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Globalization and Expertise Seminar

Lawmaking typically involves value judgments. What level of economic redistribution is appropriate? What principles should govern the allocation of costs for responding to environmental challenges, such as species conservation or climate change? Disputes that turn on value judgments are often very difficult to resolve. For this reason, international law (like domestic law) increasingly tries to substitute disputes over facts for disputes over values. For example, trade-restrictive health and safety measures must be based on a scientific assessment. Facts are, in principle, knowable and therefore disputes about facts may be easier to resolve than disputes about values. Expertise in fields such as science and economics has thus come to play a central role in international lawmaking and dispute resolution. Expertise-driven international law, however, often only masks disputes about values. Moreover, the central values underlying the international system – such as whether to allow the free movement of goods or persons, or how to prioritize economic development and environmental conservation – are contested. This contestation puts a strain on international institutions and has prompted a backlash against the role of expertise in governance. The goals of the course are twofold: 1) to understand how lawyers incorporate technical expertise into international law and use it to resolve international legal disputes, and 2) to think more broadly about the relationship between expertise, on the one hand, and the political values on which international legal institutions rest, on the other hand. The course will discuss this problem primarily in the context of international trade law, investment law, and environmental law. We will also discuss how these tensions relate to similar themes in domestic lawmaking, especially the proper roles of legislatures versus administrative agencies. [3 credits] Enrollment limited