Regulation Of Commerce Research Articles

Beyond Internet Universalism: A Framework for Addressing Cross-Border Internet Policy

The Internet is a global network that is fundamental to commerce, communication, and culture. The ability to use the Internet to purchase products and services from halfway around the world, to talk to friends and strangers in other countries, and to share and discover new ideas, is what has made the Internet the defining technology of the 21st century. But the same capabilities that make the Internet the incredible powerhouse that contributes trillions of dollars annually to the global economy — the ability to transfer data seamlessly across geographic borders — has exacerbated the international conflicts that arise between nations with different laws and values. Even though the importance of the Internet to the global economy and society continues to grow each day, collectively nations have made little substantive progress in creating a framework for resolving the many conflicts over Internet policy that inevitably occur between sovereign nations. These conflicts arise over a myriad of issues, such as free speech, intellectual property, privacy, cybercrime, consumer protection, taxation, commerce regulation, and others. To date, despite many attempts, no framework has been successful at providing a practical and widely-accepted model for policymakers to resolve cross-border Internet policy conflicts in ways that respect both the global nature of the Internet and national laws and norms. One reason for the lack of progress is that different nations have different sets of values and priorities, and attempts at resolving policy disputes inevitably falter because the various parties lack a common basis for dialogue. Another reason is that many proposed frameworks tend to apply a particular nation’s worldview on the rest of the world, such as promoting democracy and freedom of expression (as in the case of the United States) or maintaining political control (as in the case of nations like China and Russia). But despite their appeal (e.g., they would be relatively easy to administer if everyone would just agree to one universal framework), such frameworks simply cannot work because nations have significantly different cultural values, policy priorities, and legal systems. It is highly unlikely Europe will agree to a U.S. privacy framework (or that the United States will agree to an EU privacy framework), or that Saudi Arabia will agree to U.S. free speech framework, especially when it comes to Internet pornography. But the alternative, a Balkanized, fragmented global Internet that gives nations the right to act on the Internet with impunity cannot be the answer either. What is needed is a framework that allows nations the right to customize Internet policy to their own national needs and rules, while at the same time constraining those rights in ways that enable global Internet commerce and digital free trade while also preserving the underlying global Internet architecture, like the global domain name system. While nations will not always agree unanimously on specific policy proposals, appropriate solutions, or even the relevant evidence, a common framework of understanding cross-border Internet policy issues will allow for healthier Internet policy debates, better cooperation and coordination between nations, and fewer policy conflicts. This report explores the nature of cross-border Internet policy conflicts and provides a sample of the types of conflicts that have been seen in recent years. It also discusses the limitations of existing Internet policy frameworks, offers an alternative perspective and outlines a specific set of rules that should be used for evaluating cross-border Internet policy conflicts. Finally, it operationalizes this framework using various examples to show the method in action.

Federalism and Phantom Economic Rights in NFIB v. Sebelius

Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. Chief Justice Roberts and the four joint dissenters endorsed the novel limiting principle advanced by the Act’s challengers, distinguishing between economic “activity,” which Congress can regulate, and “inactivity,” which it cannot. Because the commerce power extends only to “existing commercial activity,” and because the uninsured were “inactive” in the market for health care, they reasoned, the MCP was not a regulation of commerce within the meaning of the Constitution. Critically, supporters of the activity/inactivity distinction insisted that it was an intrinsic constraint on congressional authority anchored in the text of Article I and the structural principle of federalism, rather than an “affirmative” prohibition rooted in a constitutional liberty interest. This Article argues that the neat dichotomy drawn by the Chief Justice and joint dissenters between intrinsic and rights-based constraints on legislative authority is illusory, and that it obscures both the underlying logic and broader implications of the activity/inactivity distinction. In fact, that distinction is rooted less in the constitutional enumeration of powers or federalism than in a concern about individual liberty. Even in the absence of a formal constitutional “right” to serve as a doctrinal vehicle, the Justices’ defense of economic liberty operates analogously to the substantive due process right to “liberty of contract” during the Lochner era — as a trigger for heightened scrutiny of legislative means and ends. Current scholarship addressing the role of individual liberty in NFIB v. Sebelius tends to deploy Lochner as a convenient rhetorical touchstone, to lend an air of illicitness or subterfuge to the majority’s Commerce Clause analysis. This Article argues that the Lochner-era substantive due process cases are both more nuanced and more instructive than judges and many scholars have realized. They illustrate, in particular, that constraints on legislative authority that are rooted in individual liberty and constraints on legislative authority that are rooted in enumerated powers and federalism can and do operate in dynamic relationship to one another. Reading NFIB v. Sebelius through this historical lens better equips us to interrogate the role that economic liberty plays in the majority’s Commerce Clause analysis, and provides an important alternative analytical framework to the structure/rights dichotomy advanced by the Chief Justice and joint dissenters. The activity/inactivity distinction not only portends a constitutionally dim future for federal purchase mandates, but may also herald more far-reaching restrictions on congressional interference with economic liberty, in which individual sovereignty assumes a place alongside state sovereignty in the Court’s federalism.

Political Organization in the Pskov Republic: the Prince, the Veche and Sovereignty

The article analyzes the socio-political organization of the Pskov Veche republic in the 13th–15th centuries, particularly the changes in personnel and in competences of the Pskov princes, the authority and the officials of the princely administration. The article shows the evolution of the sotnia (a hundred unit) organization from the princely one into the republican one. The research reveals Pskov’s considerable differences from Novgorod in terms of regulation of commerce and defines the function of the rank-and-file traders’ elder in the system of the republican power. The author argues that the Pskov veche functioned as a state institution that had been formed in the course of Pskov’s fight for independence in the 13th century. The fact of adopting the documents of taxpaying at the veche assembly reveals the fully institutionalized character of governmental bodies of the Pskov republic. By drawing upon H. J. Berman’s argument of independence within European cities of the 11th–12th centuries, this article contributes to the discussion of Pskov’s independence by outlining the main criteria of Pskov’s sovereignty. Pskov had a right to issue and supplement laws; the Pskov Judicial Charter arose out of the princes’ local charters and was further edited at the veche assembly. Pskov set its own taxes and the veche was empowered to free separate groups of landowners from paying taxes. The rights to military mobilization, to the declaration of war and to making peace, which were under the complete jurisdiction of the republic, undoubtedly demonstrates the sovereignty of Pskov. Finally, the sovereignty of Pskov was manifested in the symbols of stamps and coins that were used in the Pskov republic. All these facts taken together demonstrate the feasibility of applying the medieval European cities’ criteria of sovereignty to the Pskov socio-political realties.

Borders, Trade, and Politics: Exchange between the United States and Mexican Cattle Industries, 1870–1947

Abstract This article analyzes the livestock exchange between the United States and Mexico, beginning with the initial surge in regular trade in the 1870s until its interruption caused by the outbreaks of foot-and-mouth disease in 1947. Since the final two decades of the nineteenth century, cattle raising in both countries became increasingly intertwined through commerce. Though this trade was clearly international, as it entailed crossing a political border between nations, we argue that it was also an interregional commerce between contiguous, similar exporting bases, those of the southwestern United States and northern Mexico. However, the weight of politics and the legal border never ceased to make their presence felt and, indeed, were intensely manifested in the sphere of exchange. This particular branch of commerce was subject not only to numerous and repeated restrictive measures both related and unrelated to tariffs, but also to extraordinary political circumstances like the Mexican Revolution and the two World Wars. Our purpose is to reconstruct the interactions among resource endowments, commerce regulations, and supply and demand, as well as the actors and institutions that shaped the conditions of the transborder exchange. Such conditions allowed for continuity in livestock trading amid changing circumstances.

The Supreme Court's Historic Ruling on the Affordable Care Act

Chief Justice Roberts confounded predictions, upholding the individual mandate (that requires most individuals to pay an annual tax if they do not have health insurance by 2014) based on Congress’ taxing power. Congress’ power to “lay and collect taxes” for the common defense and welfare provides an independent source of federal authority. Although the ACA explicitly called the levy a “penalty,” the chief justice preferred a functional definition that did not rely on a label. Congress imposed a tax as the only sanction for failing to buy insurance, which is calculated and collected by the Internal Revenue Service (IRS). “That is sufficient to sustain it” under the taxing power. The tax, moreover, is not overly punitive, so individuals have a realistic choice about whether to purchase insurance or to remain uninsured. The court’s decision supports taxation as a public health tool. While affording Congress financial resources, taxes also influence health-promoting activities. Tobacco taxes, for example, discourage smoking, rather than simply raise revenue. The Commerce Power. Beyond its health policy significance, the court’s ruling limits federal power, while retaining state authority. The Constitution grants Congress limited or “enumerated” powers, while the Tenth Amendment reaffirms that “powers not delegated to the US . . . are reserved to the States.” The court said the commerce power— Congress’ constitutional authority to regulate interstate and foreign commerce—could not support the mandate. Justice Roberts reasoned that the mandate does not regulate commerce, but compels individuals to purchase a product. “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Reflecting the well-known broccoli analogy, Justice Roberts warned that the mandate was tantamount to permitting government to “address the diet problem by ordering everyone to buy vegetables.” Health insurance, however, is different because if healthy individuals refuse to buy it, they impose costs on society. The same cannot be said about buying vegetables or joining a gym. The mandate, moreover, does not compel commerce, but simply regulates the manner and timing of commerce. One day virtually everyone will require medical care, and someone must pay. “Free riders” reduce the insurance pool and impose costs ($62 billion in 2009) through higher taxes and insurance premiums. Thus, for only the third time since 1937, the court said Congress exceeded its commerce authority. In the previous 2 cases, the court ruled that Congress lacked the power to make gun possession within a school zone a federal offense, and to create a private civil remedy for women who had been subjected to violence. Both cases entailed purely local, noneconomic activities. Health care, however, represents 17% of the gross domestic product, with products (eg, medical records, pharmaceuticals, and insurance claims) traveling nationally and globally—clearly a regulation of commerce. The ACA’s Economic Viability. The mandate is integral to 2 pivotal, highly popular reforms: “guaranteed-issue” (insurers must cover all applicants) and “community-rating” (insurers cannot charge higher premiums based on health status). The mandate was designed to ensure the act’s economic sustainability. Without it, individuals would have an incentive to delay buying health insurance until they became ill. The critical question is whether a small tax will encourage healthy individuals to purchase health insurance. Not

Trade and Investment Relations between the European Union and Australia: For a Bilateral Economic Integration Agreement

The European Union (EU) is Australia's largest economic partner. It has been so for more than twenty-five years. Yet, the EU remains the only major trading and investment partner with which Australia does not have an Economic Integration Agreement, either in force or under negotiation. This article analyses the legal and policy issues that affect their trade and investment relations. Despite the existence of an EU-Australia Partnership Framework, a declaration in the process of revision into an agreement, the article considers that attention diversion from larger trading and investment partners, for the EU, and opposition to the distortive effects of the Common Agricultural Policy (CAP), for Australia, are the two main reasons for the low priority that each party attaches to bilateral trade and investment liberalization with the other. Nonetheless, an Economic Integration Agreement is, it argues, a mutually beneficial strategy: there remain duties and other restrictive regulations of commerce on trade between the EU and Australia that are amenable to bilateral elimination in the interest of further trade creation without the subsequent potential for any significant trade diversion. This article, aware of the difficulty of compromise over agriculture, makes a flexible and pragmatic call for a bilateral agreement on trade in services and trade-related investment measures. Services trade and investment are not sensitive areas for either party and an agreement to facilitate them would duly recognize the EU as Australia's largest partner for trade in services and its largest source and destination of foreign direct investment. It concludes that barrier reductions, if not their elimination altogether, in these two non-sensitive areas are likely to make up a significant proportion of the likely benefits of a comprehensive agreement. Their delay (or even loss) might outweigh the possible benefits from barrier reductions to sensitive sectors. Agriculture and other sensitive sectors that require further negotiation over a longer period of time could be the subject of built-in agendas.

Agriculture in the Canada-EU Economic and Trade Agreement

According to article 24 of the General Agreement on Tariffs and Trade (GATT), preferential arrangements (custom unions) and free areas are allowed by the World Trade Organization (WTO). The GATT requires that these agreements cover all and that existing external tariffs should not be raised by the countries concluding free agreements. Article 24 of GATT stipulates that:A free-trade area shall be understood to mean a group of two or more customs territories in which the duties and other restrictive regulations of commerce.. .are eliminated on all the between the constituent territories in products originating in such territories.1Unfortunately, the prescriptions of article 24 requiring all to be covered by a free area have never been enforced, and in fact, what substantially all trade means has never been defined.2 As a result, many free agreements have often excluded sensitive sectors like agriculture but those agreements have still been accepted by the GATT With an eye to article 24, Canada's chief negotiator for the Canada-EU agreement, Steve Verheul, has stated that we have agreed from the start everything is on the table.3 Thus, one major objective of this article is to assess the major challenges that the Canada-EU negotiators will face in tackling the entrenched agricultural barriers that exist on both sides of the Atlantic.In October 2008, Prime Minister Stephen Harper of Canada and President Nicolas Sarkozy of France confirmed during the Canada-EU summit that Canada and the EU would explore the possibility ofa free agreement. A few months later, in May 2009, the launch of the negotiations for a comprehensive economic and agreement (CETA) was announced. The negotiations are expected to take two and a half years to complete. The first round of talks was held in October 2009, followed by further discussions in January, April, July, and October 2010, and January, April, and July 2011. After seven rounds of negotiations, Foreign Affairs and International Trade Canada indicated that significant progress had been achieved in several sectors, such as goods, services, investment, and government procurement, and that the electronic commerce chapter had been dosed.4 Less progress had been made on other areas, including agriculture.In October 2008, Canada and the EU released a joint study, Assessing the costs and benefits ofa closer EU-Canada economic partnership, which outlines the economic benefits that could arise from closer economic integration, namely that GDP in Europe would increase by 0.08 percent and in Canada by 0.77 percent.5 This study is the source of the estimated $12 billion benefit to Canada that is often mentioned in news reports. Canada and the EU have agreed that the major areas for negotiation are in goods and services, investment, government procurement, regulatory cooperation, intellectual property, temporary entry of business persons, competition policy, labour, and the environment.6 The results of these types of economic-impact studies should be interpreted with caution as the assessments are completed in isolation from all other factors and subject to important assumptions. For example, one of the basic assumptions of this study is that Doha round of WTO negotiations would be completed and successful. Also, the study was completed before the global financial and economic crises. Thus it provides only an indication of possible impacts on the participating countries, subject to different assumptions and no change in the external factors.The attempt to create closer economic cooperation between Canada and the EU has been given a boost by three factors. First is the glacial pace of the Doha development agenda at the WTO. The long and inconclusive multilateral negotiations have resulted in an increased interest in regional agreements. Clearly, if the Doha round had been concluded successfully, the CETA negotiations on agriculture would have been easier: export subsidies in agriculture would have been eliminated; sensitive food products largely exempt from liberalization would have been clearly identified; and initial tariff levels would have been lower. …

Cloud Computing in the EU Policy Sphere

Cloud computing is a new development that is based on the premise that data and applications are stored centrally and can be accessed through the Internet. Our Article sets up a broad analysis of how the emergence of clouds relates to European law. We single out European competition law, network regulation, and electronic commerce regulation, which we relate to the main challenges for the further development of cloud services in Europe: interoperability and data portability between clouds; issues relating to vertical integration between clouds and Internet Service Providers; and potential problems for clouds to operate on the European Internal Market. We find that these issues are not adequately addressed across the legal frameworks that we analyze, and argue for further research into how to better facilitate innovative convergent services such as cloud computing through European policy- especially in light of the ambitious digital agenda that the European Commission has set out.

Which WTO Rules Can a PTA Lawfully Breach? Completing the Analysis in Brazil – Tyres

The proliferation of preferential trade agreements (PTAs) has given rise to possible legal conflicts between PTAs and WTO rules. WTO jurisprudence on the PTA exception in GATT Article XXIV remains scant. A recent dispute concerning Brazilian measures on retreaded tyres in the context of MERCOSUR was the first WTO case in which an environmental and health measure was intertwined with an Article XXIV defence. While the Appellate Body resolved some important aspects of the relationship between PTAs and WTO rules in this case, the operation of Article XXIV itself was not clarified. This article seeks to complete the analysis on Article XXIV in Brazil – Tyres. It considers whether Brazil’s import ban could be justified under Article XXIV, addressing both whether MERCOSUR meets the procedural and substantive conditions laid out in the article and whether Article XXIV is an applicable defence to the measure at issue. Reconciling the panel’s reasoning in US – Line Pipe with the necessity test developed by the Appellate Body in Turkey – Textiles, this article suggests that Article XXIV can be interpreted as excusing only those breaches of MFN that are necessary to establish a PTA under Article XXIV and not independently justifying other breaches. Brazil would therefore be unable to rely on Article XXIV to excuse its discriminatory import ban. In coming to this finding, this article seeks to draw some conclusions regarding the scope and applicability of the Article XXIV exception. In particular, it argues that the overly narrow focus on the definition of ‘other regulations of commerce’ and ‘other restrictive regulations of commerce’ has resulted in an inability to see the Article XXIV forest for the trees and a tendency to improperly invoke Article XXIV in regulatory contexts unrelated to the purpose for which it was provided.

Commentary on “A roadmap for the prevention of dementia II. Leon Thal Symposium 2008.” Centers of excellence in Alzheimer's disease: It is time to better integrate patient care and clinical research to improve the prevention and treatment of Alzheimer's disease

Despite enormous worldwide public and private interest in improving the prevention and treatment of Alzheimer's disease (AD), we have not made as much of an impact as we would like, and the number of affected individuals continues to grow. Even more alarmingly, whereas global efforts to identify AD cases and to develop new treatments are increasing, patient-care options are disappearing, so that even if a highly efficacious therapy or prevention approach arose, it would not be used effectively. As a first step toward organizing a better way forward, we should establish AD centers of excellence that mandate both patient care and research in the same setting. These centers would benefit from changes in public health policies related to chronic-disease surveillance, Center for Medicare and Medicaid Services funding for the care of chronic diseases, institutional review boards, good clinical practice guidelines, National Institutes of Health regulations for the use of research funds, Food and Drug Administration guidelines for the approval of AD drugs, and Department of Commerce regulations related to patent protection of AD diagnostic aids and treatments. This new form of AD centers of excellence would also provide direct care to many patients and their families, model care for communities and medical trainees, enhance the voluntary recruitment of AD patients to clinical trials, and improve our understanding of AD and its management.

Safeguard measures in RTAs and Proposals for the KCJ FTA

The surge in RTAs has continued unabated until now. RTAs are successful because they provide the parties of the agreement with the ability to limit potentially injurious trade between them. They do this through the application of safeguard regulations. With regard to the relationship between the WTO and RTAs in terms of safeguards applications, one of the intriguing issues would be whether safeguard measures are part of the general elimination of ‘restrictive regulations of commerce’ between partners of the agreement under Articles XXIV of GATT. In other words, the issue is whether safeguard measures may or may not be imposed upon partners of RTAs under the WTO.With respect to safeguard measures, many RTAs have gone beyond the WTO framework, either by eliminating the possibility of using these measures, or by strengthening WTO rules to minimise the opportunity of using them in a protectionist manner. Safeguard regulations in RTAs are usually divided in rules regarding the application of bilateral or regional safeguard measures and those that regulate the application of global safeguard actions.Northeast Asia has been drawing increasing attention from the international community because of the region's dynamic economic power and strategic value. The three countries of the region are now considering the KCJ (Korea-China-Japan) FTA. Although there may be several obstacles, the prospects of this FTA are bright.Bilateral safeguards can be regulated in more detailed articles of the KCJ FTA. Global safeguard measures may also be allowed in the FTA, just reaffirming the WTO rules. Although many RTAs in the Northeast Asian region do not regulate this, there are some possibilities for the KCJ FTA to provide regional safeguard measures in their free trade area. However, it will be difficult to imagine producing the special treatment rule for small/developing economy countries.Regarding the issue of requirements for safeguards, the KCJ FTA may allow that it does not require ‘unforeseen development’ to take the action. Many RTAs in the Northeast Asian region are in this position and the three countries will prefer protecting their domestic industry. In contrast, the KCJ FTA must require that imports should be a substantial cause of injury for the safeguard action. It is because the Parties will require a more substantial concept linking imports and injury to avoid disputes among the Parties. Conclusively, the standard of requirement for safeguard measures in the KCJ FTA can be such that the imports substantially cause serious injury or threat thereof to the domestic industry producing a like or directly competitive product.The forms of safeguard measures in the KCJ FTA may include suspension of the further reduction of customs duty under the FTA schedule. Furthermore, it may allow for the rate of customs duty to be increased with specific limitations such as the WTO MFN principle. The duration of the safeguard measure in the KCJ FTA must be as long as necessary to prevent or remedy injury with specific period limitations. One year or two years with the same possible period of extension can be considered to be those specific period limitations. The KCJ FTA will provide the consultation and the compensation processes. Many RTAs have rules on the compensation issues. Most RTAs allow the exporting party to apply compensation or practise specific retaliation immediately after the safeguard measure is applied by the importing Party. Regarding the consultation and compensation procedure, the KCJ FTA shall permit various methods. Basically, the importing country proposing to apply a safeguard measure must provide trade liberalizing compensation in other areas with the agreement of the exporting country as a first step. If they cannot reach agreement, the exporting country of the KCJ FTA must have the right to suspend other concessions by retaliation. Finally, the KCJ FTA may also consider providing articles preventing the Party from exercising any of these two steps for a specific period.

The unwary purchaser: Consumer psychology and the regulation of commerce in America

Starting in the 1870s, American jurists deciding cases of trademark infringement began advancing arguments that the ordinary purchaser was an unwary one, easily deceived by imitations. Embedded within their legal decisions was a vision of the typical consumers' habitual behavior and cognitive ability. In response to legal critics who argued that the presumed psychology of the consumer was unevenly deployed, applied psychologists developed laboratory-based experiments and scales for determining the likelihood that the "average" purchaser would be confused. Although these psychologists failed in their goal of securing regular legal patronage, this commercial context and the resulting experiments were constitutive of the delineation of "recognition" as a distinct mental process. Furthermore, this case study complicates the scholarly consensus about the role of standardization and personal responsibility in the liberal administration of mass society.

Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the “administrative law” of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding “public domain.” The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This “internal law of administration” remains both a crucial and an understudied aspect of American administrative governance. author. Sterling Professor of Law and Management, Yale University. My thanks to Anne MacClintock and to colleagues at Yale and elsewhere for helpful comments. Henry Liu, Eugene Nardelli, Rebecca Smullin, and Nicholas Stephanopolous provided energetic and creative research assistance. I am also indebted to the librarians at the Yale Law School and at the James E. Rogers College of Law at the University of Arizona for tireless assistance in locating obscure sources. MASHAW_11-07-06_FORMATTED FOR SC1 5/30/2007 11:39:19 PM reluctant nationalists

A Government of Limited Powers

Roscoe C. Filburn owned small farm in Ohio where he raised poultry, dairy cows, and modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. Agricultural Adjustment Act of 1938 limited wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, Secretary of Agriculture, could not enforce AAA's limits because Congress lacked authority to wheat grown for one's own use. He reasoned: In our federal system, states have authority to legislate except where Constitution constrains them, but federal government may legislate only where Constitution authorizes it. Constitution permits Congress to regulate Commerce with foreign Nations, and among several States and may all Laws which shall be necessary and proper for carrying into Execution its Commerce Clause powers. Mr. Filburn thought that growing and eating wheat on his land were acts in character and that their effects upon interstate commerce are at most 'indirect.' Diane Monson lives in California. She has been growing marijuana she takes to treat substantial medical problems. California Compassionate Use Act of 1996 exempts from criminal liability patients ... who possess or cultivate marijuana for medicinal purposes with recommendation or approval of physician. However, federal Controlled Substances Act classifies marijuana as Schedule I drug. Such drugs have high potential for abuse and no accepted medical use, and it is federal crime to manufacture, distribute, or possess them. Diane Monson (with Angel Raich, another patient using marijuana) went to court to argue that Alberto Gonzales, Attorney General, could not enforce CSA against her or her doctors because Congress lacks authority to marijuana she grows for her own use. Ms. Monson argued that Commerce Clause does not authorize Congress to prohibit local cultivation and use of marijuana in compliance with California law. In 1942, Wichard v. Filburn reached Supreme Court. Justices agreed that AAA was constitutional. They quoted Chief Justice Harlan Stone: The commerce power is not confined in its exercise to regulation of commerce among states. It extends to those activities intrastate which so affect interstate commerce ... as to make regulation of them appropriate means to attainment of legitimate end. Thus, even if appellee's activity be local and though it may not be regarded as commerce, it may still ... be reached by Congress if it exerts substantial economic effect on interstate commerce. Mr. Filburn's wheat affected interstate commerce because it kept him from buying somebody else's wheat. And while his crop was small, its effect, taken together with that of many others similarly situated, is far from trivial. On June 6 of this year, Justices decided six to three that Congress may Ms. Monson's marijuana garden. Justice Stevens said for Court that Commerce Clause was the Framers' response to central problem giving rise to Constitution itself: absence of any federal commerce power under Articles of Confederation. Thus Commerce Clause power is capacious, and case law firmly establishes Congress' power to purely local activities that are part of an economic 'class of activities' that have substantial effect on interstate commerce. principle of stare decisis obliges American courts to decide similar cases similarly. Raich virtually was Wickard. Like farmer in Wickard, respondents are cultivating, for home consumption, fungible commodity for which there is an established, albeit illegal, interstate market. Just as AAA controlled amount of wheat in interstate and foreign commerce, a primary purpose of CSA is to control supply and demand of controlled substances in both lawful and unlawful drug markets. …

Toward Open Recognition?: Standardization and Regional Integration under Article XXIV of GATT

This article provides a legal analysis of the significance of standards, technical regulations, and sanitary or phytosanitary (SPS) provisions (collectively, ‘TBTSPS’ provisions) in regional trade agreements (‘RTAs’) in relation to the multilateral trading system. It first examines the ways in which RTA regulation of national TBTSPS measures may contribute to or detract from liberalization goals. It then describes how GATT Article XXIV and the Understanding on the Interpretation of Article XXIV (the ‘Understanding’), as presently understood, regulate RTA regulation of national TBTSPS measures. Based on its analysis, this article makes the following recommendations: (1) Interpret Article XXIV:5 of GATT to provide an exception from obligations contained in the TBT Agreement and SPS Agreement, principally the MFN obligation, in accordance with the Turkey – Textiles necessity test. This avoids imposing an inappropriate barrier to formation of RTAs. (2) Interpret ‘other restrictive regulations of commerce’ and ‘other regulations of commerce’ in Articles XXIV:5 and 8 to include only discriminatory and unnecessary TBT or SPS measures. This avoids requirements to eliminate or harmonize non‐protectionist TBT or SPS measures. It avoids imposing an inappropriate barrier to formation of RTAs. (3) Interpret Article I:1 of GATT and the MFN provisions of the TBT Agreement and SPS Agreement to clarify authorization for only ‘open’ mutual recognition agreements, similar to the permission contained in Article VII of GATS. This ensures that recognition arrangements will not provide an avenue of discrimination or other defection from WTO multilateral free trade principles. Today, it is not clear that any mutual recognition agreements are authorized.

Facilitating and Regulating Commerce

This article explores how Sir Ivor Richardson's Court of Appeal approached the facilitation and regulation of commerce in the areas of competition and securities law from 1977 to 2002. The author explores the introduction of key legislation (Commerce Act 1986, Fair Trading Act 1986, Securities Amendment Act 1988, and the Companies Act 1993) alongside the establishment of the Securities Commission and Commerce Commission. The article then discusses how competition law was explored through cases involving the record industry, primary production, telecommunications, and electricity transmission. The Court of Appeal's approach to securities law and economics is also explored. It is concluded that Sir Ivor's impact on law and economics is the realisation that market participants cannot be left unregulated and unrestrained to pursue the maximisation of their own wealth. The above legislation are the principal constraints – day-to-day responsibility and administration being left to the Commissions, while courts would interpret and apply the legislation in individual cases in a manner which reflects the underlying economic and social policies.

Facilitating and Regulating Commerce: Commentary

This paper was written as commentary for the Facilitating and Regulating Commerce seminar session. The author discusses the regulation of commerce in New Zealand through the competition law mechanisms of the Commerce Act 1986 and intellectual property law. The paper then notes the term "commercial dispute" is difficult to define, and challenges the idea of needing specialist commercial judges in New Zealand where the commercial market is relatively small. In the absence of empirical evidence that a lack of regulation has harmed New Zealand's economic interests, the author concludes that it is worth waiting to see whether such sweeping legal changes are required.

U.S. industry to get rules for complying with chemical treaty

The last key national commercial sector not yet in compliance with the Chemical Weapons Convention (CWC) may soon be getting its marching orders. The Departments of Commerce and State recently sent the Office of Management & Budget (OMB) proposed regulations that would implement provisions of CWC affecting the U.S. chemical industry. Although the treaty went into effect in April 1996, U.S. industry has not yet had to report its treaty-related activities to Commerce. Legislation implementing the treaty domestically wasn't passed until November 1998. An ensuing interagency squabble kept the President from issuing an executive order parceling out statutory responsibilities between Commerce and State and triggering the issuance of regulations. However, after months of haggling, an interagency agreement has finally been reached, and the executive order is now on President Bill Clinton's desk awaiting his signature. The Commerce regulations govern reporting and on-site inspection requirements that all chemical ...

Capacidade tecnológica e gestão de resíduos em empresas de calçados do Vale do Sinos: estudo de dois casos

O gerenciamento ambiental tem sido visto, especialmente desde o início da atual década, como ferramenta de competitividade. Isto tem ocorrido no contexto da globalização dos mercados, cujas relações de comércio influenciam, de modo determinante, as vantagens competitivas ligadas à diferenciação de produto e à redução de custos. As empresas que se preocupam com a melhoria de seu nível de competitividade, aumentando continuamente sua capacidade tecnológica, supostamente estão mais aptas a adotar o gerenciamento ambiental. Este artigo propõe um modelo de análise da capacidade tecnológica e da gestão de resíduos sólidos para a indústria calçadista, que foi aplicado ao estudo de duas empresas do Vale do Sinos, maior aglomerado brasileiro de produção de calçados. O estudo dos casos mostrou que o modelo proposto é um instrumento útil que deverá ser submetido a novos testes. Conclui-se que as empresas, apesar de enquadráveis no mesmo nível de capacidade tecnológica, apresentam diferenças de desempenho tecnológico capazes de afetar o resultado em termos de gerenciamento de resíduos sólidos industriais. Em outras palavras, melhorias promovidas na capacidade tecnológica condicionam, mas não necessariamente determinam, o bom desempenho em termos de gerenciamento de resíduos sólidos nas empresas.

Efficient accounting systems: justifying US accounting practice in an unregulated commercial environment

This paper presents the contextual social discourse in which US accounting practices emerged within an unregulated commercial environment in the last two decades of the nineteenth century. This is shown to be in stark contrast to the emerging British accounting profession, which was influenced significantly by developments of governmental regulation of commerce, through bankruptcy laws and specific requirements for annual audits. In the US, appeals for professional expertise relied mainly on the promotion of the accountant's skill in designing and monitoring efficient accounting systems for the economic and moral well-being of society. The profession developed these practices without the aid of specific legal sanctions. The profession appealed through the marketplace for their skills to be used, because they would provide economic and moral benefits. It is shown that reform elements in US society used these widely accepted practices of the efficient accounting system to reform government, most explicitly and publicly in the reforms of he US Treasury Department by the Dockery Commission in 1895.