Trade & Security Exceptionalism

Abstract:
U.S. trade law suffers from a type of legal schizophrenia.  On the one hand, the United States has sought since the mid-twentieth century to liberalize global trade policy.  The resulting multilateral trade law regime and plethora of plurilateral trade agreements have successfully broken down barriers to trade across the world and across a variety of both goods and services sectors.  But alongside those moves, U.S. and international trade law have also created exceptions and authorities to depart from those primary rules in instances of national security or other under criteria that comprise a risk to U.S. economic security.  Taken together, these two legal categories seem benign.  But when the former is overtaken by the latter, the result is a global economic and legal crisis.  This Article makes three contributions.  First, I argue that the neoliberal consensus that has dominated the last fifty years of trade rule development has exceptionalized national security to its detriment.  I provide a thorough descriptive account of the two categories of delegations that constitute our exceptional trade-security apparatus and show that emergencies and exceptions have grown in scope and power despite a time of relative trade peace since the 1990s.  Second, I make a normative case for reframing trade and national security within what I call the trade rule of law.  I apply alternative visions of trade and security – visions that have long dominated U.S. history, but that have been overshadowed in recent years – to reconstruct the congressional-executive relationship on trade.  Finally, I turn to the functional manifestations to demonstrate the need for reframing through specific examples.  I argue that the exceptionalist paradigm has made the president a manager, rather than an agent, on trade and security, leading him to use what I term “trade executive agreements” in recent years to go beyond the intended delegations and create binding rules with U.S. trading partners outside of congressional reach.

Speaker biography:
Professor Claussen’s primary scholarly interests include trade and investment law, dispute settlement and procedure, international contracts and issues in cross-border business transactions, national security including cybersecurity law, and federalism and conflict of laws. Prior to joining the Miami Law faculty in 2017, Professor Claussen was Associate General Counsel at the Office of the U.S. Trade Representative in the Executive Office of the President. There, she represented the United States in trade dispute proceedings and served as a legal advisor for the United States in international trade negotiations.

Professor Claussen has published in the print or online editions of the Yale Law Journal, the Minnesota Law Review, the American Journal of International Law, and the Yale Journal of International Law, among others. She has been a Brandon Research Fellow at the University of Cambridge’s Lauterpacht Centre for International Law; a visiting scholar at the University of Copenhagen’s Centre of Excellence for International Courts; a visiting assistant professor at Indiana University’s Maurer School of Law; and, an invited seminar leader at the George C. Marshall Center for Security Studies. In 2018, Professor Claussen was one of eleven scholars selected to present research at the Melbourne/Nottingham/NYU Junior International Law Faculty Forum. Her work on cross-border ethical issues in international commercial arbitration was awarded the International Institute for Conflict Prevention and Resolution Paper Prize.

Professor Claussen holds a number of leadership positions within international law and arbitration professional associations. Among other activities, in 2018, she served as co-chair of the 112th American Society of International Law (ASIL) Annual Meeting. She is co-chair elect of the ASIL International Economic Law Interest Group, and serves on the Academic Council of the Institute for Transnational Arbitration. Professor Claussen has blogged at Lawfare, the International Economic Law & Policy Blog, and Opinio Juris, and been featured on or consulted as an expert for various media outlets including Marketplace, CNBC, and the Financial Times.

Earlier in her career, Professor Claussen was Legal Counsel at the Permanent Court of Arbitration in The Hague where she advised on disputes between countries, and on investment and commercial arbitrations involving countries and international organizations. She also served as a law clerk to the Honorable David F. Hamilton of the U.S. Court of Appeals for the Seventh Circuit. At Yale, Professor Claussen served on the board of the Yale Law Journal and was Editor-in-Chief of the Yale Journal of International Law. She was awarded the Jerome Sayles Hess Fund Prize for excellence in international law and the Howard M. Holtzmann Fellowship in international dispute resolution.