After the highest court in Massachusetts ruled against a Canadian real estate company and after the United State[s] Supreme Court declined to hear its appeal, the company's day in court was over.
Or so thought Chief Justice Margaret H. Marshall of the Massachusetts court, until she learned of yet another layer of judicial review, by an international tribunal.
"I was at a dinner party," Chief Justice 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."
Tribunals like the one that ruled on the Massachusetts case were created by the North American Free Trade Agreement, and they have heard two challenges to American court judgments. In the other, the tribunal declared a Mississippi court's judgment at odds with international law, leaving the United States government potentially liable for hundreds of millions of dollars.
..."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.
"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."
The part of NAFTA that created the tribunals, known as Chapter 11, received no consideration when it was passed in 1993.
"When we debated NAFTA," Senator John Kerry of Massachusetts, the presumptive Democratic presidential nominee, said in 2002, "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."
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Or so thought Chief Justice Margaret H. Marshall of the Massachusetts court, until she learned of yet another layer of judicial review, by an international tribunal.
"I was at a dinner party," Chief Justice 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."
Tribunals like the one that ruled on the Massachusetts case were created by the North American Free Trade Agreement, and they have heard two challenges to American court judgments. In the other, the tribunal declared a Mississippi court's judgment at odds with international law, leaving the United States government potentially liable for hundreds of millions of dollars.
..."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.
"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."
The part of NAFTA that created the tribunals, known as Chapter 11, received no consideration when it was passed in 1993.
"When we debated NAFTA," Senator John Kerry of Massachusetts, the presumptive Democratic presidential nominee, said in 2002, "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."
So what's the point here? That we can exploit the rest of the world with trade agreements like NAFTA, that we can do business internationally, but that the laws governing our international conduct should be answerable only to American courts?
"United States judicial independence"? In international business? How utterly and ridiculously arrogant.
Kerry. The other white meat.
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