Historic Moments

Conventional political science exams questions like regime change and legislative change primarily as domestic events with domestic causes. But, this model doesn't do a good job of capturing what is going on in either process.

Historic Moments

One of the defining features of regime change, and of most notable (and many not so notable) legislative policy changes, is that neither happens in a vacuum. While political science likes to neatly divide itself into foreign affairs and domestic politics, the reality is that domestic politics is generally strongly influenced by regional context. These kinds of changes happen in waves at historic moments.

Moments of Regime Change and International Domestic Policy Change

We did not see an isolated dictator case of a dictator being replaced in Tunisia. We saw one man's suicide in Tunisia over bureaucratic hassles in a dictatorship that denied him a livelihood set of a public uprising region wide that has produced a change of regime in Tunisia after decades of dictatorship, a change of cabinet in Egypt accompanied by a promise of the existing dictator to depart in the fall and a promise that his son will not seek to replace him, a promise in Yemen to hold elections soon in which the current leaders will not seek re-election, the sacking of Jordan's cabinet, a promise of prompt local elections in the Palestinian Authority, and the possibility of further tumult in Syria and Sudan.

We did not see an isolated change in government in the Soviet Union. We the non-Russian Republics in the Soviet Union granted independence, the dismantling of Yugoslavia, and the abandonment of a Soviet Communist political and economic system to a greater or lesser degree by every Warsaw Pact country, and every successor nation of the Soviet Union and Yugoslavia.

The Colonial powers of Europe did not one by one decide to grant independence to their colonies. They did so en masse in the years around 1960, granting independence to dozens of newly independent nations all at once.

In Post-War Western Europe, each nation did not decide in a vacuum what kind of regime they would create. Essentially every regime that had been interrupted by World War II in Western Europe created a multi-party parliamentary system, reinstated a civil law judicial system, renounced the death penalty, developed political parties dominated by a Social Democratic party on the left and a Christian Democratic party on the right, and put in place a comprehensive social welfare system supported by fairly high taxes with payroll taxes and value added taxes constituting a fairly large share of the total tax burden.

In World War I, a single assassination in Serbia sparked a bloody world war. The Russian revolution in its wake rapidly spread Soviet Communist to the whole of Eastern Europe.

The process by which Latin American nations secured their independence and put in place republics was so similar from nation to nation and involved a wave of change so clearly linked in time that one studies of the "Latin American Wars For Independence" when one studies the region historically, rather than trying to understand any one of them independently.

Italy and Germany came into being as democratic states, and democracy took hold for good in France in the 1870s.

Democratic revolutions hit almost every monarchy in Europe in 1848.

Moments of Subnational Political Innovation

State constitutions change in much the same way. One year, no state has a prohibition on dueling in its state constitution. Half a decade later, they are widespread. One year, no state has merit appointment of judges. A decade later, the Missouri plan for merit based judicial appointments subject to retention elections is widespread. One year, no state grants women the right to vote. A decade later, women's suffrage is the norm.

* Legislative Innovation

You see the same thing in legislation in state legislatures in the United States, even on matters where federal government policy doesn't apply. California passed no fault divorce and it swept the nation in a few years. Pre-trial release programs that allowed recognizance release of carefully screened defendants awaiting trial went from an experiment to the national norm in less than a decade. Dozens of states passed smoker's rights bills in a few years. The original Uniform Commercial Code was adopted by a large share of all states in a short time period and that area of law has continued to be guided by Uniform Law Commissioners ever since, as have the areas of partnership law and a number of other "uncontroversial" areas of private law. All but a handful of states adopted court rules based on the federal rules of civil procedure in short order, and likewise codified state ethics rules for lawyers based on a bar association model in one big sweep. Most states adopted laws providing for condominiums in about half a decade. Gay marriage and civil union laws have rapidly swept the nation, when less than a decade ago there wasn't even one. States put in place public school systems and structured the financing of state institutions of higher education all at about the same times in about the same ways, and followed suit by consolidating public school systems at the same time decades later. The deinstitutionalization of the mentally ill was done at the state level but happened mostly within the span of a few years without any national guidance. The replacement of orphanages with foster care happened in a similarly sweeping movement in a short period of time.

Worker's compensation laws, minimum wage and hour laws, child labor laws, local "dry laws," married women with property acts, heart balm acts, and laws regulating union-management relations swept state legislatures in very similar forms in the Progressive era. Local zoning laws that were very similar in structure and content were enacted in almost every major (and minor) city in the nation in a small number of years.

A contagion model of innovation dispersal better explains most legislative policy change and regime changes than a conventional account of purely domestic struggles between political factions in individual states or even in individual countries in a region.

* Judicial Innovation

Courts are every bit as prone to waves of innovation as legislatures and indeed, are sensitive to both legislative and judicial trends. A court decision in one state that there is a constitutional right to gay marriage or civil unions produces legislative action in another, and visa versa. The shift to court rules based on the federal rules of civil procedure was adopted legislatively in some places, and by judicial rule in others.

These waves are not confined to areas of the law where there is an arguable common federal constitutional basis for the requirement, and this is justified by the doctrine of persuasive common law authority. Thus, for example, strict product liability in tort, once adopted in California by the California Supreme Court, rapidly became the law of the land in almost every state. A cause of action for unjust enrichment, which was an obscure, mostly European legal concept until the critical moment, rapidly became a standard part of every commercial lawyer's arsenal of causes of action.

Moments Of Economic Change

Economists tend to be more conscious of this than political scientists, although the economists who recognize that economic change is follows a path dependent, evolutionary contagion model of change than acting like a thermodynamic system that is perturbed around an immutable natural equilibrium are still in the minority.

An innovation like franchising or "big box stores" comes along, and, in a decade of two, they are the dominant means by which retail sales are conducted. An innovation like subprime mortgage financing goes from being a trivial part of the mortgage finance industry to an immensely rapidly growing significant part of the whole over a decade and the vanishes almost entirely from the economic landscape in a year or two. A deregulated telephone industry engages in an intense marketing effort for long distance plans and phone service features like caller ID for less than a decade then suddenly starts almost giving long distance services and phone features away and launches into a competition to cell broadband access and mobile phone packages.

Economic collapses tend to spread even more rapidly than the spread of new economic models. The steel industry in the United States went under in the blink of an eye. The textile industry collapsed almost as fast. Airline bankruptcies have happened in waves. Travel agencies were culled in a couple of fell sweeps. Free standing investment banks organized as such disappeared from the economy in a matter of months, despite the fact that many of these firms had been around for more than a century. It took about sixteen years for the housing bubble that led to the financial crisis to reach its peak and only about three years for housing prices to collapse, with most of that devaluation happening in the first year.

There have been gradual, long term shifts in the economy, like the slow decline of the private sector labor union over about four decades, or the shrinking share of agriculture as a percentage of the labor force. But, if anything, these incremental charges are the exception, rather than the norm, and even these gradual changes conceal more dramatic shifts in particular industries and subindustries, and in particular regions.

Outlines of the Contagion Model Of Legal Innovation

What does a contagion model of political, economic and social change look like?

Political, Economic and Social Change Generally Happens In Sweeping Moments

Most of history, by which I mean political, economic and social change, happens not in gradual, uncoupled rational change by individual governments or businesses, but in sweeping historic moments that change the whole landscape in a flash like a disease outbreak, in a way that is path dependent and evolutionary in character.

Waves Of Legal Innovation Are Not Driven Primarily By Formal Legal Mandates

This happens even if there are no political or legal institutions with any formal authority to compel this to happen, and even if the changes adopted in one place have little spill over effects. The United States Constitution was very carefully drafted to make it possible for different states to have different suffrage rules without changing the federal balance of power. Yet, women's suffrage spread rapidly none the less and was the law in almost every state by the time that the 19th Amendment made it mandatory in federal elections, and while the U.S. Constitution does not expressly guarantee women the right to vote in state elections, few people doubt that the 14th Amendment equal protection clause (which clearly did not compel women's suffrage in practice at the time that it was adopted) would be held to compel states to give women the right to vote today.

It is the power of the idea that seems like a good one in its context, once it is cast in the spotlight communicated to the right outsiders, and not outside compulsion, that drives waves of innovation.

Sometimes there are coordinating forces. Federal legislation, or international treaties, or U.S. Supreme Court rulings may force state or national governments to follow a larger trend. But, as often as not, these compulsions are addressed to recalcitrant holdouts from trends that have already taken hold as they are influential in bringing about the bulk of the trend. By the time that Jim Crow laws were dismantled in the U.S. Civil Rights movement, apartheid laws had vanished from most of the world already -- and South Africa was for decades, the only country in the world that had to be compelled by international pressure to dismantle its apartheid system until it eventually submitted. Federal laws governing union-management relations were enacted only after they had become widespread at the state level. The European human rights treaty that banned the death penalty in member nations was adopted only after almost every nation in Europe had already done so.

Waves Of Change Have A Trigger

A wave of political, legal or cultural change generally has a clear identifiable trigger that starts it, focusing the attention of people with the power to act upon it on an idea or possiblity or reality.

The current uprisings in the Arab world were triggered by the Jasmine Revolution which in turn was triggered by the self-immolation of a particular young man in Tunisia. The fall of the Soviet system began when Mikhail Gorbachev started to implement Perestroika in late 1988.

The "no fault" divorce wave of legal innovation was triggered by California's enactment of its "no fault" divorce law. Women's suffrage didn't take off until Wyoming, which had adopted women's suffrage as a territory in 1869, became a state in 1890 (and was followed by Colorado in 1893 and many other states soon afterwards).

The Great Recession was triggered by a short sequence of economic events in the fall of 2007. The Great Deprssion was triggered by the stock market crash of 1929.

A First Innovator Is Often Not The Trigger For A Wave Of Change

Clearly, it does not mean that the first place to innovate will set off a wave of change. Indeed, much of the time, the first innovator or two will stand alone for decades or more before the wave of change takes hold. California clearly set off the "no fault" divorce legislative wave, but other states had no fault divorce for decades before it adopted it. India was granted independence from colonial rule more than a decade before decolonialization became the norm and a decade and a half before it reached its 1960 peak. Wyoming had had an obscure limited liability company law on the books for many years before changing tax regulations caused this kind of company to become one of the primary means of organization for closely held businesses in the United States. The United States, France, Switzerland and Iceland were the only nations to have had republican forms of government for almost a century before democracy became the norm in Europe.

Indeed, a well proven test case may be important in making widespread adoption of an innovation happen more smoothly when a wave of change takes hold. Tunisia's Jasmine Revolution would not have spread had demonstrators there been swiftly gunned down and failed to secure any change. The revolutions of 1848 in Europe would probably not have begun had France and the United States not established that Republican government might be a viable possibility decades earlier.

Waves Of Change Can Only Be Triggered When the Time Is Right

Most of the time, the status quo prevails. Yesterday's dicatorship will almost always be tomorrow's dicatorship. Yesterday's fault based divorce law will remain on the books until the moment comes when no fault divorce sweeps the nation. Last year's housing prices will be a good predictor of this year's housing prices.

An single young man's suicide would not have triggered the Jasmine Revolution in 1985, when the latest dictator had been in office for only a few years, and the Soviet Union appeared to provide evidence that one party states could be powerful and economically successful. No fault divorce wasn't ripe to sweep the legislative landscape until lawyers and members of the same social class as legislators had become familiar with just how ugly and hypocritical the increasingly common incidence of fault based divorce had become, and would not have happened without the ferment caused by the sexual revolution at a cultural level. Limited liability companies weren't very attractive until they received a desirable tax treatment. The Financial Crisis that gave rise to the Great Recession wasn't possible until a housing price bubble had reached an unsustainable level, and the entire financial industsry was exposed to more housing default risk than it could easily bear.

Waves of Change Follow Long Periods of Inaction.

Awareness of the problem that will be addressed by the spread of innovation doesn't have to be front and center in the public discussion. Indeed, it may be that a wave of innovation is possible only in circumstances when a problem or imbalance is widely known to exist by everyone involved but is considered an off limits issue or an issue of secondary importance that is not publicly acknowledge by all but a fairly small group of activists.

When a problem is the subject to active public discussion as an important public issue that receives wide attention and is not "off the table," the status quo is less likely to fall so far out of balance that a new wave of innovation, other than any wave of innovation that is already being ridden and worked through at that very moment, can be triggered.

A seven year old regime isn't going to trigger an uprising unless it is very bad. A regional political climate in which most of the region has been governed by local strongmen for three decades of more will.

Political innovations like term limits may be important in securing political stability because they prevent incumbency from allowing the political leadership to grow stale and prevent incumbency from being used with full force to suppress other political views (perhaps even intraparty, rather than partisan opposition, views).

Waves Of Legal Change Are Often Incomplete

A wave of innovation also often does not completely run its course. While the vast majority of the world's colonies secured independence by the 1970s, a handful remained colonies into the last decade of the 20th century and a few colonies remain today. The United States was a hold out against international norms on slavery and apartheid and remains a hold out among developed nations on the question of the death penalty, which is uses more widely than any other developed nation. Cuba held onto a Soviet style communist regime despite the fact that all such regimes in Europe were replaced. Spain had a dictator long after the other nations of Western Europe had genuine multi-party democracies.

This is true at the subnational political level as well. Almost every major city in the United States adopted a zoning code, but Houston was a hold out. The move to replace the grand jury with a preliminary hearing as the main way of determining if probable cause existed to bring criminal charges swept the Western United States, but did not upset the constitutional entrenched rules of almost any of the Eastern states. New York State and California resisted the national trend to adopt state civil procedure rules modeled on the Federal Rules of Civil Procedure. Nebraska uses a unicameral legislature notwithstanding the fact that every other state in the country has a bicameral one. Lousiana and Oregon permit non-unanimous jury verdicts in felony trials contrary to the rule of every other state.

Waves Of Legal Change Do Not Require Genuinely Superior Proposals

The hold outs from waves of innovation tend to disprove the theory that waves of innovation happen because the change that has swept across many jurisdictions actually has overwhelming superiority on the merits.

The differences in the criminal justice process between Oregon, which permits non-unanimous felony jury verdicts and Washington, which does not, is subtle. New York State's refusal to adopt civil procedure rules modeled on the Federal Rules of Civil Procedure has not caused an exodus of business litigation from the state, despite the ability of businesses to agree to other forums. New York State's failure to adopt no fault divorce laws until a year ago did not prevent people from moving there or attract people to the state. Houston's land use patterns are not much different from those of other large Texas cities that have zoning codes (it has more multi-family housing in single family neighborhoods and a few more neighborhood convenience stores, but otherwise isn't much different). North Carolina has suffered few obvious ill effects from continuing to permit alienation of affection lawsuits that have been banned in almost every other state. Cuba's communist economic and political policies have not made it the poorest or more oppressed nation of Latin America. The places that remained colonies long after most of the world had decolonized, like Hong Kong and the British Virgin Islands, are not obviously any worse off than those countries that gained their independence, indeed, on the whole, they are better off than their peers that gains independence sooner.

It is enough that a proposed legal change is widely believed to be superior. Indeed, even proposed legal changes that empirically proved after the fact to be clearly dysfunctional, like the adoption of Western style democratic systems and legal regimes in newly independent nations that were former European colonies, which led to long periods of one party states, dictatorships, or military regimes in short order in almost every place they were attempted the first time (and often the second and third time) that they were attempted, did not prevent legal changes from being rapidly adopted on a widespread basis.

Wave Of Legal Change Have "Natural Boundaries"

Legal and political innovations (and no doubt economic and cultural ones, as well) do not automatically sweep the entire world. They have an impact only on jurisdictions where changes elsewhere are viewed as relevant.

The impact of the Jasmine Revolution in Tunisia has spread to almost every other Arab state in region with a generally similar history. But, it shows no signs of extending to dictatorships in former Soviet Central Asia, and doesn't even seem to be spreading to dictatorships in Sub-Saharan Africa or Southeast Asia.

Chinese style communism had enough of a distinct identity of its own that it did not collapse when Soviet Style communism did.

Political innovations in Europe in the 19th century had little impact on most of Asia and Africa that were seen as different in kind than European nation-states, but did have an impact on North American and Latin American colonial states whose significantly European populations did see their situations as more parallel to those of Europe.

Western European nations in the post-World War II era have generally seen political and legal innovations in other Western European nations as relevant to them, but have generally been oblivious to political innovations in Eastern Europe, the Third World or the United States. Latin America, Canada, Australia and New Zealand have paid more heed to innovations in Europe than in the rest of the world, with Latin America being particularly strongly influenced by Iberian political and legal development, and Canada, Australia and New Zealand being particularly strongly influenced by English political and legal innovation.

The United States, by and large, has borrowed relatively little from the rest of the world politically, legally or culturally considering the amount of information available to it from the rest of the world. For example, even innovations adopted everywhere else in the world, like the metric system, have only made modest inroads in the United States. Indeed, the general disregard that American policy makers have had for the rest of the world, and their tendency to focus heavily on federal rather than state and local politics for reasons explained by the national level of organization of academic scholarship, may explain the relatively insensitivity of American legal scholars and political scientists to the profound role of waves of legal and political innovation that is so obvious elsewhere.

Lousiana has resisted many legal innovations that are widespread in the rest of the United States because it sees itself as a civil law jurisdiction unlike the other 49 states in the Union, although this sense of exceptionality appears to be waning. Utah, similarly, is a place where political and legal innovations may arise despite not being found elsewhere, and may not spread very readily when Utah alone innovates, as its identity as a predominantly Mormon state limits the tendency of other states to follow its lead.

Political innovations like the realignment of Christian conservatives from the Democratic to Republican party have been profound in the Southern states where there was previously a dominant party system in which the Democratic party controlled everything and was the only viable political party, but have played out very differently in places that had a viable two party system before the Republicans adopted the Southern strategy.

To the extent to which jurisdictions are within the same "natural boundaries" and receive information from each other, they will strongly tend to follow the same course of political and legal innovation. But, places outside those natural boundaries will tend to follow courses of political and legal evolution independent of those within those boundaries.

"Natural boundaries" of Legal Innovation Aren't the Same In Both Directions.

The strength of the natural boundaries aren't necessarily the same in each direction and flow from historical ties and relatively scale. Japan, for example, to a much greater extent than any other nation in Asia, due to the lingering impacts of U.S. involvement in the post-World War II reconstruction of the nation, is influenced by the U.S. much more than other nations of Asia that tend to receive the U.S. influences that do impact them second hand through Japan.

For example, after U.S. occupation, the Japanese began to celebrate Valentine's Day, although in a different way than in the United States. In Japan, women express their romantic feelings for men on February 14 (generally with gifts of chocolate), but men reciprocate towards women romantically not on Valentine's Day but on "White Day" on March 14, and this modified Valentine's Day-White Day tradition has spread from Japan to South Korea, urbanized China and Taiwan (South Korea, in turn, had further innovated with "Black Day" on April 14, when singles who lacked Valentine's Day and White Day suitors commisserate together.) The Japanese have also adopted a version of the American criminal jury trial, baseball, a form of the American Thanksgiving celebration (in Japan they have KFC Chicken instead of the grand Turkey feast), Western clothing styles, American style toilets, and their own versions of the American comic book tradition.

But, Japanese political, legal and social innovations have had considerably less penetration into the American scene, and Japan, because it is considerably different from the U.S. has adapted rather than directly copied many of the innovations it has brought from the United States and Western nations generally. In the same time period, in contrast, South Korea, which sees Japan as within its national scope of relevance as a model, has heavily borrowed from the Japanese model in its laws, form of economic organization and culture.

Dominant Players More Strongly Resist Innovation From Others

It also seems to be the case that the more dominant a political and cultural unit is, the less prone it is to be influenced from contagions of innovation from elsewhere. New York, California and Texas are more comfortable being outliers that ignore legal and political innovations from outside their states than Connecticut, Washington State and Oklahoma. The United States was more comfortable ignoring innovations in the rest of the world than the nations like Canada, the United Kingdom, France, Germany and Italy.

The fact that Egypt could be so strongly influenced politically by developments in much smaller, but otherwise very similar Tunisia is a testiment to Egypt's lack of dominance in the region and its lack of a strongly distinct self-identity from its neighbors as a culture of its own as opposed to as a large generically Arab state, at this moment in history. Its unique identity has been swallowed in its understanding of itself by its regional identity, something that was not true in the ancient world, were it was a dominant player on the international scene that largely went its own way.