positivism associated with economic analysis easily lends itself to treaty or institutional responses to international issues involving cooperation and/or conflict positivism associated with economic analysis tends to highlight--rather ignore- the treaties institutions and other international legal phenomena that are most interesting to international lega scholars. 24 In short, the most common reasons advanced for not exploring whether L&e might enrich our understanding of international law are not persuasive. The l&e methodologies most likely to be useful are not terribly exotic and, in fact, have a structure and focus that should be familiar to opposed to the state or for economic values as opposed to other values. To the contrary, theseas international lawyers. In addition, these methodologies do not have a bias in favor of the market ethodologies take as central and contingent the question whether market or non-ma mechanisms are appropriate in any particular instance. Finally, these methodologies do not deny a role for, or the reality of, international law. Instead, they direct us towards the very phenomena that are already at the center of the international legal agenda. 25 AK Of course, demonstrating that arguments against the use of l&E analysis lack force is not, any reason to believe that L&e analysis will be useful to international lawyers. It is to this task we now turn The Structural Analogy: The Supra-Market of International Relations and Gains From Before engaging in the economic analysis of international legal problems, it is useful to explore whether international legal problems have some characteristics in common with those already addressed by law and economics. While it is not necessary for our purposes that the analogy be perfect, relevant similarities facilitate the transfer of tools from the domestic sphere to the international. Hence, we outline here the argument that transactions in international relations are analogous to transactions in private markets. In subsequent sections, we outline arguments for more specific analogies between particular international legal problems and particular domestic 24 Many lawyers may also object to another attribute of law and economics positivism: its insistence on the distinction between things as they are and things as they ought to be, between"is and"ought. While there is a general epistemological critique of this form of positivism, see, e.g TRIGG, supra note 20(explaining widespread rejection of positivism in many social science and philosophical traditions), lawyers have advanced arguments grounded in the claim that law ecessarily entails a normative dimension. As these debates have been thoroughly explored elsewhere, we do not revisit them here. See, e.g., Avery Weiner Katz, Positivism and the Separation of Law and Economics, 94 MICH. L. REV. 2229(1996); Anthony J Sebok Misunderstanding Positivism, 93 MICH. L REV. 2054(1995): Herbert Hovenkamp, Positivism in Law and EconomicS, 78 CAL L REV. 815(1990) 25 We do not intend these arguments as a defense of economic theory and methodology generally, including the utility of abstract modelling, the assumption of rationality and the use of the efficiency criterion. For more on these issues, see generally Milton Friedman, The Methodology of Positive Economics, in ESSAYS IN POSITIVE ECONOMICS 3(1953)positivism associated with economic analysis easily lends itself to treaty-based or institutional responses to international issues involving cooperation and/or conflict. For this reason, the positivism associated with economic analysis tends to highlight -- rather than ignore -- the treaties, institutions and other international legal phenomena that are most interesting to international legal scholars.24 In short, the most common reasons advanced for not exploring whether L&E might enrich our understanding of international law are not persuasive. The L&E methodologies most likely to be useful are not terribly exotic and, in fact, have a structure and focus that should be familiar to international lawyers. In addition, these methodologies do not have a bias in favor of the market as opposed to the state, or for economic values as opposed to other values. To the contrary, these methodologies take as central and contingent the question whether market or non-market mechanisms are appropriate in any particular instance. Finally, these methodologies do not deny a role for, or the reality of, international law. Instead, they direct us towards the very phenomena that are already at the center of the international legal agenda.25 Of course, demonstrating that arguments against the use of L&E analysis lack force is not, in itself, any reason to believe that L&E analysis will be useful to international lawyers. It is to this task we now turn. II. The Structural Analogy: The Supra-Market of International Relations and Gains From Trade Before engaging in the economic analysis of international legal problems, it is useful to explore whether international legal problems have some characteristics in common with those already addressed by law and economics. While it is not necessary for our purposes that the analogy be perfect, relevant similarities facilitate the transfer of tools from the domestic sphere to the international. Hence, we outline here the argument that transactions in international relations are analogous to transactions in private markets. In subsequent sections, we outline arguments for more specific analogies between particular international legal problems and particular domestic 24 Many lawyers may also object to another attribute of law and economics’ positivism: its insistence on the distinction between things as they are and things as they ought to be, between “is” and “ought.” While there is a general epistemological critique of this form of positivism, see, e.g., TRIGG, supra note 20 (explaining widespread rejection of positivism in many social science and philosophical traditions), lawyers have advanced arguments grounded in the claim that law necessarily entails a normative dimension. As these debates have been thoroughly explored elsewhere, we do not revisit them here. See, e.g., Avery Weiner Katz, Positivism and the Separation of Law and Economics, 94 MICH. L. REV. 2229 (1996); Anthony J. Sebok, Misunderstanding Positivism, 93 MICH. L. REV. 2054 (1995); Herbert Hovenkamp, Positivism in Law and Economics, 78 CAL. L. REV. 815 (1990). 25 We do not intend these arguments as a defense of economic theory and methodology generally, including the utility of abstract modelling, the assumption of rationality and the use of the efficiency criterion. For more on these issues, see generally Milton Friedman, The Methodology of Positive Economics, in ESSAYS IN POSITIVE ECONOMICS 3 (1953). 9