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In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing international trade, as well as regional free trade agreements. This inconsistency poses a political problem domestically and a diplomatic problem internationally, to say nothing of potential consequences authorized by the WTO. To ward off these consequences, governments will seek to justify their measures under a series of exceptions to trade obligations first drafted in 1947. Although governments have invoked these exceptions with increasing frequency in recent years, they have never been tested in the manner that they will be in the coming years. Indeed, a provision in the 2021 Infrastructure and Investment Act-the first major legislative piece of the Biden Administration's economic agenda-contains a provision directing the government to invoke these exceptions to justify measures to manufacture personal protective equipment (PPE) in the United States. This Article seeks to make sense of the exceptions and their role in the legal, political, and diplomatic proceedings that determine the fate of public policies that restrict trade. It distills three paradigms through which to view legal exceptions in international trade agreements. Under the Policy Space Paradigm, governments have the right to violate international obligations so long as the violation is necessary to pursue a public policy goal permitted by an exception. ...

AbstractThis Essay argues that trade agreements may overly constrain the ability of states to regulate supply chains for critical products such as medical supplies. Free trade agreements (FTAs) may exacerbate supply chain concentration, especially through loose rules of origin. And WTO rules constrain preventative regulation of supply chain risks designed to prevent a crisis, while providing exceptions for aggressive action only in the face of a crisis. Thus, WTO members risk flouting WTO rules if they do not limit aggressive, preventative supply chain regulation.

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 protect and promote the goals of both policies. Most importantly, I argue—contrary to most commentary—that the Trump Administration's proposal to limit the duration of trade agreements like NAFTA would better align trade liberalization and trade adjustment assistance. Third, the Article discusses the Misalignment Thesis's broader application to deregulatory bargains struck in a wide variety of fields, including transportation, telecommunications, and healthcare. The Misalignment Thesis suggests that deregulation often has unintended consequences because the structure of deregulatory bargains undermines their long-term effectiveness.

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 protect and promote the goals of both policies. Most importantly, I argue-contrary to most commentary-that the Trump Administration's proposal to limit the duration of trade agreements like NAFTA would better align trade liberalization and trade adjustment assistance. Third, the Article discusses the Misalignment Thesis's broader application to deregulatory bargains struck in a wide variety of fields, including transportation, telecommunications, and healthcare. The Misalignment Thesis suggests that deregulation often has unintended consequences because the structure of deregulatory bargains undermines their long-term effectiveness.

American ambivalence toward international institutions is nothing new. In his farewell address, George Washington famously warned against foreign entanglements. After World War I, the U.S. Senate rejected the Treaty of Versailles, leaving the United States outside the formal post-war order it helped establish and neutering the new League of Nations. Throughout the late twentieth century, the United States refused to ratify multilateral agreements ranging from the Vienna Convention on the Law of Treaties, to the UN Convention on the Law of the Sea, to a host of human rights agreements. Nor did the dawn of the twenty-first century change the United States' attitude. In 2001, President George W. Bush began his administration by "unsigning" the Rome Statute of the International Criminal Court and the Kyoto Protocol on the UN Framework Convention on Climate Change. These agreements run the gamut from treaties on peace and security to the environment, and from human rights to the law of the sea. But one area -—international trade-— has fared better than others in insulating itself from the United States' hesitation toward international institutions. Even while he warned against foreign entanglements, Washington also counseled his successors to "establish[,] with powers so disposed, . . . conventional rules of intercourse, the best that present circumstances and mutual opinion will permit . . . ." This embrace of commerce and the international institutions that support it has been relatively consistent throughout American history. Even in the face of significant domestic political resistance to new trade agreements, such as opposition to NAFTA in the early 1990's and the Seattle riots at the WTO Ministerial in 1998, key government institutions have by and large supported international trade institutions, even when they have been leery of other institutions. No longer. The 2016 presidential election sent Donald Trump to the White House on a platform of renegotiating trade agreements that he argued had poorly served ...

The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, "fair." Although only achieving broad consensus recently, the critique that U.S. trade agreements are unfair has been around for decades. Since 1992, much of this fairness critique has focused on ensuring that trade liberalization does not undermine non-commercial values, such as environmental protection and labor conditions. Beginning with the negotiation and ratification of the North American Free Trade Agreement (NAFTA) in the early 1990s, governments have responded by including in their trade agreements a prohibition on the selective enforcement of environmental and labor laws. This ban — a central component of efforts to make sure that free trade agreements are, indeed, fair — aims to prevent a global race to the bottom in environmental and labor standards.These efforts have fallen wide of the mark. This Article makes two novel contributions. First, it demonstrates empirically that selective enforcement is considerably more pervasive than commonly thought. But contemporary selective enforcement is the reverse of the kind of selective enforcement that has traditionally concerned trade critics. Instead of selectively enforcing environmental and labor laws to gain a trade advantage, governments selectively enforce trade laws in ways that undermine environmental and labor interests. To illustrate, the Article presents data from trade enforcement actions in the energy and fisheries sector to demonstrate this claim. In both sectors, trade laws are enforced exclusively against natural resource substitutes, such as renewable energy and farmed fish. The natural resources with which these products compete, fossil fuels and wild fish, benefit from the same allegedly unlawful conduct but are not targeted for enforcement.Second, this Article presents a theory of how selective ...