I was intrigued by something former USTR general counsel Stephen Vaughn said in his Trade Talks podcast last November:
there's an old school of law that goes back to the 20s at Yale called Legal Realism, and the Legal Realists were people who believed that what matters is not what's on the piece of paper, what matters is who the decision makers are, and the law is whatever they tell you it is. And to some extent, this is part of what we're wrestling with here. It's not just a question of what gets written down, it's a question of what's going to actually happen at the other end of that process.
I was supposed to be part of a conference Joost was organizing, and I decided to write about how legal realism, in the sense described above, may be guiding the administration's thinking on dispute settlement in trade agreements. The conference was delayed due to social distancing, but I had already started writing, so I posted a draft on SSRN of where I am now:
The Trump Administration Gets (Legal) Real(ist) On Trade Enforcement and Adjudication
This article examines briefly the views of the legal realists, and considers the Trump administration's approach to international trade dispute settlement in that context. What may at times leave trade observers puzzled may just be a practical approach to tilting the scales in the favor of the United States. The substantive rules matter and the procedural rules matter, but the judges also matter. The Trump administration recognizes the importance of the last one, and it is willing to fight to get the judges it wants.
Comments welcome!