Law Commons^™

Misaligned Lawmaking, Timothy Meyer

Faculty Scholarship

This Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order to …

Analyzing The Trump Administration's International Trade Strategy, Rachel Brewster

Faculty Scholarship

No abstract provided.

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

Building Multilateral Anticorruption Enforcement: Analogies Between International Trade & Anti-Bribery Law, Rachel Brewster, Christine Dryden

Faculty Scholarship

In the last twenty years, the United States government has put substantial resources behind the fight against .foreign bribery by using the Foreign Corrupt Practices Act (FCPA) to prosecute unilaterally foreign and domestic companies who engage in corruption abroad. The United States is not entirely alone in this effort, but other countries have been far less vigorous in investing resources in investigations and prosecuting cases. Because of the unilateral and extraterritorial nature of FCPA prosecutions, these cases are sometimes controversial as foreign governments resist American influence in their commercial relations.

In response to this international tension, as well as a …

Pharmaceutical Patents And The Human Right To Health The Contested Evolution Of The Transnational Legal Order On Access To Medicines, Laurence R. Helfer

Faculty Scholarship

Disputes over the regulation of access to medicines are occurring in multiple transnational, national, and local venues. Competing groups of states and non-state actors shift horizontally and vertically among these forums in an effort to develop competing legal rules over the propriety of granting intellectual property (IP) protection to newly developed life-saving drugs. This chapter applies the framework of Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015) to explain the origins of these controversies and their consequences. The chapter argues that the current state of affairs arose from a clash between two previously discrete TLOs—one relating to …

Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This …

Stepping Stone Or Stumbling Block: Incrementalism And National Climate Change Legislation, Rachel Brewster

Faculty Scholarship

This Article examines the effects of incremental domestic legislation on international negotiations to limit greenhouse gas emissions. Mitigating the effects of climate change is a global public good, which, ultimately, only an international agreement can provide. The common presumption (justified or not) is that national legislation is a step forward to an international agreement. This Article analyzes how national legislation can create a demand for international action but can also preempt or frustrate international efforts. The crucial issue, which has been largely ignored thus far, is how incremental steps at the domestic level alter international negotiations. This paper identifies four …

The Andean Tribunal Of Justice And Its Interlocutors: Understanding Preliminary Reference Patterns In The Andean Community, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system. We find that the …

Islands Of Effective International Adjudication: Constructing An Intellectual Property Rule Of Law In The Andean Community, Laurence R. Helfer, Karen J. Alter, M. Florencia Guerzovich

Faculty Scholarship

The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties …

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster

Faculty Scholarship

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international …

From Free Riders To Fair Followers: Global Competition Under The Trips Agreement, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

Socialist Countries In Gatt, K. Grzybowski

Faculty Scholarship

No abstract provided.

East-West Trade Regulation In The United States (1974 Trade Act, Title Iv), Kazimierz Grzybowski

Faculty Scholarship

No abstract provided.

Towards Integrated Management Of International Trade - The U.S. Trade Act Of 1974, Kazimierz Grzybowski, Victor Rud, George Stepanyenko

Faculty Scholarship

No abstract provided.

The Foreign Trade Regime In The Comecon Countries Today, Kazimierz Grzybowski

Faculty Scholarship

No abstract provided.