The North American Free Trade Agreemetn: Looking at the Binational Panel System Through the Lens of Free Enterpresie Fund

By: John J. Garman and Matthew K. Bell

 

This paper examines the constitutionality of the binational panels of the North American Free Trade Agreement (“NAFTA”) under the United States Constitution. Part I provides an overview of the binational panel process. Part II outlines the process for challenging the constitutionality of binational panels and the obstacles that must be overcome. Part III discusses possible violations of the Due Process Clause. Part IV analyzes the constitutionality of binational panels under Article II of the United States Constitution. Part V examines the constitutional implications of Article III with respect to the absence of judicial review. Part VI is a case-by-case analysis of previous attempts to challenge the constitutionality of binational panels. The conclusion illustrates how binational panels may violate Article II, Article III, and the Due Process Clause of the 5th Amendment.

 

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Misuse and Abuse of Legal Argument by Analogy in Transjudicial Communication: The Case of Zaheeruddin v. State

By: Amjad Mahmood Khan

 

This article explores the risks and limits of transjudicial communication. In particular, I critique the scholarly contention that transjudicial communication can be built upon commonly accepted methods of legal reasoning. I argue that transnational courts do not uniformly understand or apply commonly accepted methods of legal reasoning, especially legal argument by analogy. As a result, transnational courts that utilize transjudicial communication can and do render specious, even destructive, judicial opinions. I analyze the case of Zaheeruddin v. State—a controversial decision by the Supreme Court of Pakistan that upheld the constitutionality of Pakistan’s antiblasphemy ordinances. The Supreme Court of Pakistan poorly analogized to numerous U.S. Supreme Court authorities to bolster and legitimize its deeply flawed decision.

 

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Tort Liabilities and Torts Law: The New Frontier of Chinese Legal Horizon

By: Mo Zhang

 

China did not have a single body of torts law until 2009. As a new piece of legislation in the country, the Torts Law of China, effective as of July 1, 2010, forms a comprehensive framework that regulates torts and provides a legal mechanism to govern liabilities and remedies. A product of the civil law tradition, common law practice and Chinese reality combined, adoption of the Torts Law is hailed in China as an important move toward a civil society that is ruled by law.

The Torts Law premises torts on the fault liability with a few exceptions where the non-fault liability is imposed. Structurally, the Torts Law is distinctive in that it stresses principles and rules of general application, and in the meantime prescribes peculiar tortfeasors and special torts that need to be dealt with differently. In substance, the Torts Law is ambitious because it intends to embrace not only traditional torts but also the newly developed area of torts. In many aspects, the Torts Law is also keen to maintain the Chinese characteristics.

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Cleaning Up the Mess: the Economic, Environmental, and Cultural Impact of U.S. Military Base Closures on Surrounding Communities

By: Elizabeth M. Myers

 

Today, many military bases have become financial burdens on the federal government, as the military’s needs and systems have changed drastically since the end of the Cold War.1 The federal government has discovered it can save a significant amount of money by shutting down unnecessary installations and shifting the work to ongoing bases.2 The federal government can also make money by selling the land of former military bases to surrounding communities or private companies.

 

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Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive?

By: Kristen A. Knapp

 

Enforcing discovery against companies located in foreign nations is not a new phenomenon. The U.S. Supreme Court took up the conflict between U.S. discovery rules and foreign non-disclosure law in a 1958 case.2 Despite more than fifty years to reach a settled jurisprudence regarding how to enforce U.S. law against foreign domiciled companies, there has yet to be a clear articulation of a standard applicable in all cases. Currently, there are two main sets of rules under which U.S. courts may enforce discovery laws against foreign companies, and if necessary impose sanctions for non-compliance: the Hague Convention and the U.S. Federal Rules of Civil Procedure. The trend of authority favors the use of the U.S. Federal Rules of Civil Procedure, but there remain some circumstances under which the Hague Convention is favored.

 

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The Rule of Law: Its History and Meaning in Common Law, Civil Law, and Latin American Judicial Systems

By: Nadia E. Nedzel

 

“Rule of law” is an expression both praised and ridiculed by adherents of opposite political philosophies, and it is a principle claimed as the lodestar for widely differing legal theories. As much as an ideality as an ideal, the words “rule of law” have served a wide range of purposes, stretching from political sloganeering to the protection of individual rights from the power of government.

 

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“To Remand, or Not to Remand”: Ventura’s Ordinary Remand Rule and the Evolving Jurisprudence of Futility

By: Patrick J. Glen

 

Presumably few federal appellate judges are confronted with the Danish prince’s existential angst: “To be, or not to be: that is the question. . . .”1 Nonetheless, a similar ambivalence may be present in the circumstance of judicial review of administrative agency decisions. No less eminent an authority than former Second Circuit Judge Henry Friendly expressed just such angst in the introduction to his 1969 Duke Law Journal article, in which he attempted to discern bright-line rules in the Supreme Court’s 1943 SEC v. Chenery2 decision: “Although when I began my labors, I had the hope of discovering a bright shaft of light that would furnish a sure guide to decision in every case, the grail has eluded me; indeed I have come to doubt that it exists.3 Determination when to reverse and remand a decision that an administrative agency had power to make, and sufficient evidence to support, is, I fear, perhaps more art than science.”4 The nature and scope of judicial review of administrative decisions has taken on increasing importance as the size of the administrative state has grown and the number of administrative adjudicators has multiplied. As one commentator has noted, “[j]udicial review of administrative agency decisions is one of the cornerstones of the modern administrative law system[,] . . . although the nature and scope of judicial review, and the authority of the courts to dispose of these matters reflect a variety of approaches. . . .”5 To a large degree, the question of whether and in what circumstances remand to the agency rather than a judicial decision in the first instance is required is still resolved with at least su-perficial reference to the Supreme Court’s Chenery decision. In that decision, the Court laid out the basic precepts of judicial review of administrative action. “If the action rests upon an administrative determination— an exercise of judgment in an area which Congress has entrusted to the agency—of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so.”6 However, “if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.”7 Thus, the Court gave voice to what would become the courts’ deferential stance to agency factual findings and discretionary determinations, and its continuing authority to review legal and constitutional claims de novo.

 

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Simplifying the Prophecy of Justiciability in Cases Concerning Foreign Affairs: A Political Act of State Question

By: Deborah Azar

 

Justiciability doctrines in the foreign affairs arena have been described as involving large elements of prophecy. First, this article will examine the justifications and application of the political question doctrine in cases involving foreign affairs. Second, this article will discuss the jus- tifications and application of the act of state and political question doc- trines. Third, this article will analyze whether the act of state doctrine can be encompassed within the political question doctrine. Fourth, this article will propose a framework that can be applied in cases involving political questions in foreign affairs.

 

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Evaluating South Africa’s Post-Apartheid Democratic Prospects Through the Lens of Economic Development Theory

By: Jonathan L. Marshfield

 

Political scientists have identified compelling correlations be- tween economic development and democratic stability. In general, the wealthier and more developed a country, the greater its chances of maintaining a long-term, stable democracy. This Article evaluates whether South Africa’s post-apartheid economic conditions are trend- ing towards conditions that generally correlate to stable democracies. It compares South Africa’s post-apartheid economic conditions to the empirical trends that development theorists have identified as correla- tive to democratic stability. This analysis is important because if South Africa’s post-apartheid economic conditions do not exhibit positive trends, this may suggest that despite the just end of apartheid, condi- tions are becoming progressively more difficult for South Africa to maintain a democratic government.

 

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It Takes Two to Tango, and to Mediate: Legal Cultural and Other Factors Influencing United States and Latin American Lawyers’ Resistance to Mediating Commercial Disputes

By: Don Peters

 

This article examines legal cultural and other factors influenc- ing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial ac- tors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adju- dicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods.

 

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