In this Article, Professors Dunoff and Trachtman explore the potential utility and limitations of economic analysis of international law. To date, the law and economics revolution has largely bypassed international law. The Article identifies the three reasons why international lawyers have not extensively used economic analysis and explains why none of these reasons is persuasive. Second, the Article provides a reason to believe that economic analysis will enrich our understanding of international law by detailing an analogy between the market of international relations and traditional markets for goods. Subsequent parts explore the applicability of economic analysis to three important international law topics: the allocation of prescriptive jurisdiction, the law of treaties, and the competences of international organizations. In each of these parts, the authors analogize the international legal issue to a domestic legal issue, and then explore whether the economic methodologies that have been used domestically can be used on the international plane. They further identify certain methodologies, such as the new institutional economics and public choice theory, as having much greater promise in international legal analysis than other economic approaches, including price theory (when employed without reference to transaction costs and strategic considerations). Next, the Article outlines some of the conceptual and practical difficulties associated with economic analysis of international law. Finally, the Article outlines a progressive research program in the economic analysis of international law. The Article's larger purpose is to stimulate inquiry into the utility of applying various forms of economic analysis to international legal issues and, in so doing, to enrich international legal discourse and scholarship.
Jeffrey L. Dunoff & Joel P. Trachtman,
Economic Analysis of International Law,
Yale J. Int'l L.
Available at: https://digitalcommons.law.yale.edu/yjil/vol24/iss1/2