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77 Chi.-Kent L. Rev. 1303 (2001-2002)
Treaty Law and Legal Transition Costs

handle is hein.journals/chknt77 and id is 1319 raw text is: TREATY LAW AND LEGAL TRANSITION COSTS MICHAEL P. VAN ALSTINE* INTRODUCTION The dominant currency in contemporary debates over legal re- form is benefit. That is, and almost by definition, changes in the law most often are proposed and adopted based on perceptions of their net substantive benefit. They promise, for instance, to remedy an in- equity or correct some other recognized defect in the existing legal order, modernize the law to reflect new social or technological reali- ties, remove inefficiencies that frustrate desirable forms of human in- teraction, or (relatedly) harmonize inconsistent rules across juris- dictions. This traditional focus on substantive benefits and costs-al- though of course important on its own plane-overlooks the transitional friction associated with legal change itself. As I argued in a recent article,1 a legal system can experience substantial friction simply in accommodating the existence of new legal norms. Broadly, these legal transition costs arise from the need to learn about the content of new legal norms and the uncertainty and error costs that flow from the loss of the accrued experience with the old legal regime as well as from contending with doubts about the new one. Signifi- cantly, these costs of accommodating new legal norms will arise- although in differing degrees in different contexts- irrespective of the substantive policy goals the new norms pursue and of the particular regulatory vehicle by which they come into being-whether by statute, administrative regulation, treaty, or otherwise. The phenomenon of legal transition costs thus applies to the adoption of new international legal norms as well. Indeed, there is reason to believe that the internationalization of the law poses special problems, in particular with regard to new multilateral treaty law * Professor of Law, University of Maryland School of Law. J.D. 1986, George Washington University; Mag. Jur. Comp. 1993, Dr. Juris. 1994, The University of Bonn, Germany. 1. Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV. 789 (2002).

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