Perspectives on the Jurisprudence of International Trade: Costs and Benefits of Legal Procedures in the United States
![handle is hein.journals/mlr82 and id is 1600 raw text is: PERSPECTIVES ON THE JURISPRUDENCE
OF INTERNATIONAL TRADE: COSTS AND
BENEFITS OF LEGAL PROCEDURES IN
THE UNITED STATESf
John H. Jackson*
The question of how to implement worthy governmental policies is al-
ways important - and often neglected. Much attention goes toward the
study and formulation of policies, but frequently the question of imple-
menting the policy is relatively ignored or left to technicians. Yet in con-
nection with many subjects, certainly including international trade, major
difficulties and perplexities are encountered in carrying out a policy. An
important dimension of international economic policy consists of the legal
processes, both international and national, that are connected with imple-
menting those policies.'
Both in the United States and abroad the U.S. legal system has been
strongly criticized for its handling of international trade regulation.2 Some
of this criticism parallels general statements made about the United States
as a litigious society, with too many lawyers and too much attention to le-
galism. Despite their serious data faults and some serious misconceptions
about comparing the role of a lawyer in the United States to false counter-
parts in other countries, I feel that it is worthwhile to examine these criti-
cisms more systematically.
It is said, for example, that the U.S. legalistic system of regulating trade
is costly, is itself a non-tariff barrier to trade, and lends itself to manipu-
lative use by special domestic interests. Some of this may be true, but a
systematic appraisal must examine at least three questions: (1) What are
the real costs of the system? (2) What are the benefits of the system? and (3)
What alternatives to the system exist or are feasible, and what are their
costs and benefits?
In this brief article I will confine myself to an analysis of the U.S. legal
system pertaining to regulation of imports, deferring to other works an ex-
t A preliminary and summary version of this article was presented by invitation at a panel
chaired by Professor Robert Baldwin of the University of Wisconsin, at the annual meeting of
the American Economic Association in San Francisco, December 27, 1983.
* Hessel E. Yntema Professor of Law, University of Michigan Law School, Ann Arbor,
Michigan, and former General Counsel of the Office of the U.S. Trade Representative, Office
of the President of the United States. A.B. 1954, Princeton University; J.D. 1959, University of
Michigan. - Ed.
I. See generally J. JACKSON, WORLD TRADE AND THE LAW OF GATT (1969) [hereinafter
cited as J. JACKSON, WORLD TRADE]; J. JACKSON, LEGAL PROBLEMS OF INTERNATIONAL ECO-
NOMIC RELATIONS (1977) [hereinafter cited as J. JACKSON, LEGAL PROBLEMS].
2. See Green, The NewProtectionism, 3 Nw. J. INTL. L. Bus. 1 (1981); ADVISORY COUNCIL
ON JAPAN-U.S. ECONOMIC RELATIONS, JAPAN-U.S. BUSINESSMEN'S CONFERENCE, AGENDA
FOR ACTION 35-39 (July 1983).
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Perspectives on the Jurisprudence of International Trade: Costs and Benefits of Legal Procedures in the United States
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