global Markets, edited by Grégoire Mallard and Jérôme Sgard, extends the scholarship of law and globalization in two important directions. First, it provides a unique genealogy of global economic governance by explaining the transition from English law to one where global exchange...
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This is the second of two volumes announcing the emergence of the new legal realism. At a time when the legal academy is turning to social science for new approaches, these volumes chart a new course for interdisciplinary research by synthesizing law on the ground, empirical research, and theory. Volume 2 explores the integration of global perspect...
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Some subsidies (such as for fossil fuels and fisheries) adversely affect global public goods (such as a stable climate and the maintenance of global fish stocks); others affect global price levels (domestic support for certain agriculture commodities), or have negative consequences for a trading partner. World Trade Organization (WTO) members have...
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This article explains the impact of India's engagement with the law of the World Trade Organization (WTO) on both the Indian state and on the WTO itself. In each case, it explains the role of Indian lawyers within the larger transnational context. In engaging with globalization and the WTO, India has transformed itself. The Indian state has moved t...
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This rejoinder responds to criticisms by Jan Klabbers and Ino Augsberg of ‘The New Legal Realist Approach to International Law’ ( Leiden Journal of International Law , Volume 28:2, 2015). The New Legal Realism brings together empirical and pragmatic perspectives in order to build theory regarding how law obtains meaning, is practised, and changes o...
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This article presents and assesses a new wave of em- pirical research on international law. Recent scholar- ship has moved away from theoretical debates over whether international law “matters,” and focuses in- stead on exploring the conditions under which inter- national law is created and produces effects. As this empirical research program has m...
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The New Legal Realist approach to international law builds from a jurisprudential tradition that asks how actors use and apply law in order to understand how law obtains meaning, is practised, and changes over time. The article addresses the jurisprudential roots of the New Legal Realism, its core attributes, and six important components in the cur...
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Commentators view the fragmentation of regulatory authority as a challenge to addressing economic issues within countries. As economic externalities and financial crises extend transnationally, the issue of the regulatory alignment of transnational legal orders (TLOs) deepens. There is some literature on the fragmentation of international law and t...
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The concept of transnational legal orders (TLOs), and the framework erected around that concept (Chapter 1), opens up many avenues for empirical research and theoretical development regarding law and legal orders. The empirical chapters in this volume concomitantly constitute a set of case studies across highly variegated areas of law and bring wit...
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This book offers a path-breaking, empirically-grounded theory that reframes the study of law and society. It shifts research from a predominantly national context to one that places transnational, national and local lawmaking and practice within a single, coherent, analytic frame. By presenting and elaborating a new concept, transnational legal ord...
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On May 22, 2014, the World Trade Organization’s Appellate Body (AB) issued its report on the controversial “ ECSeal Products ” dispute, finding that a European Union (EU or Union) prohibition on the importation and sale of seal products violated the General Agreement on Tariffs and Trade 1994 (GATT). It did so, however, in a way that largely upheld...
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Introduction to Symposium on Alan O. Sykes, “Economic ‘Necessity’ in International Law” - Volume 109 - Gregory Shaffer
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The World Trade Organization (WTO) arguably shapes regulatory governance in more countries to a greater extent than any other international organization. This article provides a new framework for assessing the broader transnational regulatory implications of the WTO as part of a transnational legal order (TLO) in terms of four dimensions of regulat...
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This paper examines the growing role of Indian lawyers in the transformation of Indian trade policy through the development of trade-related legal capacity. By trade-related legal capacity we mean, broadly, the ability of a country to use law to engage proactively in the development and defense of international and domestic policy. Such capacity is...
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This paper examines the growing role of Indian lawyers in the transformation of Indian trade policy through the development of trade-related legal capacity. By trade-related legal capacity we mean, broadly, the ability of a country to use law to engage proactively in the development and defense of international and domestic policy. Such capacity is...
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The world faces multiple challenges in producing global public goods, such as climate change mitigation, financial stability, security from nuclear terror, knowledge production, and the eradication of infectious diseases. International law scholarship, in the meantime, takes a turn towards celebrating pluralism without sufficiently accounting for i...
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Countries in virtually every region of the world are criminalizing cartel offenses. Many have initiated prosecutions, several have secured convictions, and a few have imposed jail time. Yet outside the United States the enforcement record is hardly uniform, and the debate about cartel criminalization is far from resolved. This situation raises a ho...
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This article, for a symposium of the Wisconsin Law Review on Professor Neil Komesar’s work on comparative institutional analysis assesses his framework from a new legal realist perspective. Komesar powerfully shows how the pursuit of any substantive goal is mediated through different institutional processes that will affect outcomes, so that instit...
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The case United States — Measures Concerning the Importation and Marketing and Sale of Tuna and Tuna Products concerns whether United States “dolphin-safe” labeling requirements comply with the Agreement on Technical Barriers to Trade (TBT Agreement) of the World Trade Organization (WTO). This paper analyzes the WTO Appellate Body decision and its...
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This paper addresses the implications of the rise of China and other middle-income countries (MICs) for the international trading system. The paper assesses how MICs have engaged with the international trading system over time, what strategies they advance, and what are the implications for going forward, focusing on the negotiation and enforcement...
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This essay critiques Nico Krisch’s Beyond Constitutionalism: The Pluralist Structure of Postnational Law. The book’s primary foil is the turn to rethinking the international legal order in constitutionalist terms. Its contrasting normative vision is a postnational, pluralist one in which there is no legal center or hierarchy. This vision, although...
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Political scientists and legal scholars have increasingly explored the concepts of hard and soft law in international governance. In this paper for a volume on International Law and International Relations, we review and assess this literature, with a focus on the insights generated by interdisciplinary IL/IR scholarship. We first address the key d...
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Informal international lawmaking (IN-LAW) is an important and increasingly common phenomenon of contemporary international life. IN-LAW, however, has not replaced formal lawmaking, but exists alongside it, with multiple, overlapping formal and informal procedures often addressing the same substantive issues in world affairs. Why would states choose...
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This article deals with the gamut of international law. Empirical research on international law, charts three main factors-states and bureaucracies, private actors, and international institutions, specifically international tribunals. International law maintains the centrality of the state, which is also the functioning ground for various sub-state...
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Judicial interpretation implicates a range of interacting social decision-making processes, including domestic, regional, and international political, administrative, judicial, and market processes - referred to collectively as institutions. In the case of the World Trade Organization (WTO), interpretive choices implicate the interaction of institu...
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This paper is for a symposium on the Tenth Anniversary of the Advisory Centre on WTO Law (ACWL). The paper places the ACWL in the broader context of international trade law governance. It notes that although the ACWL is quite different than the WTO Appellate Body in presenting legal arguments as opposed to issuing rulings, it plays an analogous rol...
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This article develops the framework of comparative institutional analysis for assessing the implications of judicial interpretation in the World Trade Organization (WTO). The analytical framework offers an improved means to describe and assess the consequences of choices made in treaty drafting and interpretation in terms of social welfare and part...
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This review essay for the Socio-Economic Review examines Terence Halliday and Bruce Carruthers’ book Bankrupt: Global Lawmaking and Systemic Financial Crisis. The essay notes how the authors build and apply theory along the following dimensions within a single book, addressing (i) the construction of global norm-making; (ii) the intermediating proc...
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This paper for the launching of the journal Transnational Environmental Law first sets forth a concept of transnational environmental law that encompasses but is broader than international environmental law. When we speak of transnational law and legal process, we are concerned with the migration and impact of legal norms, rules and models across b...
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Although the terms transnational law and state transformations are increasingly used, we need clearer conceptual work and more empirical study. This Article sets forth and applies a socio-legal approach to the study of transnational legal processes and their effects within countries. First, the Article clarifies the concepts of transnational law, t...
Article
Countries in virtually every region of the world are criminalizing cartel offenses. Many have initiated prosecutions, several have secured convictions, and a few have imposed jail time. Yet outside the United States the enforcement record is hardly uniform, and the debate about cartel criminalization is far from resolved. This situation raises a ho...
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Full-text available
Terence Halliday and Bruce Carruthers' book Bankrupt: Global Lawmaking and Systemic Financial Crisis is a major work, providing new ways to see and assess the relation of global normmaking and national lawmaking. The authors build and apply theory along the following dimensions within a single book, addressing (a) the construction of global normmak...
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The use and choice of hard and soft law in international governance has been the subject of ever-increasing scholarly interest. This law and social science literature assesses the relative strengths and weaknesses of hard- and soft-law instruments as alternatives for international governance, as well as how these instruments can be combined as mutu...
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This paper is the introduction to the book Dispute Settlement at the WTO: The Developing Country Experience, edited by Gregory Shaffer and Ricardo Meléndez-Ortiz (Cambridge University Press, 2010). The paper examines dispute settlement at the World Trade Organization from a developing country perspective. It builds from nine case studies of countri...
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Brazil is widely touted as one of the most successful users of the dispute settlement system of the World Trade Organization (WTO) among all countries, developing and developed, in terms of both the quantity of cases brought and the cases’ systemic implications. Brazil has been the fourth most frequent complainant in the WTO dispute settlement syst...
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The Dispute Settlement Understanding (DSU) has significantly altered the way in which international trade disputes are processed and resolved. In general terms, the DSU has substituted a more ‘legalised’ system of dispute settlement, with new procedural requirements, over the more ‘political’ system in place under the GATT. In doing so, it has crea...
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In its report "United States- Import Prohibition of Certain Shrimp and Shrimp Products,” the WTO Appellate Body attempts to foster a process whereby diverse interests are accounted for when regulations addressing environmental issues affect trans-border trade. In this way, the Appellate Body decision significantly departed from former GATT jurispru...
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This is the introductory chapter to our book When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford University Press). It provides the argument of the book and introduces the individual chapters. We investigate the obstacles to reconciling regulatory differences among nations through international cooperati...
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In this conclusion to our book Transatlantic Governance in the Global Economy, we address the question “who governs” in transatlantic relations, in both theoretical and empirical terms, on the basis of the evidence presented in the book’s substantive chapters. In Part I, we explain the rise of new forms of transatlantic governance during the 1990s...
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In this introduction to our book Transatlantic Governance in the Global Economy, we examine the record of transatlantic economic relations, at three levels: the intergovernmental level, where chiefs of government and other high level officials negotiate on behalf of the United States’ and European Union’s respective interests, as determined by inte...
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It is sometimes observed that in our complex, technologically-dynamic world, legal institutions attempt to import science into law and export law’s problems to science. This essay assesses the relation of risk, science and law in the World Trade Organization (WTO). It responds to the question what ought a WTO panel to do in light of the texts of th...
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This synopsis is to our article Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? The synopsis and article map and analyze three varieties of a new legal realism. We contend that these varieties of new legal realism provide responses to a “new formalism,” that of neoclassical law and economics. We conclude by outlinin...
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This article examines how the World Trade Organization addressed trade and environment issues through a political process, as opposed to the judicial one, which has been the focus of most WTO legal scholarship. It examines the operation of the WTO Committee on Trade and Environment, treating the Committee as a site to assess central concerns of gov...
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Scholars continue to debate over the aim of WTO remedies in light of the ambiguity of the legal texts. As Joost Pauwelyn writes, the goal of WTO remedies remains “murky and confused.” Some commentators contend that the overarching objective is, and should be, to induce compliance with WTO obligations. Others maintain that the central goal is, and s...
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While scores of commentators have criticized the non-transparency of the World Trade Organization (WTO) in their examination of blue (trade-labor) and green (trade-environment) issues, they have often ignored the linkage between domestic politics in powerful states and international trade measures. They blur this crucial linkage that exacerbates co...
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This article puts business center stage as a means to understand law. Law consists of systems of rules, standards, and procedures that social institutions create and apply. These social institutions may be public or private. The rules, standards, and procedures that they create provide a framework in which business strategizes and operates. Busines...
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Interdisciplinary Perspectives on International Law and International Relations: The State of the Art brings together the most influential contemporary writers in the fields of international law and international relations to take stock of what we know about the making, interpretation and enforcement of international law. The contributions to this...
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This paper for the Oxford Handbook of Empirical Legal Studies (forthcoming 2010) assesses what empirical research shows in response to three questions concerning international law: (i) why international law is produced and invoked; (ii) how international law is produced; and (iii) how and under what conditions international law matters. We assess v...
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This paper introduces a symposium issue on WTO law in a fragmented, decentralized international legal order, resulting from a conference which was held at Loyola University School of Law on February 15, 2008, and was co-sponsored by the American Society of International Law. The introduction introduces the five papers published in the issue by Padi...
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Previous studies of WTO dispute settlement have sought to evaluate whether a Member's legal capacity influences its odds of bringing litigation before the multilateral trade regime. Because direct measures of legal capacity are elusive, these studies have had to use indirect proxies, such as per capita income or number of delegates in Geneva. Yet,...
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Empirical work in international law is rapidly increasing in quantity and sophistication. This trend reflects the expansion in number and importance of international organizations and courts, as well as developments in legal scholarship and the social sciences. This bibliographical essay forms the basis for a forthcoming chapter in the Oxford Handb...
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Much legal scholarship addresses law in terms of norms and incentives that affect business and individual behavior. This Essay reverses the telescope and addresses the mechanisms through which business shapes law. There are two main ways in which business affects law. First, business influences the public institutions (legislatures, administrative...
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This book review of The WTO at 10: The Contribution of the WTO Dispute Settlement System (edited by Georgio Sacerdoti, Alan Yanovich and Jan Bohanes) builds from the volume’s contributions to show how the creation of the Appellate Body, contrary to the expectations of the WTO’s members, has resulted in the judicialization of international trade rel...
Book
The transatlantic dispute over genetically modified organisms (GMOs) has brought into conflict the United States and the European Union, two long-time allies and economically interdependent democracies with a long record of successful cooperation. Yet the dispute - pitting a largely acceptant US against an EU deeply suspicious of GMOs - has develop...

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