Managing U.S-EU Trade Relations through Mutual Recognition and Safe Harbor Agreements:"New" and "Global" Approaches to Transatlantic Economic Governance?

governance; regulation; regulations; regulatory competition; directives; implementation; WTO

The Extensive (But Fragile) Authority of the WTO Appellate Body

The authority of an international court (IC) is not necessarily evolutionary and its development unidirectional. This article addresses the authority of the Appellate Body (AB) of the World Trade Organization (WTO) and shows how it rapidly and almost immediately became extensive, but has since exhibited signs of becoming more fragile. The article applies a typology of IC authority developed by Alter, Helfer and Madsen (2014) and explains the transformation from narrow authority (a dispute resolution venue under the GATT based on political negotiations) to extensive authority (a judicialized WTO dispute settlement system with a sophisticated case law) and presents empirical indicators of the rise of the AB’s authority. Such rapid development of extensive authority is arguably a unique case in international politics at the multilateral level. That authority nonetheless remains fragile, and shows signs that it could decline significantly for reasons we explain

Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards

Contemporary critiques of globalization processes often focus on the potential leveling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This Article, in contrast, examines the extrajurisdictional impact of EU data protection policy on the behavior of private parties in the United States, leading to a ratcheting up of U.S. privacy standards. The Article takes a socio-legal approach, exploring the many ways in which the EU Directive on the Processing of Personal Data affects U.S. practice through changing the stakes of US. players-including regulators, businesses, privacy advocates, lawyers, and privacy service providers-and thereby changing the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US. practice, and international trade rules, the Article finds that WTO law, rather than constraining the Directive\u27s extra-jurisdictional impacts, provides the EU with a shield against U.S. retaliatory threats, thereby further facilitating a trading up of data privacy standards. The Article concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections such as data privacy standards. These include: the desire for firms to expand their markets, subjecting themselves to foreign regulatory policy; European states\u27 ability to enhance their bargaining power by acting collectively, using the large EU market as leverage to change foreign standards; the nature of data privacy protection as a luxury good demanded by residents of relatively wealthy, more powerful jurisdictions; the externalities of U.S. under-regulation of privacy protection, legitimizing EU intervention; and the constraints of WVTO supranational trade rules on U.S. unilateral retaliatory threats. While the Article focuses on the issue of data privacy, its analysis applies to broad areas of law affected by economic globalization

Addressing the Negative Externalities of Trade: Flanking Policies and the Role of Package Treaties

This article examines the rationales for addressing sustainability and social inclusion in trade policy and the tradeoffs among imperfect institutional choices in doing so through “flanking policies.” It examines three types of negative spillovers or externalities implicated by trade: material, moral, and social/political. Part I defines terms and sets forth the argument. Part II typologizes the three categories of negative externalities and then highlights the challenges posed for flanking measures given the reciprocal nature of externalities. It respectively addresses environmental harms and labor and social inclusion concerns. Part III assesses different institutional choices for addressing negative externalities, dividing them between domestic measures targeted at protecting domestic concerns and international ones, such as package treaties. Part IV shows how the concept of a flanking measure can be flipped, so that environmental sustainability and social inclusion become the core and trade measures the flanking policies. Part V concludes

How Do We Get Along? International Economic Law and the Nation-State

Review of Dani Rodrik\u27s Straight Talk on Trade: Ideas for a Sane World Economy

ABILA Keynote Address: Beyond International Law? A Dangerous Time

In this keynote address for the 2023 International Law Weekend conference of the American Branch of the International Law Association (ABILA), I first address the dangers of the conference theme “beyond international law” at a time when challenges to international law and institutions increase and aim to constrain international law’s normative force. We have been here before. The world today recalls that of the interwar period, a time of growing economic insecurity and inequality that helped to catalyze the rise of authoritarian movements. During that period, Carl Schmitt was a leading legal theorist who eventually became a member of the Nazi party, but who also influenced the far left, as the right and left found a common enemy in the democratic Weimar Republic. In the United States, the legal realist movement arose with a different response to the economic and social challenges of that period. I foreground three interacting components of legal realism that will be central if we are to think beyond international law in an effective way today: Deweyan pragmatism, empiricism, and experimentalism. I apply them to transnational problems, noting how international law is part of broader transnational legal ordering processes. I show how this approach is critical for responding to transnational challenges, focusing particularly on climate change

Transnational Legal Ordering of Criminal Justice

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