THE PRACTICE OF INTERNATIONAL TRADE LAW IN THE PUBLIC SECTOR
Eleanor Roberts Lewis
Chief Counsel for International Commerce
U.S. Department of Commerce

Some day as a young attorney you will have a difficult choice to make. Should you work for a private law firm where you will represent specific paying clients, where the hours are almost always long but the financial rewards are generally very high? Or should you enter public service where you will earn a more modest income but have the opportunity to serve over 275 million American citizens and enjoy a more balanced lifestyle?

After earning my J.D. at Georgetown University, I went to work as a staff attorney for the U.S. Department of Housing and Urban Development (HUD). I initially chose the public sector because of my interest in the public policy aspects of law and because I hoped the Federal government would provide a supportive environment for a mother with a newborn child. After two years at HUD I received a good offer from a private law firm and decided to try it out. I learned many important things during my three years in private practice including the discipline to focus on the needs of a particular client. But I missed being on the front lines of public policy issues. And I did not find law firms at that time to be very family friendly. So I returned to HUD, this time as head lawyer for the Government National Mortgage Association and the public housing finance program.

In 1982 I was offered the opportunity to set up a new legal office at the U.S. Department of Commerce to focus on the market access and transactional aspects of international trade and investment. Until then the existing international legal offices at Commerce concentrated primarily on the regulatory aspects of trade such as export controls and antidumping/countervailing duties. I hesitated to accept the position, having practiced only project finance and other areas of real estate law for eight years. I had studied international law academically but had never practiced in the field outside the finance context. "A woman's response" said my mentor at the time. He noted that women often assume they must be expert in a field before applying for or accepting a job while men generally assume they can learn on the job. Suggesting that any good lawyer could master any subject in a few months or even a few weeks, he advised that I buy some books on trade law and accept the position. I followed his advice, although it took more than a few months and a few books for me to become truly comfortable with such a major change in professional specialties.

It proved to be a worthwhile move. Since I began work at the Commerce Department, I have dealt almost daily with both interesting and important matters. Some of the legal problems and work environment issues in the public practice of trade law are similar to those found in private practice, but many are different in ways that may make a public sector career particularly appealing. This chapter will discuss specific examples of the substantive work, as well as personal considerations, involved in being an international trade lawyer in the public sector, concluding with a brief description of some Federal agencies that employ international trade lawyers.

WHY PRACTICE WHAT THEY TEACH?

Many of us now practicing international law took at least one course in college or law school on general international law, trade law or comparative law. As a student I realized that these subjects entailed an especially complex and even exotic mixture of legal and policy issues that were domestic, foreign and multinational in scope. The practice of trade law in the public sector more than lives up to the intellectual expectations engendered by the academic environment. It also offers possibilities for travel and exposure to diverse cultures that I had not explored in school. Consider these illustrative examples from my own career.

Trade Agreements. My most high profile and exciting work involves being part of interagency teams that negotiate, interpret and enforce trade and investment agreements with foreign governments. During the course of my career in trade law, I have worked on diverse, challenging assignments related to negotiation and implementation of the U.S.-Canada Free Trade Agreement and its successor, the North American Free Trade Agreement (NAFTA); the World Trade Organization (WTO) Agreements; the U.S.-Japan Automotive Agreement; the OECD Convention on Bribery; and bilateral investment treaties with such diverse countries as Poland, Tunisia and Argentina.

The goal of the NAFTA was the substantial elimination of trade and investment barriers between the United States, Canada, and Mexico in order to create a market with almost 400 million consumers, almost $7 trillion in annual output, and over $500 billion in annual trade. With approximately 1000 pages of legal text and 1000 pages of tariff schedules, much was riding on every NAFTA word and number. In addition to fairly common provisions on tariff and customs matters, the NAFTA for the first time covered in detail non-tariff issues such as trade in services, intellectual property rights, and investment as well as sanitary/phytosanitary measures (agricultural standards). Government lawyers played an important role in shaping the NAFTA that in turn strongly influenced the WTO negotiations underway at the same time. My work on NAFTA was not limited to technical legal issues; it entailed contributions to policy development and representation of diverse U.S. agency and private sector interests.

The relatively new OECD Convention on Bribery also will have an important impact on U.S. commercial interests. It has been estimated that U.S. firms have been losing many billions of dollars a year because their foreign competitors pay bribes to win foreign government business. Since 1977 U.S. firms have been prohibited from making such payments by the Foreign Corrupt Practices Act. This Convention, the product of almost eight years of discussion and negotiations, internationalizes the basic principle of the FCPA: no person may offer, promise or give any money or other advantage to a foreign public official in order to obtain or retain business. In this Convention, for which my office provided critical drafting and negotiating support, the governments of other developed countries agree to adopt the same high, anti-corruption standard to which U.S. law holds U.S. companies in their international transactions.

Trade Related Legislation, Dispute Settlement and Litigation. The negotiation of the NAFTA, WTO and numerous other trade and investment agreements requires extensive involvement by government lawyers. In addition, government lawyers play an essential role in the development and drafting of related legislation. For example, the bill drafted by the Executive Branch to implement the NAFTA was about 450 pages long and was accompanied by a 260 page "statement of administrative action" to explain the provisions of the agreement and legislation. Although lawyers from the U. S. Trade Representative's Office take the lead in drafting such legislative documents (as they generally do in trade negotiations), lawyers from my office and several other agencies are an essential part of the interagency team that produces the final product.

After trade agreements become effective, government lawyers continue to play an important role in assessing whether our foreign trading partners are complying with their obligations. When it seems they are not, we assist in consultations with the foreign governments to encourage compliance. If our consultations are unsuccessful, we advise on the application of domestic trade laws as well as assist USTR with the dispute settlement cases that may be brought under NAFTA and WTO.

Trade agreements are sometimes challenged in court, such as the case on the constitutionality of NAFTA. Made in the USA Foundation v. U.S., 56 F. Supp. 2d 1226 (N.D. Ala. 1999), appeal dismissed, 242 F.3d 1300 (11th Cir. Ala. 2001); cert. denied, United Steelworkers v. United States, 122 S. Ct. 613 (2001).  Interesting issues also arise about appropriate government roles in the commercial and foreign policy arenas. For example, in one of our cases the Supreme Court decided that the state of Massachusetts did not have the right to institute unilateral economic sanctions against Burma when the U.S. federal government had already developed an elaborate framework to address human rights abuses by that country. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). Although the Justice Department is responsible for filing the briefs and making the oral arguments in such cases, lawyers from Commerce and other affected U.S. agencies are extensively involved in the process.

Advice and Advocacy for U.S. Exporters and Investors. The daily "bread and butter" of some attorneys in my office is counseling U.S. firms and their attorneys about questions or problems that arise in foreign business transactions. Issues range from formation of contracts and hiring of agents/distributors to protection of intellectual property rights and settlement of commercial disputes. The U.S. government also has an aggressive program to support U.S. firms bidding for foreign government contracts. The international government procurement market amounts to hundreds of billions of dollars a year. Many interesting and often complex legal and policy issues arise with respect to which companies and products the U.S. government should support and how that support should be offered.

Technical Assistance for Foreign Countries. An exciting and gratifying role for the lawyers at Commerce is to provide technical legal assistance to foreign governments trying to establish a market economy and seeking advice on how to develop the necessary underlying commercial legal structure. Generally, these countries are converting from a communist or other centralized economic system. But sometimes they are recovering from domestic turmoil. Examples of countries we have assisted include Russia, China, South Africa and most of the countries of Eastern Europe.

Equal and Better Opportunities. The practice of international trade law with the U.S. Government virtually guarantees inherently interesting and important assignments. It also offers other advantages. Because government offices almost always have more work than they can handle, young lawyers typically are given more responsibility earlier than they ordinarily would have it in a law firm. A government attorney right out of law school can expect in the first year to have direct client contact and a relatively independent caseload as well as opportunities to represent his or her office in inter-agency meetings. Within two years of employment most attorneys in my office have participated in negotiations with foreign government officials.

In addition, the Federal government takes seriously the legal requirement and public policy goal that women, minorities and other disadvantaged persons be given an equal opportunity to succeed . For example, although women have comprised over 40% of law school classes for many years, only 15% of the partners in private law firms are women. By contrast, 25% of all government GS 15 level attorneys (equivalent in experience and stature to partners) are women. And almost as high a percentage of government Senior Executive Service lawyers are women. (SES legal positions are similar to senior or managing partners in law firms.) The statistics for minority lawyers similarly reflect the more welcoming and upwardly mobile environment of the public sector.

BALANCING FAMILY AND WORK: THE LIFESTYLE ISSUE

What does all this talk about balancing family and work mean in real life? Start with the morning. Instead of just getting yourself up, dressed, fed and out the door for your daily commute, it may be you plus one or two or more. You may be caring for young children, an elderly live-in parent or a sick family member who must be prepared for their daily routine as well. This usually entails getting them up, dressed and fed before turning them over to a daytime care giver. Whatever the scenario, you must build an extra hour or more into morning activities before turning your attention to work once you finally reach your desk. Now fast forward through your day and picture the evening ritual of racing to leave the office to pick up your dependents from the day care provider . Your colleagues have one more question, your boss needs one more item researched, you download the memo you have been working on to a floppy disk, promising yourself you will return to it once the rest of the family is in bed. You answer the phone one last time and fly out of the office, late again.

Congress and the Executive Branch have become increasingly sensitized to the inherent stresses of balancing work and family. A major driving force behind this sensitization is the increasing number of women who choose to or must work outside the home while continuing to shoulder major family responsibilities. By 1998 more than 40% of women caring for children under three years old were working outside the home and almost 80% of women with children from six to seventeen were in the labor force.

Another driving force is the realization by men that spending time actively assisting in the day-to-day activities of child rearing or caring for elderly or sick family members is important and may even be a necessity when both parents work. All of the male attorneys in my office have excellent credentials and most have had jobs with first-rate private law firms. However, these bright, dedicated men as well as the exceptional women attorneys in my office have chosen public service not only for its interesting, important work, but also for the more balanced lifestyle it provides compared to private practice.

A balanced lifestyle does not always mean shorter hours. When a major project entails demanding deadlines, a government attorney can work as long and travel as much as any private sector attorney. However, in a government legal office there will rarely be the pressure to work late into the night or show up on the weekends just to compete and impress. Fortunately the Federal government has implemented a number of programs to help employees balance family and professional responsibilities.

Flexible Work Schedules. In 1994, the President issued a memorandum to Executive Agencies directing them to establish programs to support flexible, family-friendly work arrangements. Since then, Federal employees have been able to choose part-time employment, job sharing arrangements, telecommuting, and alternative work schedules permitting flexible hours and compressed work days. Government studies show that these flexible workplace programs improve recruitment, lower absenteeism, and increase morale and retention of good employees.

Child Care. As of 1999, over 110 Federal child care centers were operating in or near Federal buildings in over 30 states and the District of Columbia. The hours of operation at these centers vary but almost 90% are open 11 or more hours per day. Over 90% also offer infant care, generally beginning at 3 months of age. All centers located in government-owned space must be accredited by the National Association for the Education of Young Children (NAEYC).

Federal child care programs are attractive for many working parents who can easily drop off and pick up children. In addition, they may be able to see their children during the work day. Most centers have an open drop-in policy affording mothers the important opportunity to continue nursing after returning to work or allowing parents to spend their lunchtime or other free moments of the day with their children. This makes returning to work after maternity leave easier and provides some brief "quality time" with children for either parent.

Medical and Leave Benefits. The Federal Government offers employees and their families an excellent selection of health benefit plans that continue coverage through retirement. In addition, in 1993 Congress passed the Family and Medical Leave Act (FMLA). The FMLA allows employees to take up to twelve weeks of unpaid leave, without fear of losing their jobs, to care for themselves while ill or a newborn, adopted child, or sick family member. In 1999, recognizing that many employees could not take the needed leave because they could not afford to go without pay for that time period, the President issued a memorandum allowing Federal employees to use up to twelve weeks of accrued sick leave each year to care for family members suffering from a serious health condition.

IT'S NOT ALL ROSES: THE DISADVANTAGES OF FEDERAL EMPLOYMENT

One of the most obvious disadvantages of working in the public sector is the salaries, particularly when compared to private practice. As of summer 2000, large law firms in large cities were paying top lawyers at least two or three times the salaries paid to comparable government positions. In-house corporate law departments and smaller or less urban law firms have salaries closer to government pay, but still generally higher. This is not just an issue for those who want to become rich. Many lawyers have school debts and/or family responsibilities that put pressure on them to bring home more income than a government salary provides.

There are other disadvantages related to the work environment. Many government legal offices do not have enough competent paralegal and clerical support. In my office I have only one paralegal and two secretaries to support thirteen lawyers, a ratio that might be considered unprofessional in private practice. Fortunately, technology increasingly mitigates the impact of sparse clerical support. Government office spaces are generally smaller and less attractively furnished than those in the private sector, and lawyers are more likely to have to share space. Office equipment such as computers may not be the most up-to-date and may be in limited supply. Generally government travel rules require that transportation and accommodations expenses conform to a very tight budget, even on long difficult trips or extended assignments away from the office. And of course, the government provides none of the special benefits found in the private sector such as payment of bar association or club dues.

Unfortunately, the myth that government employees are incompetent or lazy may taint even the most professional and dedicated of government lawyers. This can make it hard to move into the private sector from a government job. Strict government ethics rules may limit mobility as well, at least for a certain time period. However, for many lawyers such disadvantages do not outweigh the advantages of public sector employment. And in fact, the specialized and cutting edge experience that public sector international trade law attorneys acquire generally adds to their later marketability in the private sector.

OPPORTUNITIES IN THE FEDERAL GOVERNMENT

Department of Commerce: The Department of Commerce is probably the largest single employer of international trade attorneys in the United States. Of the several hundred attorneys at Commerce, about100 throughout the Department focus on international trade-related issues including foreign market access and development, trade agreement compliance, foreign investment, export licensing, antidumping duties, countervailing duties, intellectual property rights, product standards, technology, telecommunications, environment and fisheries. A comprehensive description of the Commerce legal offices can be located at http://www.ogc.doc.gov.

Office of the United States Trade Representative (USTR): USTR is part of the Executive Office of the President. Approximately 20 lawyers at USTR provide advice on developing and coordinating U.S. international trade and investment policy, negotiating agreements with other countries on these matters, resolving disputes under these agreements and handling related legislative initiatives. See http://www.ustr.gov.

Department of Agriculture: Agriculture has many overseas programs involving development of foreign markets for agricultural products and negotiation of international agricultural trade agreements. The Department's international lawyers provide legal advice to Agriculture officials on all these topics and work frequently with USTR . See http://www.usda.gov.

Department of State: The State Department's Office of Legal Advisor employs about 150 attorneys who provide advice on international legal issues. Most of these lawyers work on public international law, including foreign policy and national security matters, but some State Department lawyers specialize in trade and private international law and work frequently with Commerce and USTR. See http://www.state.gov.

United States Agency for International Development (USAID): USAID lawyers provide advice on foreign assistance and humanitarian aid programs. See http://www.usaid.gov.

Department of the Treasury: A number of lawyers at the Treasury Department provide legal advice on matters relating to international financial/monetary affairs including international debt and taxation matters as well as customs, trade and investment issues. See http://www.treas.gov.

Overseas Private Investment Corporation (OPIC): OPIC lawyers work on programs that provide loans, loan guarantees and political risk insurance for investment projects in developing and transitional economies. See http://www.opic.gov.

Export-Import Bank of the United States (EXIM): EXIM lawyers advise on programs providing loans, loan guarantees, and export credit insurance to promote U.S. exports. See http://www.exim.gov.

The U.S. International Trade Commission (ITC): ITC lawyers support their agency's work as an independent, quasi-judicial federal agency that provides analytical trade expertise to both the legislative and executive branches of government, determines the impact of imports on U.S. industries, and directs actions against certain unfair trade practices, such as patent, trademark, and copyright infringement. See http://www.usitc.gov.

There are many other Federal departments and independent agencies that hire lawyers who work on international aspects of their programs including international trade or investment matters. A sample of these opportunities is listed below.

Department of Justice: The Justice Department has several offices employing international attorneys with such varying specialties such as immigration law, foreign claims settlement, antitrust law, and other domestic criminal laws and federal programs with international implications. See http://www.usdoj.gov.

Environmental Protection Agency (EPA): The International Environmental Law Office in EPA's Office of General Counsel provides legal services in connection with the international aspects of EPA's environmental programs and also participates in the negotiation of international trade and investment agreements to ensure that environmental concerns are taken into account. See http://www.epa.gov.

Department of Labor: Certain international initiatives at the Department of Labor require legal advice. Labor lawyers often participate in negotiating international trade and investment agreements, particularly when immigration and worker rights are at issue. See http://www.dol.gov.

Food and Drug Administration (FDA): FDA lawyers engage in a number of international activities including the preparation of international agreements on product standards and scientific studies. See http://www.fda.gov.

The opportunities described above are only superficial summaries of the important work that awaits someone who practices international trade law in the public sector. When this work is joined with the balanced lifestyle generally possible in government employment, it makes for an exciting combination that should be considered by every young lawyer or law student interested in international law.

 

 

I would like to thank Allyson L. Senie, a former Senior Counsel at the U.S. Department of Commerce, for her substantial assistance in the preparation of this paper, particularly the section on lifestyle issues. I would also like to thank Pamela Jessen, a former paralegal at the Department of Commerce, for her work on the summaries of international legal opportunities in Federal agencies.  This paper was originally written in 2001, and the information in it is accurate as of that date.  Of course, the views expressed in this paper are my own and not those of any other person or U.S. Government agency.

 

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