Legislative borrowing.

Author:Linos, Katerina
Position:NEW VOICES II: BRINGING INTERNATIONAL LAW HOME: CLARIFYING THE COMPLEX RELATIONSHIP BETWEEN INTERNATIONAL NORMS AND DOMESTIC CHANGE
 
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Judges, politicians, and academics vigorously debate whether courts should borrow ideas from abroad. (1) In the United States, the debate centers on the concern that referencing foreign law allows judges to impose the views of a minority of liberal elites on the majority of ordinary Americans. (2) However, foreign law typically enters the United States not through the judiciary, but through the elected branches. (3) My research project explores the overlooked process of legislative borrowing, and shows that foreign law often enters the United States because of, not despite, citizens' wishes. (4)

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

I argue that references to foreign laws are plentiful in the legislative record because foreign models resonate with ordinary Americans, not in spite of this. My theory is built on the intuition that foreign models can serve as benchmarks against which voters...

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