This is a response from Tim Meyer to my post on his new article
Many thanks to Simon for his thoughtful take on my new article, A Political Theory of Legal Exceptions, as well as the opportunity to respond.
Simon and I do agree on a lot. Most notably, we agree on the need for more flexibility, as Simon has written about in his recent paper on Digital Trade Agreements. Points of agreement are less interesting, though, so I’ll focus mostly on our disagreements.
First, although Simon & I mostly agree on the benefits of loosening the requirements of GATT XX, Simon is a perhaps a bit more skeptical than I am of the need to do so. He suggests that “Article XX might look very different when applied to Article III than Article XI. In fact, you might not even need Article XX when Article III is involved, if you interpreted Article III in a certain way.” I agree with Simon on Art. III, but these kinds of statements make me nervous! I see no textual reason for Article XX to apply differently to violations of Article III as opposed to Article. XI. And although I know Simon does not intend this, I worry that licensing a different approach will result in less flexibility for allegedly discriminatory measures that pursue non-trade public policy goals, rather than more.
Second, Simon questions whether exceptions add much to the political incentive protectionist interests have to find allies. Greenwashing, Baptists-Bootlegger coalitions, and the like occur in lots of contexts. But this concern assumes too much. A conventional view of trade’s primary obligations (e.g., tariff limits) is that they influence domestic politics and policymaking by incentivizing alliances between exporters & domestic consumers. I’m not sure why some trade rules (primary obligations) would influence domestic politics but others (exceptions) wouldn’t. Policymaking does not stop with politics, though. A range of government actors shape policies during both their formulation and their enactment. Legal exceptions in treaties can exert a powerful influence over government policies through these actors. Exceptions give government lawyers, such as those at USTR or trade lawyers at the House Ways and Means and Senate Finance Committees, a way to justify—and thus a reason not to oppose—mixed motive policies. Exceptions work both politically and with policymakers.
Next, Simon worries that mixed motive policies may dilute the effectiveness of the non-trade policy, as measured against a hypothetical pure non-trade policy. That is probably true in some cases, and, e.g., environmentalists are free to try to enact a pure policy if they are able. But politics is the art of compromise. Predominantly protectionist measures should not survive review under trade rules, as I argue in the piece, but trade rules should also have a bit more tolerance for the realities of politics and policymaking. Exceptions provide a legal vehicle for creating that flexibility.
Simon ends by arguing “that we as a . . . society are better off overall with NAFTA and the modest liberalization under the WTO,” even given the disruptions trade creates. Happily, we don’t have to make a binary choice! International trade agreements have been a major force for positive change, economic and non-economic, at home and abroad. I am not suggesting otherwise. But that doesn’t mean that we shouldn’t revisit the degree of flexibility those agreements create for governments balancing different kinds of policy and political concerns.
To that end, I agree with Simon that more research is needed into the effects of new trade barriers. But that research needs to look at all of the effects—not just economic costs but also non-economic benefits that may be hard to quantify. And it needs to do so with realistic assumptions about what alternatives are politically feasible in the absence of mixed motive policies. Trade law should not, as the old joke goes, assume a can opener.
