Solid rock of US constitution stands in the way of EU-US free trade talks.
History was inescapable during the American Bar Association’s annual meeting in Boston at the beginning of August.
I went on what was billed as a legal walk through the city, sponsored by a committee of the Section of International Law, but it turned out to be a tour of British colonial tyranny. We took in Old North Church, where Paul Revere proposed the hanging of two lanterns to warn of the route taken by British troops (‘One if by land, and two if by sea’); the harbour where the famous tea was dumped; the balcony where the Declaration of Independence was first read to the city’s citizens, and the street where the Boston Massacre took place; and, of more recent vintage, a memorial to victims of the Irish potato famine.
Earlier in the conference, we European delegates were given a crash course in the US constitution, as if we were participating in the debates in Philadelphia at the Constitutional Convention in 1787, when the Founding Fathers discussed the shape of the country. The back-and-forth took place within the context of the free trade negotiations between the US and EU, about which I wrote a fortnight ago. In advance of a private negotiation between the American Bar Association (ABA) and Council of Bars and Law Societies of Europe (CCBE), there was a public session where each bloc put its views. This allows me to give you an insight into the arguments, without breaching the confidentiality of the negotiating room. In summary, the points made by each side went like this:
Europe: We have put in a request for European lawyers to be granted certain rights of practice in all states of the USA.
America: Forget it, there will be no national response. Lawyers are regulated by the individual states, and the federal government has no power to bind the individual states.
Europe: But in the EU, which is composed of 28 sovereign countries, the EU’s agreed position on legal services will finally bind each of those sovereign countries. Why cannot the US manage that within the borders of a single sovereign country?
America: There are 200 years of history behind our position, giving the states their right to regulate certain matters, including legal services.
Europe: There are 2,000 years of history behind the EU, including wars and empires, and yet the final position of the EU will be reliably implemented, whereas that of the US government will be worthless if the states oppose it.
America: You have finally understood our constitution.
Europe: That is a little aggravating, you know.
Somehow we are going to have to find a way around this impasse. In the modern world, we have moved beyond suggestions on a postcard. So, positively worded proposals below are welcome. Of course, the ABA says that we can always come to an agreement state by state, but the resources required for doing that - 50 states, one after the other - are well beyond our means. Or, they say, we can choose a state which we would like to see opened wider, and they will assist with negotiations with that state. But we want all states. It is impossible to predict which state will become economically (or otherwise) important to the client of a European lawyer.
Meanwhile, we have agreed to continue discussions in a variety of ways. For a start, it would be good to have common information on the way that foreign lawyers can practise in each other’s jurisdictions. The US has a very useful and up-to-date map showing states coloured yellow and white (with interesting symbols juxtaposed), from which you can glean to what extent foreign lawyers can practise in those states. (‘Too much white!’ says Europe.) The EU has a chart coloured red and green, which shows different information from the same general field (‘Too much red!’ says America). We will see whether we can come up with a common chart which compares like with like. The CCBE will in any case consider how to take matters forward after the discussions in Boston.
We will meet, we will discuss, we will make progress. But the solid rock of the US constitution stands in our way until someone with ingenuity finds a way around those 200 years of constitutional history.