This introduction presents the book's framework for the study of the transnational legal ordering of fiduciary law. It notes the key conceptual tools of TLO theory (such as normative settlement and the recursivity of law) and explains how these tools bear upon analytic, normative, and sociolegal inquiries into transnational fiduciary law. The introduction discusses the role of framing problems in fiduciary terms in transnational legal ordering, the potential, but uneven, formation and institutionalization of fiduciary law transnationally, the recursive, transnational development and limits of fiduciary law over time, the conceptual frontiers of transnational fiduciary law, and the contributions of the book's chapters. The conclusion presents the book's principal findings regarding fiduciary law and its relation to theorizing transnational legal ordering.

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This article defines core concepts, analyzes the relation of national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals, given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power also is exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that could explain such decline, and why such factors appear to be transnationally linked. Part IV discusses what might be done given these shifts in rule-of-law protections. We then conclude, noting the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This framework paper defines core concepts, analyzes the relation of national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals, given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power also is exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that could explain such decline, and why such factors appear to be transnationally linked. Part IV discusses what might be done given these shifts in rule-of-law protections. We then conclude, noting the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.

In this keynote address for the 2023 International Law Weekend conference of the American Branch of the International Law Association (ABILA), I first address the dangers of the conference theme “beyond international law” at a time when challenges to international law and institutions increase and aim to constrain international law’s normative force. We have been here before. The world today recalls that of the interwar period, a time of growing economic insecurity and inequality that helped to catalyze the rise of authoritarian movements. During that period, Carl Schmitt was a leading legal theorist who eventually became a member of the Nazi party, but who also influenced the far left, as the right and left found a common enemy in the democratic Weimar Republic. In the United States, the legal realist movement arose with a different response to the economic and social challenges of that period. I foreground three interacting components of legal realism that will be central if we are to think beyond international law in an effective way today: Deweyan pragmatism, empiricism, and experimentalism. I apply them to transnational problems, noting how international law is part of broader transnational legal ordering processes. I show how this approach is critical for responding to transnational challenges, focusing particularly on climate change.

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Karen Alter's rich Foreword develops an important research agenda regarding capitalism, and its impact on what she calls "global economic law." This Afterword builds on Alter's essay to make four points. First, it compares Alter's framework of international regime complexes with the framework of transnational legal orders that has been applied to a wide spectrum of issues. It shows how the latter framework is necessary to supplement Alter's regime framework. Second, it subjects Alter's concluding argument in favor of multilateralism to a comparative institutional perspective, which foregrounds considerations that Alter's essay elides. It notes the contexts in which multilateral international law is, or is not, a preferred approach. Third, it substantially qualifies Alter's concluding prediction regarding continuity with China's rise. It stresses the implications of China's combination of state capitalism and political authoritarianism, coupled with other transnational trends, including within the United States. Fourth, it notes her lack of engagement with the issue of race and international law, which is present in its absence, on which the framework of transnational legal orders sheds greater light.

The studies in this book examine the processes through which transnational criminal justice norms are being formed and institutionalized, migrate across jurisdictions, and shape the practices and attitudes of national and local actors. They assess the driving forces behind the emergence of new mechanisms of transnational legal ordering in diverse areas of criminal justice, analyze their limits and their effects, and evaluate their implications for our understanding of the nature of criminal law as a social and political institution. This introductory chapter sets the analytic framework for these inquiries. Drawing on the book’s case studies, we explore a number of theses for explaining why illicit activities and law enforcement practices become objects of transnational regulation. We consider how competition among and resistance within transnational legal orders shape and constrain their formation, institutionalization, and consequences. Finally, we highlight the book’s contribution to the broader project of developing a socio-legal theory of transnational legal ordering and to scholarly debates regarding the impact of globalization on criminal justice policies.

This article examines the social challenges posed by the data-driven economy, their implications for international trade law, the current trade negotiating context involving distinct models advanced by the United States, European Union, and China, and a way forward that can both enhance trade and regulatory efficacy. It examines seven interrelated risks. They are the rise of 'winner-take-all' companies; social control through public and private surveillance; social polarization; premature deindustrialization; national security threats; cybersecurity risks; and threats to personal privacy. In response to these risks, the article contends that trade agreements should be deferential to national regulation, while supporting mechanisms for regulatory learning and adaptation. In this spirit, the article advances a governance framework that goes beyond 'liberalization' and that foregrounds the importance of building resilience and engaging in regulatory problem solving.

This essay elaborates in three ways the call for a renewal of social science approaches to international law advanced by Adam Chilton, Tom Ginsburg, and Daniel Abebe. First, while we affirm the importance of what they call the “scientific method” of hypothesis testing, we argue that it can and must be complemented by several other well-institutionalized social science approaches to international law. Second, we loosen the conventional “internal”/“external” distinction in legal scholarship and make the case that conceptualization and empirics are integral to both approaches. Third, we propose that the full promise of social science approaches to international law can only be realized when the international is held in dynamic and temporal tension with the national and local. Expanding scholarship on transnational legal orders and ordering brings theory and research on international law (including conventional “internal” approaches) into productive engagement with growing bodies of socio-legal research and scholarship (the so-called “external” view), with mutual benefits for both. The article illustrates the promise of the TLO framework with two illustrations, one from international trade law through the WTO and the other from international commercial law created and promulgated by UNCITRAL.

AbstractThe strained U.S.-China trade relationship poses a frontal challenge to the multilateral trading system and has broad repercussions for international law. This Article addresses three dimensions of this relationship: (1) the economic dimension; (2) the geopolitical/national security dimension; and (3) the normative/social policy dimension. The Article advances a middle ground between those seeking to reinforce the World Trade Organization (WTO) system with new rules that limit the state's role in the economy, and those who reject WTO constraints in favor of a power-based system. It proposes pragmatic reforms to govern the interface of the two states’ respective systems across these three dimensions to facilitate ongoing exchange while giving each country latitude to protect itself from the externalities of the other's policies. The result would be greater room for bilateral and plurilateral bargaining, but conducted within the umbrella of the multilateral system.

Our theoretical framework provides a way to assess empirically how legal norms interact at the transnational, national, and local levels in terms of their construction, conveyance, and practice. For us, the term “transnational” thus does not suggest the disappearance of the state, the withdrawal of the state as a major actor, or processes autonomous of state law, as contended by others. Rather, the term “transnational” has three core attributes. First, it highlights that states (through state officials) are just one among many actors engaged in transnational legal ordering. Second, it points to the ways transnational legal ordering transcends and often transforms states through their participation in transnational legal processes. Third, it underscores that one needs to assess the interaction of state and nonstate actors at different levels of social organization, including international organizations and transnational networks, national institutions, and local practice, to understand transnational legal ordering.

The 2020 U.S. presidential election came at a time of eroding legitimacy and efficacy for international law and institutions. Developments such as populism and nativism, a decline of democratic institutions, and attacks on international organizations have contributed to this erosion. The Trump administration was both a symptom and an accelerator of these trends. The Biden administration now faces significant challenges if it is to engage effectively with the international legal order and address the many problems confronting the United States and the world. This symposium analyses how the Biden administration can and should work toward rebuilding and recalibrating international law and institutions. It focuses on seven critical issues: climate change; global health; trade; election interference; racial justice; human rights; and migration. This introductory essay provides a thematic overview of the challenges posed and the solutions proposed across these policy areas.

The WTO created incentives for Brazil, India, and China to develop trade law capacity. But before turning to how they invested in developing it, we should recognize the major challenges posed to effective participation in international trade negotiations, monitoring, and dispute settlement in the WTO and the broader ecology of the trading system. Only then will we have a better sense of how differences in legal capacity matter in practice. Building trade law capacity is not a simple matter. The demands are significant and are beyond many countries’ hopes, although much progress has been made since the WTO’s creation, including through collective efforts.1 As the scope of trade agreements expanded and as countries negotiated in other fora, creating parallel dispute settlement mechanisms, the challenges grew.

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 developed and operating outside national borders, criminalization research should develop a new theoretical frame for studying how international and domestic practices of criminal lawmaking interact with one another. This article builds from the theory of transnational legal orders and the recursivity of law to propose a transnational processual theoretical framework for the study of criminalization. This framework provides tools for investigating how criminal prohibitions are constituted through recursive interactions between actors operating in international, national, and local sites of legal practice. It draws on empirical studies to show how the processes of constructing, applying, and contesting definitions of international and transnational crimes are embedded in broader structures of power. The article demonstrates how a processual theory of transnational criminalization sheds light on important sociolegal questions about the driving forces and consequences of current efforts to harmonize the definitions of criminal activities across national jurisdictions.

ABSTRACT Since starting its economic reform four decades ago, China has been highly successful in integrating its economy into regional and global value chains (GVCs). This started with simple assembly and processing, then expanded to low-end labor-intensive manufacturing, and gradually moved up to technology-intensive and capital-intensive industries. This article analyzes the development of Chinese law, legal institutions, and international and transnational legal initiatives to support the development of GVCs, which we divide into five phases. The article does not idealize law in terms of ‘commitment’ or ‘rule of law,’ but rather, in the legal realist tradition, views law as an important, contributing factor in economic change. It presents law as a signalling and coordinative device that serves to channel private conduct for business planning and coordination. The article provides insights for understanding current developments in the trading system and their implications for regional and global value chains.

Despite being the largest free trade agreement (FTA) in the world, the Regional Comprehensive Economic Partnership (RCEP) is often criticized as a shallow FTA. In this essay, however, we contend that the RCEP is better understood in the context of the great power rivalry between the United States and China. We argue that the RCEP marks China’s rise as a shaper of trade law norms and governance mechanisms, which intensifies great power competition. On the one hand, by solidifying the world’s largest regional trading bloc, including through enacting very liberal rules of origin, the RCEP tightens ties among Asian economies and counters the efforts of the US to divert supply chains away from China. On the other hand, the inclusion of new rules on issues like e-commerce in the RCEP illustrates the potential for some cooperation between the two countries over the governance of the emerging digital economy, despite considerable challenges. The essay concludes with thoughts on the options for the new US administration in dealing with China.

We live in a pivotal time for international economic law. Emerging powers have ascended in prominence and the United States and Europe declined as economic and trading powers. China has become a rival to the United States. Economists tend to explain the shift from the angle of efficiency and innovation, while political scientists in terms of power, and more precisely market and economic power. This book provides a necessary complement to these analyses by assessing changes in law and legal institutions, and, in particular, these countries’ development of trade law capacity, which is linked to broader policy capacity, to interpret, apply, develop, and shape the rules of the game.