Constitutional Law Commons^™

Re-Thinking Trade And Human Rights, Andrew T. Lang

ExpressO

The last decade has seen the development of a burgeoning literature on the relationship between international trade and the protection of human rights, driven in part by a series of influential reports produced by the Office of the UN High Commissioner for Human Rights. Some human rights commentators have been heavily critical of the trade regime, pointing to a variety of ways in which obligations under international trade law purportedly undermine the ability of governments to fulfil their human rights obligations. Others see the potential for strong synergies between the two regimes, and argue that international trade can be a …

Is Ec Trade Policy Up To Par?: A Legal Analysis Over Time - Rome, Marrakesh, Amsterdam, Nice, And The Constitutional Treaty, Rafael Leal-Arcas

ExpressO

This article is an attempt to a thorough chronological analysis of the European Community’s (EC) existing law and policy in the field of international trade law since the beginning of the European Economic Community. It deals with the evolution of the EC’s common commercial policy competence through the years, starting with the European Coal and Steel Community (ECSC), moving on to the necessary changes brought by the World Trade Organization (WTO) Agreement, signed in Marrakesh in 1994, until the days of the European Union (EU) Constitutional Treaty, with a view to enabling the EC with a coherent trade policy in …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Global Copyright, Local Speech, Michael Dan Birnhack

ExpressO

Copyright is no longer a matter of "promoting the progress of science" in the words of the U.S. Constitution. It is now more than ever before a matter of trade. Furthermore, under the WTO's TRIPS Agreement, we now have a global copyright (G©) regime.

The globalization of copyright law destabilized previous balances. The shift to a trade environment requires us to reevaluate the previous balance. The concern explored in this article is that the old foundations will collapse under the heavy weight of global forces. The concern is that local culture, access to information, research and free speech in general, …

Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber

ExpressO

This paper will examine the Constitutional issues raised by the influx of state anti-outsourcing legislation using a recently enacted New Jersey statute. The New Jersey statute is very similar to, and contains many of the same features as, many other bills introduced in legislatures across the nation. Moreover, the political impetus for the introduction and enactment of the legislation reflects the struggle over the outsourcing issue that is occurring in communities nationwide.

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The Wto Constitution: Tertiary Rules For Intertwined Elephants, Joel P. Trachtman

ExpressO

Constitutions have many dimensions. These dimensions include at least the following:

• an economic constitution in the sense of a set of rules for exchange of value and authority,

• an interfunctional constitution that allows for the integration of various social values,

• a political constitution that reflects the cultural and democratic integrity of a group of people,

• a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules,

• a human rights constitution that limits the sphere of governmental authority, and

• a …

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Judicial Review And Global Federalism, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles

Law Faculty Publications

No abstract provided.

The Original Meaning Of The Commerce Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …

The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian

Articles

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …

Constitutional Change And International Government, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Globalization And Federalism In A Post-Printz World, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article uses the recent Supreme Court decision in Crosby v. National Foreign Trade Council as the vehicle for examining the way in which the U.S. constitutional law of federalism might be responding to globalization. Part II develops the argument that globalization as such has no strong implications for domestic constitutional law. The remainder of the Article examines the U.S. constitutional response to the aspect of globalization revealed in Crosby, and argues that the Court's decision in Crosby is in tension with its other federalism decisions. But, the Article argues, that tension arises not from the fact that Crosby arises …

Another Attack On The Fast Track, Constance Z. Wagner

All Faculty Scholarship

Although the Congressional fight over the North American Free Trade Agreement (NAFTA) may have ended when the NAFTA Implementation Act passed by a narrow margin, the controversy surrounding NAFTA has not. In Made in the USA Foundation v. United States, the United Steel Workers of American and others asserted that NAFTA was void because it had been approved as a congressional-executive agreement when it should have been approved as a treaty under Article II, Clause 2 of the U.S. constitution. The author discusses the constitutional law issue raised by the lawsuit, namely the validity of the long-standing U.S. practice of …

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …

Sovereignty By Subtraction: The Multilateral Agreement On Investment, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

The proposed Multilateral Agreement on Investment (MAl) represents a major step in the evolution of "sovereignty," which includes the power of a nation-state to govern without external controls. A panelist at the 1998 Cornell International Law journal Symposium introduced the MAl as an example of "multilateral sovereignty" to achieve commonly held goals of global economic integration. This perspective posits that the MAl is an exercise in sovereignty by subtraction, aiming to limit governing power rather than promote its joint exercise.

Its critics call the MAl a "slow motion coup d'etat," a "bill of rights for investors," a threat to sovereignty, …

Off The Precipice: Massachusetts Expands Its Foreign Policy Expedition From Burma To Indonesia, David R. Schmahmann, James Finch, Tia Chapman

Vanderbilt Journal of Transnational Law

This Article considers the wisdom and constitutionality of a proposed Massachusetts law penalizing companies that do business with Indonesia. In the March 1997 issue of the Vanderbilt Journal of Transnational Law, two of the authors expressed concerns about the constitutionality of state and local restrictions on business ties with Burma (Myanmar). This Article applies a similar analysis to conclude that the proposed legislation is an unconstitutional violation of the Supremacy Clause and the Foreign Commerce Clause. The authors also argue that the federal government has clearly preempted action by Massachusetts: first by providing aid to Indonesia under the generalized system …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

Comment On Guyora Binder, “The Slavery Of Emancipation”, Michael Les Benedict

Cardozo Law Review

When I first received Professor Binder's highly theoretical, speculative, and thought-provoking paper, I wondered whether I was the right person to comment upon it. Professor Binder has a philosophical turn of mind; he is at home in the world of Hegel. I am disoriented in territory more exotic than that of Locke. In the history department of the Ohio State University, I teach the course that introduces our graduate students to the philosophy of history. However, I have always considered that a cosmic practical jokeon my students more than me-cooked up by the shades of Hegel, Collingwood, and Croce.

International Trade Relations And The Separation Of Powers Under The United States Constitution, John Linarelli

Penn State International Law Review (1982 - 2011)

No abstract provided.

International Trade Relations And The Separation Of Powers Under The United States Constitution, John Linarelli

Scholarly Works

No abstract provided.

Comparative Analysis Of Concurrent Powers In The United States And In The European Community, Sandrine N. Darrouzet

LLM Theses and Essays

This thesis investigates the internal concurrent powers through tax and trade of the European Union with a comparative analysis to the American system and decision-making process.  The thesis starts with an analysis of the roots of concurrent powers in the United States and in Europe. Then, with the subjects of tax and trade, it will determine the nature of concurrent powers. The final part examines the possible solutions to limit the scope of concurrent powers. The thesis also includes a special analysis of Article 3B of the Treaty on European Union which focuses on limits of power conferred upon the …

Appointments Clause Problems In The Dispute Resolution Provisions Of The United States-Canada Free Trade Agreement, Alan B. Morrison

Washington and Lee Law Review

No abstract provided.

The Appointments Clause And International Dispute Settlement Mechanisms: A False Conflict, Wiliam J. Davey

Washington and Lee Law Review

No abstract provided.

Appointments With Disaster: The Unconstitutionality Of Binational Arbitral Review Under The United States-Canada Free Trade Agreement, Jim C. Chen

Washington and Lee Law Review

No abstract provided.

Judicial Review Of State Regulation Which Impacts Foreign Trade: A Second Look At South-Central Timber Development V. Wunnicke, York Moody Faulkner

BYU Law Review

No abstract provided.

The Toshiba Sanctions Provision: Its Constitutionality And Impact On Cocom, Spencer L. Kenner, Mark A. Russell

BYU Law Review

No abstract provided.