The Fine Print


Reader Rick Barton sends me an interesting article from yesterday's New York Times. It describes a little-noted byproduct of Nafta:

"It's basically been under the radar screen," Peter Spiro, a law professor at Hofstra University, said. "But it points to a fundamental reorientation of our constitutional system. You have an international tribunal essentially reviewing American court judgments."

Update: And here's a harsh critique of the Times piece from Brad DeLong, who points out that it's very misleading to describe the Nafta tribunals as an appeals court.

NEXT: 25 Years for Being 'Stubborn'

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  1. NOOOOO!!!!!!!

    “Review” implies that the American court judgments can be overturned by the international tribunal. They can’t.

    What actually happens is that the U.S. government must pay weregild to foreign investors when the tribunal decides that American courts have taken a dive.

    The article is misleading.

    More interesting, perhaps, is that it hasn’t happened yet: no such tribunal has yet ordered the U.S. government to pay a cent.

  2. I thought the liberals should welcome the ‘enlightened supervision’ of the International courts over the Americans 🙂

    Seriously, the outrage is that something in a law the Congress passed was ‘under the radar’. These incompetant morons (and their staff) didn’t read all of the crap they debated and voted on! Let’s see if the President claims he didn’t know about this chapter 11 as well.

    Yet another ammo for Kerry-bashers – this guy is constantly being misled over all kinds of stuff he voted for 🙂 And he wants a promotion!

  3. From the article:

    “This is the biggest threat to United States judicial independence that no one has heard of and even fewer people understand,” said John D. Echeverria, a law professor at Georgetown University.

    The availability of this additional layer of review, above even the United States Supreme Court, is a significant development, legal scholars said.

    “There are grave implications here,” Chief Justice Ronald M. George of the California Supreme Court said in an interview. “It’s rather shocking that the highest courts of the state and federal governments could have their judgments circumvented by these tribunals.”

    This seems to be a direct attack on American liberty and independence.

    The part of Nafta that created the tribunals, known as Chapter 11, received no consideration when it was passed in 1993.

    “If Congress had known that there was anything like this in Nafta,” Abner Mikva said, “they would never have voted for it.”

    We had better contact congress and tell them that this situation is totally unacceptable or many of our other endeavors for liberty might become meaningless. The decisions of these international tribunals are beyond the political reach of the America people!

  4. Try telling the bank that when you signed the loan agreement, the part about paying back the loan was “under the radar screen.” “If I had known I had to pay it back, I would never have signed it!” 😀

  5. Pedant hat back on:
    Isn’t “weregild” the lost-earnings/death benefit paid to a vassal lord or family? (weregild being roughly “man’s life-gold”) The penalty described herein sounds like a simple penalty, and going back to an old short story in Analog called “Wite and Weregild” I’d have to figure that this is more properly wite.

  6. “If Congress had known that there was anything like this in Nafta,” Abner Mikva said, “they would never have voted for it.”

    Ugh. Democracy is doomed when legislators can’t be bothered to actually read what they are voting on.

  7. Brad, they may not have had to pay anything yet, but every time the U.S. challenges Canada on softwood lumber at these tribunals, they lose. The U.S. uses them primarily to try and prop up their own industies against international competition, in violation of NAFTA.

  8. “‘I was at a dinner party,’ Chief Justice [Margaret H.] Marshall said in a recent telephone interview. ‘To say I was surprised to hear that a judgment of this court was being subjected to further review would be an understatement.'”

    It seems that Chief Justice Marshall, whose court imposed “gay marriage” on the Bay State, has suddenly discovered what it feels like to be subject to the whims of a lawless, out-of control judicial system.

    It ain’t pretty, eh, Margie?

  9. Happily, they don’t have silly problems like these in Somalia.

  10. Under the radar? I did a paper on Nafta last semester, and this issue was brought up in almost every article I read about NAFTA.

  11. dead elvis,

    The Uruguay Round of GATT was ratified in a lot of countries before the draft treaty was even translated into the national languages. In some, it was passed as an emergency measure by rump legislatures called into session at short notice.

    BTW, USA Patriot was rubber stamped without being read by most people in Congress. I wonder how long it will be before Bush’s horse is appointed to the Senate.

  12. not a single word was uttered in discussing Chapter 11. Why? Because we didn’t know how this provision would play out. No one really knew just how high the stakes would get.

    This from the democrat who wants to be president. I wonder how much of this feckless foresight went into Patriot.

    Anyway, we didn’t blink at the U.N., why should we worry about this little Neopolitan tribunal?

  13. Brad DeLong:

    So why did Liptak write the article that he did?

    Better question: Why do the people quoted in the article express such concern if Brad DeLong’s sanguine view is justified?

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