Man Without Qualities

Monday, December 08, 2003

The Bad Man's Theory of International Trade Law

The great and hugely influential Justice Oliver Wendell Holmes, Jr. maintained that law should be viewed from the perspective of a self-interested "bad man." That is, someone who cares only about economic consequences of his actions. Holmes saw law as simply a system of pricing - and this was especially true of commercial contract law. Although some people have always lamented Holmes' contribution as pernicious (he intended it to be shocking) it is now understood even by the best such lamenters that for better or for worse Holmes' views and views directly derived from them are today commonplace - and actually dominant.

It is also a practical, real-world fact that commercial contracts are generally treated by their parties in exactly the way Holmes described. A company that enters into a contract to buy a certain amount of, say, coal from a coal producer does not see itself as morally obligated to buy that much coal. Rather, the decision to buy the coal will generally be treated as an economic matter along these lines:

If we buy the coal our net cost will be X, and if we don't buy the coal (and therefore breach the contract and obligate ourselves to pay the damages resulting from the breach) our net cost will be Y. Therefore, if X > Y, we will not buy the coal.

Nobody in the coal business will be shocked or surprised. In fact, to do otherwise would make other commercial actors wonder about one's intelligence. And the law (generally the Uniform Commerical Code) reflects these realities by assuming that monetary damages are normally sufficient remedy, and denying "specific enforcement" of the contract except in highly unusual cases. Ordinary people make such decisions every day - as when a homeowner walks from a non-recourse mortgage on a home that has depreciated or been destroyed by an earthquake. Indeed, for many months following the Northridge Earthquake the majority of home sales in the San Fernando Valley were forclosure sales. Many of those homeowners were perfectly capable of keeping up their home payments - it just wasn't worth while for them to do it on a house that had experienced, say, $100,000 in earthquake damage after already being hit with serious real-property deflation. Those home owners were "bad men."

Holmes' "bad man" approach to the law is even more accepted as usually (there are exceptions) being both the proper ("normative") structure of law and actual ("positive") practice, in the arena of international law. Nation states are generally thought to look out for their own interests - with the main question being how "enlightened" or "correct" their view of their own self-interest really is.

There is perhaps no arena in which the "bad man" theory is more dominant and casually accepted than the arena in which all of these factors favoring the approach align in a kind of grand, legal and commercial syzygy: international commercial trade agreements.

That is all by way of background.

The Man Without Qualities is no fan of the United States' just-rescinded steel tariffs. Those steel tariffs exhibit a law-abiding, "bad man" approach to the WTO. The US did not walk away from the law - it accepted the right of other parties to the WTO to impose countervailing duties, which is the remedy allowed to them. In exactly the same way a Holmesian "bad man" accepts the law's right to compel the payment of monetary damages for breach of a contract. That's the price of breaching the contract.

But its simply preposterous for EU trade commissioner Pascal Lamy to write today in the Wall Street Journal - with emotion whose genuineness is most comparable to that of the Walrus and the Carpenter expressed over the oysters they have just devoured:

But abuse comes at a price, and that price is systemic. The U.S. action may have already let the genie out of the bottle. Every protectionist move by others can now be justified with reference to U.S. measures. Many former arch-enemies of trade defense instruments, including major developing countries, are now among the heaviest users of anti-dumping rules. And there are plenty of steel-producing countries getting ready to cite the U.S. example to keep out imports. Unsurprisingly, there are also calls for fundamental reform of the trade defense sector in the context of the Doha Round.

Please. To insist that a country or other commerical contract party must actually perform under a trade agreement is all but equivalent to insisting that parties to such contracts are generally entitled to specific performance, not monetary damages - a position thoroughly rejected by commercial practice, legal theory and common sense. [Any argument that civil law establishes specific performance as the usual remedy for breach, unlike the common law preference for monetary damages, would reflect nothing but a naivete on the part of the one making the argument, since the civil law "preference" is so gutted with exceptions that in practice the result is essentially the same as the common law.]

Just by way of example: The EU has supposedly eliminated restrictions on imports of Japanese cars. But no Japanese car manufacturer thinks it can export unlimited numbers of cars to Europe - where consumers would love to buy them. Instead, the Japanese know that they must open plants in Europe and restrain their market share expansion. The actual EU stance towards Japanese car sales is like that of the United States - but much, much worse.

To pick another example: No sensible person believes that Japan does not practice the extensive non-tariff trade restraints that Japan (and it's more foolish-sounding apologists in the West) so violently deny, or that other Asian countries have not picked up many of these tricks.

One could go on and on. So what? Nobody is surprised by any of that that. Nobody is weeping on the pages of the Wall Street Journal that genies have emerged from bottles when Japan trumps up yet another "health and safety" regulation that stifles some import to the benefit of its Japanese equivalent.

Did the Bush Administration's steel tariffs mark a shift in US trade policy? Yes. It made them a little more those of the rest of the world. That's not necessarily a good thing - although it's humorous to see "internationalists" who argue so passionately in other spheres that the US should act more like the rest of the world fulminating over this Administration gambit.

It really asks a lot of even a hard boiled "bad man" to stomach the sanctimonious, disingenuous pretenses of Mr. Lamy and the carefully worded evasions of Herr Doktorprofessor Paul Von Krugman. [I have already noted in prior posts that Herr Doktorprofessor rarely argues from economic principles for free trade - he prefers to cite international law.]

The Administration's gambit may even have a strategic benefit for the American trade negotiation position. Mr. Lamy suggests that the gambit has resulted in calls for the fundamental reform of the trade defense sector in the context of the Doha Round.

Amazingly, Mr. Lamy writes as if such calls for fundamental reform were a bad thing.


Messrs. Krugman and Lamy ask uo to believe that Europe is appalled over the supposedly illegal US tariffs, where the EU itself is constantly faced with this kind of report concerning its member states' flouting EU regulations:

The latest Eurobarometer to be released this week found that just 48 per cent of EU citizens viewed membership as a "good thing", down from 54 per cent last spring.

[E]ven the French were below half for the first time after months of battles with Brussels over tax cuts and illegal aid to ailing firms.

welcome to the wow gold, cheap WoW Power Leveling, service site,wotlk gold buy cheap wow gold,wow gold,world of warcraft power leveling buy wow gold
free dirty lesbian licking sample videos indian lesbian pussy indiana laws on adultery with lesbian houston gay and lesbian turney best friend mom lesbian creative lesbian crazy lesbian orgie
Digital Memory sure is becoming cheaper these days. I'm curious as to when we will eventually hit the ratio of 1c to 1 Gig.

I'm still waiting for the day when I will finally be able to afford a 20 TB harddrive, haha. But for now I will be satisfied with having a 16 GB Micro SD in my R4i.

(Submitted by Nintendo DS running [url=]R4i[/url] SPPost)
Check out a vineyard. This can present you with a lot of information about how vino is manufactured, what distinguishes red wine kinds from the other and what you need to look when choosing a wines. They often have totally free sample at vineyards, so you may also pick kup a new favored. [url=]Nike Blazers[/url]
Make sure your business goals are always in your considered process. Multi-level marketing is an organization and never something that you ought to only do if you feel like it. Through making accomplishment your primary aim and maintaining it at heart in everything you do, you will be much more likely to be successful. [url=]Adidas Wings[/url]
Marketing with video is the best way to give buyers a solid idea of what your products seem like well before they buy these products. You need to produce some video clips in which you show your product or service. Display the numerous characteristics, test these products in extreme situations and do lots of near ups. [url=]Tiffany And Co[/url]
If you commonly journey, you really should traveling from the off of-year. Each accommodations and airlines tend to be less expensive once you by during the off-year. Normally, the away from-season occurs in winter, although this is probably not the way it is if you are traveling to cooler places, including Canada or Alaska. [url=]Adidas Jeremy Scott Uk[/url]
See your dentist frequently. It might sound clear, but gonna your dental practitioner frequently will probably be your greatest approach to great oral health. He or she should be able to place and solution modest problems before they come to be major problems, helping you save lots of time, funds, and discomfort. The greater exclusive your articles is, the higher away from your search positions are usually in search engines like google. Genuinely making it in article promotion needs you to discover the concepts of search engine optimisation. The bigger you can ranking, the better eyeballs can perspective your posts. [url=]Adidas Wings[/url]

Get receipts for everything you pay for, and figure out how to submit them. Throwing these receipts in to a submit drawer labeled by calendar month will not be gonna be sufficient for your IRS, so be sure you have a in depth declaring process. Splitting things up by kind, date, and four weeks of deal, is generally a great strategy. Publish invitee blog articles. By writing blogs and forums for other people within your discipline, you gain access to their viewers and make them would-be purchasers of your respective products or services. Make sure you include a hyperlink to your website anywhere in the article to allow them to see your site if they'd like. Invitee blog sites also permit you to show yourself as a competent speech within the field, as well as a qualified author. An incredible idea if you're enthusiastic about purchasing wine is usually to not get also taken out with buying a lot of wines that you just presently like. Preferences modify at all times and you will feel sorry about packing your vino cellar with a number of wine which you eventually like right now. You must make sure to look for any broken links before posting your page to the host. You can utilize Dreamweaver to check this out without difficulty with just a click of a button. Should you post your site without having checking the hyperlinks initial, it will really inflame your online visitors when they run into cracked hyperlinks as they are looking to maneuver through your website. If nothing you are carrying out is functioning, phone an experienced. There are actually qualified specialists which you can use to help get rid of the pests which can be in your house already or protect against brand new ones from going into your house later on. This can be the ideal expenditure that you simply ever make for your house. Utilizing environmentally friendly energies is just not an justification to work with more vitality than you really want. Do not forget to change the lighting fixtures away from if you abandon a room and wearing a sweater instead of turning the temperature up. Even when green energies are less costly, you need to nonetheless do your greatest in order to save just as much power since you can.

Enter the habit of just giving your pet dog a primary command just once. It would appear to be very easy to just recurring it over and over until he reacts, but don't accomplish that. Rather, revisit the training right up until your puppy understands that you anticipate him to react the very first time you say some thing. Getting real estate property is a good expenditure venture for anyone to carry out. To have success even though, you will need to be well well prepared. There are lots of little specifics which will evaluate if you receive a great or terrible deal. Try this advice and suggestions to improve your chances of success. An old home cure for acne is a paste of powder sugar-cinnamon and bee honey. The recommendation is to put it on just before bed furniture after which scrub it well in the morning, but this will keep tacky darling on your bedding. Rather, allow it rest for thirty minutes and rinse it off prior to slide within your blanket. After reading this informative article, with a little luck there is a clear being familiar with about cosmetic surgery. Surgical treatment enables you to change the look of anyone. Given the quantity of cosmetic surgery procedures that exist, the chances are limitless. So, if you are considering hopping under the blade, recall the guidance using this report.Build A Much better Site Using These Web Page Design Ideas If you need to absorb added oil with your T-Zones, you should use blotting paperwork to rapidly give the face a more flat look. These sheets usually come in tiny, pocket-scaled packets many are offered with rice powder or even in a natural powder-cost-free alternative. The packets are really cheap and may be slipped to your tote or workplace drawer. Be cautious about which collection balances you spend off of. With all the present way the credit reporting system is set up, paying back a assortment firm might actually decrease your credit score as the time of previous activity will likely be reset. A compensated selection has no a smaller amount of an impact on your own report than a wide open assortment. This resetting from the date of last action also means the several 12 months revealing clock will restart. If you can wait out a selection company, practice it.

web link ambien cr coupon card - ambien pregnancy
Post a Comment