Law Commons^™

Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman

Northwestern Journal of International Law & Business

In taking on the controversial debate over the role of state attorneys general in antitrust enforcement, the article draws upon recent legal and historical scholarship on federalism to argue that globalization requires a paradigm change in concepts of U.S. federalism. While many assume that increasing international economic integration makes state participation in economic regulation with international implications inherently problematic, the article demonstrates that, to the contrary, states have an important role to play in the regulation of international business. States have a long history of challenging the federal government in a way that has promoted a robust national dialogue on …

Hearings, Mark Spottswood

Faculty Working Papers

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new …

Collateral Review Of Remand Orders: Reasserting The Supervisory Role Of The Supreme Court, James Pfander

Faculty Working Papers

Although some might consider the appellate review of remand orders as something of a jurisdictional backwater, recent developments suggest that the rules need attention. The Supreme Court has decided no fewer than four cases in the past few years and has failed to develop a persuasive framework. Indeed, one member of the Court, Justice Breyer, has invited "experts" to solve the problem.

In this essay, I suggest that the solution lies in the Court's own hands. Rather than proposing legislative or rulemaking solutions, I call on the Court to re-invigorate its supervisory powers and conduct direct review of district court …

Proportional Pragmatism: A Defense Of International Arbitration Agreements In The Face Of Asymmetrical Paternalism, Rusty O'Kane

Northwestern Journal of International Law & Business

With foreign direct investment's increasingly important role in the global market, a more comprehensive regulatory system has emerged to guide key participants. Bilateral investment treaties have developed as an essential piece of the emerging regulatory system. Bilateral investment treaties are "[international investment] agreements between two countries for the reciprocal encouragement, promotion and protection of investments in each other's territories by companies based in either country." These treaties have drastically affected the way foreign investors interact with host countries, especially in the area of dispute resolution. A distinctive feature of many BITs is that they provide for alternative dispute resolution procedures …