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The European Union 20 Years after Maastricht—Transatlantic Perspectives  

On Friday, March 25, 2011, the Journal held a symposium entitled “The European Union 20 Years after Maastricht—Transatlantic Perspectives.” The focus of the symposium was to examine the European Union (EU) in a comparative and transatlantic context.       

To that end, the symposium was organized into four panels:   

Panel 1 - Transatlantic Trade: What Scope for Harmonization? 

A summary of this panel is coming soon. 

 

Panel 2 - Currency and Financial Crisis: EU and US Approaches  

The second panel of the symposium provided a fascinating comparison of the different approaches to the global currency and financial crisis in the European Union (EU) and the U.S.  Sitting on the panel were Professor William Lovett, of Tulane Law School; Professor Heidi Schooner of Columbus School of Law; Professor Anna Gelpern, of American University’s Washington College of Law; Professor Jeffery Atik of Loyola Law School, Los Angeles; and moderator Jason Reichlyn, a symposium editor of the Tulane Journal of International and Comparative Law.  The speakers opened the discussion by each giving a brief insight into a particular segment of the topic, before opening the floor to questions and discussion. 

    

            Prof. Lovett opened the panel by providing a brief summary of the financial climate and events leading up to the 2008 global financial crisis.  He described the development of a “boom-bubble mentality” in the financial industry, overleveraging of businesses across the global economy, and a “naivete mentality towards traditional financial supervision.”  Turning to the current climate, Prof. Lovett stressed that the global economy is through the emergency stage of recovery.  He concluded by addressing what he viewed as the two major responses to the crisis by the EU and the U.S.  In his opinion, the EU has focused their recovery efforts on preventing the devaluation of the Euro, and addressing the economic health of the weaker Member States.  Meanwhile, he felt that the United States response has been less clear, and as a result of the current political situation, very little substantive action has been taken. 

 

            Prof. Lovett then turned the discussion over to Prof. Gelpern, who provided an interesting summary of the EU’s response to the crisis, with a focus on the Greek debt crisis.  In her opinion, the market panic from the Greek crisis spread to the economically weaker EU countries, which led to the creation of the European Financial Stability Fund in 2010 to protect the stronger EU member economies from the weaker ones.  Prof. Gelpern pointed out that the current response to the global financial crisis is part of a pattern that has been occurring since the Third World Debt Crisis in 1982.  She opined that banking crises are consistently played out as debt crises, with the illusion that once a crisis is resolved, banks and governments can go their separate ways once again.  Instead of continuing to pursue this cycle, Prof. Gelpern believes that there should be global recognition that banks and governments co-exist.  Therefore, instead of focusing on bailouts, we should move towards more transparency and a better understanding of the interconnectedness of banks and governments.  She concluded by offering a number of possible solutions, including implementation of no bailout clauses, institutional insurance, and a change in regulation to recognize that sovereign debt is not risk free for banks. 

 

            Prof. Gelpern’s comments were followed by Prof. Schooner, who gave an in depth comparison of the effects and responses of the U.S. and the U.K to the current financial crisis.  She pointed out that while the crisis started in the U.S., where it affected the entire financial industry, in the U.K. the crisis primarily affected the banking sector, with only minimal effects on other financial institutions.  Prof. Schooner gave a brief summary of the significant reforms that have occurred in both the U.K. and the U.S.  This included a discussion of the Dodd-Frank Act in the U.S., and the Banking Act in the U.K.  In Prof. Schooner’s opinion the U.S. response was focused on creating “bigger life preservers” by further regulating the financial industry, while the U.K. is focusing on structural and institutional remedies.  Despite these differences, she pointed out that both countries are relying on the discretion of regulatory agencies to implement the new laws.  She concluded by pointing out that both countries had failed to make significant strides towards addressing supervision problems. 

 

            Prof. Atik finished out the presentations with a brief summary of the Basel III regulatory standards.  After a brief history of the first two Basel meetings, he distinguished Basel III as having a heavy institutional presence, and the “blessing” of the Group of 20, neither of which were present in the first two meetings.  In his opinion this could make the standards promulgated by Basel III stronger than the previous ones.  Of particular note was the movement at Basel III to get derivative swaps on a regulated exchange, which would ensure more transparency.  He concluded his summary by mentioning that the harmonization of the Basel III standards has been somewhat held up by the EU’s refusal to restate the Basel III mandates, which is in turn holding up the implementation of national level regulation. 

 

            After the panel members’ presentations, there was a brief question and answer session that addressed issues ranging from the future role of the dollar as the worlds reserve currency, to the future role of the Asian countries in the global economic system.  The panelists provided some interesting perspectives on the future role of the Asian economies, and the response of the U.S. and the U.K to the increasing presence of China in the global financial system.  The Q&A session also continued the panelist’s discussion of global government responses to the cross border actions of investment banks, with Prof. Atik questioning whether the regulations promulgated in response to the crisis would create any substantive changes, or were merely “salving the wounds,” and Prof. Lovett expressing his belief that there needs to be a change in the regulatory status quo, which could benefit from the presence of some new actors.  Overall, the panelists provided a very broad insight into a detailed topic, and the various “pieces” discussed provided for some very interesting in-depth conversations after the conclusion of the panel. 

                                                                                                                                  

                                                                                      By, Matthew Graham 

 

Panel 3 - Models of Multilevel Governance 

The third panel at the symposium focused on “Models of Multilevel Governance.”  Panelists included Roger J. Goebel, Alpin J. Cameron Professor of Law at Fordham University Law School; Fernanda G. Nicola, Associate Professor of Law at American University’s Washington College of Law; Keith Werhan, Ashton Phelps Chair of Constitutional Law at Tulane University Law School; and Kristin D. Brudy, newly elected Editor-in-Chief of Volume 20 of the Tulane Journal of International and Comparative Law and second-year student at Tulane Law School. 

             

            The first panelist to present was Professor Goebel, who has seen the EU evolve over the past thirty years, which enables him to have “an extraordinary historical perspective.”  Professor Goebel explained how the Court of Justice was intended to be an administrative review body rather than the “activist constitutional court” it has become.  “It is one of the most influential instruments for achieving market integration and substantive application of laws in the EU,” said Goebel.  Segueing to post-Maastricht, Goebel touched upon the system of qualified majority vote currently in place, which gives “more weight to the larger states . . . than the smaller states,” which, he noted, makes it a much more democratic body than the United States Senate, made up of two Senators per state regardless of size and influence.  He wrapped up with a discussion of the Treaty of Lisbon, which he said is significant for adding the European Council as an institutional power, and decides, among other things, when to hold intergovernmental conferences for amending a treaty. 

  

            Professor Nicola was next to present, and she began by describing herself as “romanticized in the local,” because of her Italian roots.  She argued that looking at the EU on a state-by-state, local level shows a unique perspective on governance, as opposed to just focusing on the EU as a great centralizing unit.  Professor Nicola believes that within the effort to centralize, the periphery is richly developed, leading to more decentralization.  Quoting a scholarly source, Professor Nicola explained that, “in every project of centralization in the creation of France we were at the same time creating the periphery, and creating the decentralizing moment,” so decentralization goes hand in hand with centralization.  She encouraged everyone to think about local government seriously, rather than jumping straight to the third level (i.e., the EU countries working together). 

  

            The Chair-Panelist, Professor Werhan, pressed both experts to, among other things, compare allocation of authority among EU member states with the mechanics of federalism in the United States of America.  Professor Goebel said it does not matter that the term “federal” is not used by the EU, “so long as you properly describe the degree to which power has shifted from the member state level to the EU level.” 

  

            Before taking questions from the audience, Ms. Brudy discussed an interesting policy called “Enhanced Cooperation,” where one-third of the EU member states can choose to work together at the EU level, without having to include every state.  She argued that this seems to “go against, in a way, what the EU is about because the whole idea is that a majority of the people agrees to a type of EU supranational law . . . and EU law is binding.”  Ms. Brudy likened this idea to a “test kitchen,” whereby states can innovate without having to get a majority to go along.  Professor Werhan informed the group that the American analogy is the “interstate compact,” which allows states to enter into regional agreements as long as Congress approves.  The panel ended with a lively debate on issues ranging from family law to whether Islamic law may be used in EU courts, and how the monetary union was the first example of enhanced cooperation, according to Professor Goebel. 

  

                                                                                   By, David R. Tawil 

 

Panel 4 - The EU as a Player in a Multipolar World   

The fourth panel of the symposium, comprised of Professors Lloyd Bonfield, Daniela Caruso, and Patrick Hugg, and lead by Junior Member Tara Rich, was titled “EU as a player in the multi-polar world.”  Professor Bonfield led the discussion by positing: in this multi-polar world, who speaks for Europe?  Recently, Catherine Ashton, the Vice President of the European Commission who was appointed as a High Representative of the European Union for Foreign Affairs and Security Policy, spoke in response to the political turmoil in Libya.  Professor Bonfield asked whether the heads of government of the Member States really speak for Europe, and whether Vice President Ashton has any support from the EU members.  He concluded his presentation by putting forth the wider question of whether Europe speaks with a single voice when it responds to both internal and foreign affairs.  

 

Professor Caruso took a different approach to the panel and discussed the figurative “rise and fall of the EU flag” in the American legal classroom.  She questioned what role EU law has had and will have in the legal education of American law students.  When EU law was a fresh and popular subject in the American legal classroom, its principles, including free-trade and non-discrimination, mirrored those of the Federalist Revolution that Justice Rehnquist had recently brought to the Supreme Court.  Presently, however, things have changed and professors have very little involvement in EU law.  The change is reflected by the current lack of law students’ interest in the subject matter.  Professor Caruso highlighted that there are important lessons to be learned from the European Union, for example that by studying the EU, students learn more about foreign legal systems because the best way to look at them is under the pressure of European organization.  Also, the European Union and its laws make the very practical point that everything is connected. 

 

Lastly, Professor Hugg concluded the panel by discussing that we study EU law to learn descriptively what is going on in Europe and as the European Union responds and reacts to its needs, it possesses strong potential in several areas of international leadership.  

                                                                                                                                By, Lisa Bonfield 

For more information on the symposium, please check our coming Volume 20, Issue 1, which will feature the papers presented at this event.     

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The United States' Evolving Approach to International Law 

Cosponsored by:
The Nonproliferation, Arms Control & Disarmament Interest Group of the American Society of International Law,
and
The Tulane Human Rights Law Society, andThe Tulane International Law Society   

The Tulane Journal of International and Comparative Law held a live symposium on March 19, 2010.  Entitled “Changing Course: The United States’ Evolving Approach to International Law,” the symposium analyzed areas of U.S. policy that were at odds with international law and are now more aligned with international treaties and norms. The day-long event consisted of three panels, each focusing on an area of US policy that is shaped by international law. 

  

 For more information on the symposium, please check our coming Volume 19, Issue 1, which will feature the papers presented at this event.   

 

 

 


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