Regulatory Consistency Requirements in International Trade

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Alan O. Sykes One of the most challenging tasks for international trade agreements is to distinguish protectionist regulation from legitimate regulatory policies. An important set of tools in this regard may be termed “regulatory consistency requirements.” These include the national treatment obligation of GATT, which requires that imported goods be treated no less favorably than “like” domestic goods by regulators. Further consistency requirements were introduced at the formation of the WTO. These newer consistency requirements allow challenges to domestic regulation based on disparate policies toward different products and industries (such as beef and pork, or salmon and baitfish). This paper explores the economic logic and legal scope of consistency requirements in WTO law. The central claim is that narrow consistency requirements such as the national treatment obligation are helpful in the…
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Liberal Internationalism and the Populist Backlash

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Eric A. Posner A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises. Full Article
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A (Qualified) Defense of Secret Agreements

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Ashley S. Deeks This article sets out to describe and defend—with certain qualifications—the use of secret commitments in contemporary practice, with a focus on those to which the United States is a party. Secret commitments should not always be viewed with suspicion and hostility. Notwithstanding their opacity, these commitments perform a critical role in shaping legal and strategic interactions between the United States and other states. Further, the evidence belies the idea that states predominately resort to secrecy when they intend to violate international norms. Most of those commitments that have come to light are—counter-intuitively, perhaps—consistent with the U.N. Charter, and in some cases actually advance the Charter's purposes. Full Article
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The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Daniel Bodansky Since the emergence of the international climate change regime in the early 1990s, frustration with the slow pace of the negotiations has bubbled over from time to time in proposals to address climate change through international adjudication.1 I was involved in one such episode two decades ago, as part of a team of international lawyers researching the claims that small island states might bring for climate change damages. A dozen years later, the idea of climate change litigation was revived by the Pacific island state of Palau, which proposed that the United Nations General Assembly request an advisory opinion from the International Court of Justice (I.C.J.) concerning the duties of states to ensure that greenhouse gas emissions from their territory do not harm other states.2 That initiative didn’t…
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Prizeless Wars, Invisible Victories: The Modern Goals of Armed Conflict

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Gabriella Blum By restricting the permissible justifications for war and excluding all tangible benefits from the permissible goals of war, replacing both with an amorphous, however seemingly narrow interest in “defense,” those clear yardsticks have been lost. As a result, we no longer have a clear metric of success that marks the sufficiency of the force used: there is no recognizable moment in which the war has achieved its legitimate goals. Victory can no longer be measured by concrete benefits but only by the absence of concrete harms. And an absence is hard to prove. Modern wars, as a consequence, may have more morally legitimate reasons, but they are also more difficult to judge and to restrict. . . . The justifications and goals of war may have always been…
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Free to Do No Harm: Conscience Protections for Healthcare Professionals

2017, Past Issues, Print, Volume 49 (2017) Issue 2 (Summer)
Kevin H. Theriot & Ken Connelly The right to conscience of medical practitioners and related healthcare professionals has come under increasing attack in recent years. Examples abound of individuals and institutions being compelled to act against their will and their beliefs. Yet despite this unfortunate reality, it is difficult to conceive of a scenario in which the right to conscience for medical practitioners should not prevail in a conflict with some other claimed imperative, especially given its historical and philosophical pedigree. Full Article
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No One Knew What to Expect: Breaking the Phoenix Gender Barrier in 1969

2017, Past Issues, Print, Volume 49 (2017) Issue 2 (Summer)
The Honorable Mary M. Schroeder 1968 was not a good year for the world, for the United States, or for my husband, Milt, and me. The Vietnam War and public reactions to it were going so badly that in March, President Lyndon Johnson announced he would not stand for re-election in the fall. In April, Martin Luther King was gunned down in Memphis, sparking nation-wide riots including unrest in our Capitol Hill neighborhood in Washington, D.C. The ruckus drove Milt and me out of our little house at 8½ E Street Southeast and into the Virginia countryside while military units descended on Washington to keep order. Things became even worse when, in June, our great hope for the future, Bobby Kennedy, was shot in Los Angeles in a hotel kitchen,…
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Safeguarding the Right to Try

2017, Past Issues, Print, Volume 49 (2017) Issue 2 (Summer)
Christina Sandefur When Jenn McNary’s son Austin was three and her son Max was just a newborn, both boys were diagnosed with Duchenne’s Muscular Dystrophy— an incurable, fatal, degenerative muscle disorder. By the time Jenn learned of a promising treatment undergoing testing in clinical trials, Austin had declined so badly that he was restricted to a wheelchair. Jenn immediately tried to enroll both boys in the trial—only to learn that the trial was limited to ambulatory patients. That meant Max was eligible, but Austin’s disease had progressed too far to qualify. Jenn was forced to watch while one son’s condition improved significantly under treatment, and her other son’s condition worsened until he could no longer dress or use the restroom without help. Thirteen-year-old Max became sixteen-year-old Austin’s caregiver. The United…
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An End to Preemptively Limiting the Scope of a Manufacturer’s Duty: Why the Arizona Court of Appeals Was Right in Striking Down the Learned Intermediary Doctrine

2017, Past Issues, Print, Volume 49 (2017) Issue 2 (Summer)
Matt O'Connor On January 29, 2015, the Arizona Court of Appeals rejected one of the most contentious tort doctrines in modern U.S. history. Amanda Watts began taking the drug Solodyn for acne treatment when she was a minor, as prescribed by her physician. After long-term use of Solodyn, she developed drug-induced hepatitis and drug-induced lupus, and now “she may suffer from lupus for the rest of her life.” She brought suit against the drug manufacturer, Medicis, for consumer fraud, product liability, and punitive damages. Although Amanda suffered obvious side effects as a result of taking Solodyn, the trial court granted the defendant’s motion to dismiss based on the learned intermediary doctrine (“the doctrine”). This tort liability doctrine can be traced back to 1925. It provides that “a manufacturer is not…
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Unclouding Arizona’s Water Future

2017, Past Issues, Print, Volume 49 (2017) Issue 2 (Summer)
Rhett Larson and Brian Payne A cloud hangs over the future of Arizona’s water. The cloud has hung low and heavy for over forty years. The cloud is the ongoing adjudication of water rights in Arizona’s courts, where the priority, amount, and use of virtually all non-Colorado River water in Arizona remain in dispute. Arizona’s general stream adjudications cost the state, cities, towns, farms, mines, businesses, and citizens millions of dollars each year in legal costs. Those costs pale in comparison to the uncertainty that obscures Arizona’s water future because the cases remain undecided. The last time such a cloud hung over Arizona’s water future, the state enacted one of the most influential and innovative pieces of water law seen in world in last century—the Arizona Groundwater Management Act (GMA).…
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