Paul B. Stephan

University of Virginia | UVa · School of Law

Kristina Daugirdas's important new article prompts two kinds of responses. By providing a sophisticated analysis of the role of reputation in influencing the behavior of international actors, it invites further thoughts about what we might think reputation is and does. By taking a moral position—the UN should do more to reduce sexual abuse by UN-sp...

This Article explores the Supreme Court's inconsistent use of prescriptive inferences to justify the creation of federal common law in areas regulated by the law of nations. On the one hand, the court has employed an inference of lawmaking power from an unadorned grant of jurisdiction in the case of admiralty suits and tort claims brought by aliens...

Set in the context of growing interdisciplinarity in legal research, The Political Economy of International Law: A European Perspective provides a much-needed systematic and coherent review of the interactions between political economy and international law. The contributors reflect the need felt by international lawyers to open their traditional...

This chapter represents my contribution to a book provisionally entitled Comparative International Law, scheduled for publication by Oxford University Press in 2017. It describes the emerging field of foreign relations law and discusses critiques of this field as an assault on international law, especially international human rights. It explores th...

In RJR Nabisco v. European Community , the Court added an exclamation point to a long term trend in its jurisprudence. It believes, this trend indicates, that private civil suits pose specific foreign relations issues, at least when the targets are foreign transactions and actors, to which the Court will respond by erecting barriers. To this genera...

This symposium explores the possibilities of “comparative international law”: as a field, a cluster of inquiries using comparative methods, or a set of approaches to aspects of international law. These articles frame this inquiry, examine issues of methodology, discuss the uses and limits of comparative materials in adumbrations of general principl...

Three Pathways to Global Standards broadens our understanding of structures that undergird international cooperation. Stavros Gadinis argues that different kinds of lawmaking networks propagate differently. Private networks depend on market success, in the sense that the demand for their products rests on competition in the private sector. Regulato...

When a government contracts with a private firm to supply a service previously supplied by the government, questions arise as to whether the private firm benefits from immunities that previously applied to government actors. In Richardson v. McKnight, the Supreme Court held that the employees of a private prison operator did not enjoy the immunity...

I want to use the occasion of the Morrison decision to consider the interests that produce extraterritorial regulation by the United States. International lawyers for the most part have analyzed state decisions to exercise prescriptive jurisdiction over extraterritorial transactions in terms of a welfare calculus that determines the likely costs an...

This paper explores the dynamics of international judicial interactions in civil cases. It proposes a positive model of court-on-court encounters based on contract theory. It argues that this model provides a superior account of these interactions compared to the prevailing account. The dialogue model developed by international relations specialist...

This paper, presented to the 25th Sokol Colloquium on Private International Law in April 2012, and slated for publication in a forthcoming book resulting from the Colloquium, discusses the International Court of Justice’s judgment in Jurisdictional Immunities of the State (Germany v. Italy). It locates the decision in the context of an ongoing deba...

This article considers whether the prospect of increased competition in the regulation of international bribery is desirable or not. It explores the factors that can determine whether this competition will augment or diminish global welfare. Its conclusion is optimistic. Based on what we know about the general dynamics of regulatory competition, th...

This article explores the background to, and significance of, the Russian renationalization of the Yukos energy conglomerate through a tax assessment followed by an asset auction, then a bankruptcy proceeding. In a nutshell, the rise and fall of Yukos illuminates four narratives about the modern world economy. First, it exposes the challenges – som...

As a candidate for President, Barack Obama made “change” a central theme of his campaign. In particular, he railed against the Bush Administration’s human rights policy, including its resort to a war of choice that resulted in many civilian casualties, its detention of suspected terrorists at Guantánamo, its use of military tribunals instead of civ...

This paper, prepared for a conference hosted by Vanderbilt Law School on foreign sovereign immunity at home and abroad, begins with the dispute now before the International Court of Justice, Jurisdictional Immunities of the States (Germany v. Italy). Italy’s courts claim that the normal rule of foreign sovereign immunity that it would apply to a ci...

The old understanding of international law as something created solely by and for sovereigns is defunct. Today the production and enforcement of international law increasingly depends on private actors, not traditional political authorities. As with other public services that we used to take for granted – schools, prisons, energy utilities and tran...

This paper, a chapter in a forthcoming book on International Law and the Supreme Court, examines the treaty decisions of the Court during the postwar era, up until the second Bush Administration. Three patterns stand in the many (roughly 130) decisions. First, the Court acted as if the immediately preceding period – the New Deal, then the War – cre...

Professor Ralf Michaels's analysis of Empagran is trenchant, apt, and persuasive. I do not wish to criticize it so much as suggest a different perspective that ties the decision to other historical patterns and contemporary trends. Professor Michaels sees the decision as primarily a one-off and jarring event. The Court does not normally stand up fo...

This paper responds to a provocative essay by Curtis Bradley and Mitu Gulati on exiting from customary international law. Bradley and Gulati argue that until the mid-twentieth century, unilateral exit from customary international law was widely accepted in at least some circumstances, and that such exit is normatively desirable. I attempt to illumi...

This essay, a chapter in a book on international investment law and comparative public law forthcoming from Oxford University Press, reviews the applicability of international investment law to tax administration and enforcement. It begins with a review of the principles of international investment law that are relevant to the assessment and enforc...

This article has a simple hypothesis: Selectivity in international law increases as international relations become more symmetrical. Conversely, international law becomes more universal as asymmetry grows. This relation holds true during the modern period. Its existence in turn supports the theoretical claim that the content of international law re...

The Supreme Court's decision in Medellin v. Texas has attracted great attention and much criticism from international law specialists. It is unclear, however, how much the opinion constrains future judicial decisions. This article addresses two issues that the Court did not resolve. It argues that, as a general manner, the claim that U.S. courts sh...

In Swift v. Tyson, Justice Story argued that federalization of the law of negotiable instruments was necessary to thwart local courts from adopting rules that favored local interests at the expense of national welfare. Variations of this argument have been embraced by modern proponents of federalizing many aspects of international law, including cu...

The case for international cooperation in competition policy is weaker than commonly thought. First, the lion's share of international transactions (the only kind for which international cooperation is relevant) involves industries for which there is no clear consensus about optimal industry structure. Second, there are strong theoretical reasons w...

Sovereigns incur debts, and creditors look to the law to hold sovereigns to their obligations. In legal terms, the question is whether to recognize and define an odious debt defense through a treaty or national legislative acts, on the one hand, or through the decisions of authoritative dispute-settlement bodies, whether international arbitral orga...

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recogni...

Much of international law, like much of contract, is enforced not by independent sanctions but rather through cooperative interaction among the parties, with repeat dealings, reputation, and a preference for reciprocity doing most of the enforcement work. Originally published in 2006, The Limits of Leviathan identifies areas in international law wh...

Based on governance-related criteria, this article provides the empirical jurimetric verification of the how, where, when and why alternative dispute resolution (ADR) mechanisms provide efficiency enhancing channels to redress grievances in less developed countries. Based on data collected in 16 developing jurisdictions through a representative sam...

International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. Framers of international agreements, no less than the authors of private contracts, can choose between self enforcement and coercive third-party mechanisms to induce compliance with the commitments they make. Studies of individual...

This article contributes to the "arrival of history" in constitutional scholarship and the revival of foreign affairs jurisprudence in the legal academy. I contend that the so-called "modern" position on the status of international law as federal law - today's received wisdom - changed substantially between the time of its first authoritative artic...

I contend that the so-called "modern" position on the status of international law as federal law - the claim that customary international law constitutes federal common law and informs the scope of constitutional protections of individual rights - changed substantially between the time of its first authoritative articulation and its enshrinement in...

This paper draws on strategic trade theory to explore the conditions under which different national competition law systems can compete. I assume that each state seeks to maximize a weighted sum of producer and consumer welfare within its territory, the weighting in turn reflecting public choice considerations. I further assume the tolerance or pro...

I discuss the roles of adjudication bodies in promoting the unification of law. Then I clarify the redistributive dimensions of unification projects. Working within the familiar framework of game theory as applied to international relations, I distinguish between the coordination and defection problems that underlie most international interactions....

I address two parallel and paradoxical trends involving U.S. litigation and international law. I describe how U.S. courts have sought to widen their influence over the provision of succor to foreign victims of cruelty and injustice. I argue that a desire to increase the capacity of U.S. judges to instruct the world explains, at least in part, these...

The Skeptic Speaks: I Am Not a Bund, Pig-Stupid Opponent of Unification - Volume 96 - Paul B. Stephan

This paper examines the interplay between intellectual property rules and forces driving globalization in the world economy. It argues against the view that multilateral enforcement of standardized intellectual property rules offers the greatest promise for further development. I argue that standardization obtained through international institution...

This paper will be published in the Georgetown Law Journal as one of two responses to an essay by Andrew Guzman on the law and economics of choice of law. Guzman offers a welfare analysis that advances the analysis of allocation of regulatory jurisdiction. He criticism of traditional modes of expounding choice of law doctrine is, if anything, insuf...

In this paper, forthcoming in the Virginia Law Review, I explore the role of litigation as a policy-making and rule-generating process in the context of a democratic republic. In democracies, legislatures redistribute wealth, rights, and privileges; debate rages over the direction of this redistribution and its desirability, but not about its exist...

I compare two competing accounts of the U.S. role in the global economy. In one version, the United States has built an international system that replicates its ideology, culture and values. This is a unipolar world where the actors have taken off the table fundamental choices about political and economic structure, and a broad range of policy choi...

Over the last two decades international law has gone from something that, in the eyes of many outside the discipline, seemed a contradiction in terms, to a source of genuine and direct conflict with domestic legal institutions. This change has three sources: the internationalization of everyday life in the United States; the emergence of internatio...

This chapter reviews the economic literature on inheritance and gift taxation. It discusses, among other things, the arguments for subsidizing transfers, the advantages of and problems with accessions taxation, the relationship of transfer taxes to income tax, proposals for unification of tax rates, proposals for base integration, special rules for...

This paper uses the new literature on norms and rationality to explore why societies develop widespread corruption as a means of organizing economic activity. Paying particular attention to the post-socialist world, it explores the evolution of these norms as part of a more general development of flexible responses to rigid assignments of property...

This paper traces the connections between the principal developments in Soviet law between 1945 and 1991 and the ongoing struggle with the West, in particular with the United States. It argues that domestic concerns played a larger role than did superpower competition in shaping the legal policies that emerged during this period. It questions the i...

This paper challenges the conventional wisdom that unification and harmonization of international commercial law is desirable and should be pursued. Drawing from the literature on private legislatures, it argues that the expert groups that produce international conventions and model laws are likely to produce either vague norms that impose no signi...

This article argues that proponents of international regulatory cooperation need to confront the welfare losses that might occur due to missed opportunities for cooperative regulatory competition. Cooperative regulatory competition takes places when jurisdictions agree to honor formal and manipulable choice-of-law rules, such as contractual choice,...

Many accounts of privatization in democratic, market-oriented countries stress the role played by mechanisms of political accountability. These processes, the story goes, induce political decisionmakers intermittently to take public-regarding steps, and in many cases the transfer of property and functions from the state to the private sector benefi...

The trial law practice the Moscow bar and the legal consultation bureau Borzov's pretrial consultation the trial continues perestroika and the Moscow Bar the trial ends lawyers, crime, and punishment in Gorbachev's USSR appeal, retrial and resolution of the Borzov case.

The current Soviet leadership wishes to transform the world's largest centrally managed economy. It hopes through the perestroyka (reconstruction) campaign to diminish the economic bureaucracy, to create markets for production inputs and consumer goods and services, and to expand the role of primary production units, including private firms. Becaus...

Spring 2009 Presenters: January 23: Eleana A. Baylis (University of Pittsburgh School of Law), Bellwether Trials January 30: Carlos M. Vázquez (Georgetown University Law Center), ’Not a Happy Precedent’: The Story of Ex Parte Quirin February 6: Thomas H. Lee (Fordham Law School), The International Laws of War and the American Civil War February 20...