Courts Increasingly Demand That Businesses Break the Law

United States courts are demanding that businesses break foreign laws at an exponentially increasing rate. A practice that was virtually unheard of only 30 years ago is now so widespread that U.S. courts are ordering foreign lawbreaking in the most trivial discovery matters. When a court receives a discovery request that violates a foreign law, it applies the 5-part Aérospatiale balancing test—a test where 4 of the 5 factors are left to the subjective decisions of the judge. By ordering foreign law breaking, our courts—often biased in favor of United States discovery rules—are encouraging abusive litigation tactics, undermining the rule of law, and causing friction with foreign nations. In this article, I update my original work on court ordered law breaking by analyzing these orders over the last three years, and I conclude that the Supreme Court needs to resolve the circuit split regarding the proper way to handle requests for information that violate foreign laws

Court-Ordered Law Breaking: U.S. Courts Increasingly Order the Violation of Foreign Law

Perhaps the strangest legal phenomenon of the past decade is the extraordinary surge in U.S. courts ordering individuals and companies to violate foreign law. The very concept of court-ordered law-breaking is a strange one. Indeed, until fairly recently, it was virtually unheard of for a U.S. court to order the violation of foreign laws. Over the past decade, however, this phenomenon has increased at an exponential rate. A full 60% of all instances of courts ordering the violation of foreign laws have occurred within the past five years. What happened? In its 1987 Aérospatiale decision, the Supreme Court set forth a five-factor test that courts use when determining whether or not to order the violation of foreign law. Four of the five factors in this test require courts to make subjective judgments (for example, whether the information sought is “important”). But are U.S. courts actually able to carry out this analysis without being biased towards U.S. discovery? The five-Justice majority and four-Justice dissent disagreed sharply on this question, with the dissent warning that trial court decisions would be riddled with “pro-forum bias.” This paper is the first to analyze statistically whether the prediction of pro-forum bias, made by the four-Justice Aérospatiale dissent and by numerous commentators, has come true. The results are stark

Court-Ordered Law Breaking: U.S. Courts Increasingly Order the Violation of Foreign Law

Perhaps the strangest legal phenomenon of the past decade is the extraordinary surge in U.S. courts ordering individuals and companies to violate foreign law. The very concept of court-ordered law-breaking is a strange one. Indeed, until fairly recently, it was virtually unheard of for a U.S. court to order the violation of foreign laws. Over the past decade, however, this phenomenon has increased at an exponential rate. A full 60% of all instances of courts ordering the violation of foreign laws have occurred within the past five years. What happened? In its 1987 Aérospatiale decision, the Supreme Court set forth a five-factor test that courts use when determining whether or not to order the violation of foreign law. Four of the five factors in this test require courts to make subjective judgments (for example, whether the information sought is “important”). But are U.S. courts actually able to carry out this analysis without being biased towards U.S. discovery? The five-Justice majority and four-Justice dissent disagreed sharply on this question, with the dissent warning that trial court decisions would be riddled with “pro-forum bias.” This paper is the first to analyze statistically whether the prediction of pro-forum bias, made by the four-Justice Aérospatiale dissent and by numerous commentators, has come true. The results are stark

The Failure of Anti-Money Laundering Regulation: Where is the Cost-Benefit Analysis?

Regulators have been punishing the banks not because of any actual money laundering, but rather because the banks did not meet the regulators’ own subjective vision of the ideal anti–money laundering or counter–terrorist financing program. However, no one has attempted to show that the supposedly ideal vision of an anti–money laundering or counter–terrorist financing program would actually be more effective than the programs the banks have in place. Even if the regulators’ ideal vision of an anti–money laundering and counter–terrorist financing program would in fact be more effective than what exists now, it is unclear if the benefits of such a program would outweigh the very serious costs. The optimal level of banking regulation necessarily requires some sort of cost-benefit analysis. Indeed, legal scholars, Congress, and the courts have long advocated for agencies to conduct qualitative and quantitative assessment of all consequences of their regulatory actions. Under most circumstances, regulators should undertake an action only if its benefits outweigh its costs. Thus, banking regulators’ utter silence regarding the costs and benefits of their subjective vision is troubling, and results in bad public policy

EURECCA colorectal: multidisciplinary mission statement on better care for patients with colon and rectal cancer in Europe

Background: Care for patients with colon and rectal cancer has improved in the last twenty years however still considerable variation exists in cancer management and outcome between European countries. Therefore, EURECCA, which is the acronym of European Registration of cancer care, is aiming at defining core treatment strategies and developing a European audit structure in order to improve the quality of care for all patients with colon and rectal cancer. In December 2012 the first multidisciplinary consensus conference about colon and rectum was held looking for multidisciplinary consensus. The expert panel consisted of representatives of European scientific organisations involved in cancer care of patients with colon and rectal cancer and representatives of national colorectal registries. Methods: The expert panel had delegates of the European Society of Surgical Oncology (ESSO), European Society for Radiotherapy & Oncology (ESTRO), European Society of Pathology (ESP), European Society for Medical Oncology (ESMO), European Society of Radiology (ESR), European Society of Coloproctology (ESCP), European CanCer Organisation (ECCO), European Oncology Nursing Society (EONS) and the European Colorectal Cancer Patient Organisation (EuropaColon), as well as delegates from national registries or audits. Experts commented and voted on the two web-based online voting rounds before the meeting (between 4th and 25th October and between the 20th November and 3rd December 2012) as well as one online round after the meeting (4th-20th March 2013) and were invited to lecture on the subjects during the meeting (13th-15th December 2012). The sentences in the consensus document were available during the meeting and a televoting round during the conference by all participants was performed. All sentences that were voted on are available on the EURECCA website www.canceraudit.eu. The consensus document was divided in sections describing evidence based algorithms of diagnostics, pathology, surgery, medical oncology, radiotherapy, and follow-up where applicable for treatment of colon cancer, rectal cancer and stage IV separately. Consensus was achieved using the Delphi method. Results: The total number of the voted sentences was 465. All chapters were voted on by at least 75% of the experts. Of the 465 sentences, 84% achieved large consensus, 6% achieved moderate consensus, and 7% resulted in minimum consensus. Only 3% was disagreed by more than 50% of the members. Conclusions: It is feasible to achieve European Consensus on key diagnostic and treatment issues using the Delphi method. This consensus embodies the expertise of professionals from all disciplines involved in the care for patients with colon and rectal cancer. Diagnostic and treatment algorithms were developed to implement the current evidence and to define core treatment guidance for multidisciplinary team management of colon and rectal cancer throughout Europe