Wednesday, February 20, 2008

Dynamic Incorporation of Foreign Law

My latest law review article (yes, I still write those when I'm not blogging or writing FindLaw columns), is called "Dynamic Incorporation of Foreign Law." You can download the full paper by following one of the links at the bottom of the SSRN page here. Meanwhile, here is the abstract:
Lawmaking bodies in one polity sometimes incorporate the law of another polity "dynamically," so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. However, dynamic incorporation delegates lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such sessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation-states agree to delegate lawmaking power to a supra-national entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation-states within the decision-making structures of the supra-national entity can ameliorate but cannot fully compensate for the resulting democracy losses suffered by those nation-states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.
Among other things, the paper distinguishes among "upward" incorporation (e.g., a state income tax code defines income as whatever the federal definition is), "downward" incorporation (e.g., the federal Assimilative Crimes Act incorporates the state criminal law in which federal land is located), and "horizontal" incorporation (e.g., a newly independent country uses the law, including post-separation law, of the mother country, to fill gaps in its own law for some period). I say in the paper that true examples of horizontal incorporation are unusual, even though, from a theoretical standpoint, it raises roughly the same accountability/democracy/sovereignty/delegation issues as upward and downward incorporation. I would be grateful to any readers (of this blog entry but especially of those who slog through the paper) for additional real examples of horizontal dynamic incorporation and/or theories as to why it is less common than upward and downward dynamic incorporation.

Posted by Mike Dorf