I’ve just posted a new draft to SSRN, A Political Theory of Legal Exceptions. Comments welcome. The main argument is that exceptions (eg GATT XX) in int’l trade law encourage domestic political coalitions to form around mixed motive policies. Thread 1/ : https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3817719

Mixed motive policies pursue a goal that falls w/i the exception & a protectionist goal. This dynamic, which I call Channeling, is counterintuitive. We normally think of trade agreements as restraining protectionist. Exceptions, tho, operate not to restrain 2/

but to channel political pressure for protection into domestic support for policies-such as climate change or public health-making it more likely that such policies will be enacted domestically & that the protectionist elements will survive review. 3/

When exceptions create domestic support for public goods like climate change or public health measures, this Channeling dynamic can be beneficial. At the same time, it also creates the possibility of fig leaf uses of exceptions, which can destabilize the system as a whole. 4/

The paper does 2 more things. 1) It contrasts the Channeling Paradigm with 2 dominant paradigms for thinking thru exceptions: the Policy Space Paradigm & the Safety Valve Paradigm. 5/

2) I think thru Channeling's implications for how tribunals review mixed motive cases. I argue that tribunals should uphold an exception’s use if the challenged measure’s “predominant motive” is permitted by the exception. I explain how this would work in GATT XX analysis. 6/

The draft has had a long gestation period, with early versions presented on a panel w/ @jbentonheath & @snlester @asilorg Midyear Meeting hosted @brooklynlaw, @Lauterpacht_Ctr w/ comments from @EBenvenisti, & to my own faculty @vanderbiltlaw. 7/

The draft also benefitted from presentation @ColumbiaLaw & from talking w/, and/or the work of, @anubradford, @AratoJulian, @Claussen_K, @jbentonheath, @gregorycshaffer, @harlangcohen, @GaneshSitaraman, @WuerthIngrid, @clarkeja, @averstein, @mattwaxman1, & others. /END