An Introduction to Trade and National Security: New Concepts of National Security in a Time of Economic uncertainty

Within the context of enhanced rhetoric about the need for national security measures to protect domestic economic interests, the Duke Journal of Comparative & International Law hosted a Symposium on National Security and Trade Law in which speakers raised questions as to not only what is meant by national security today, but also the significance of invoking national security exceptions in trade. This Introduction provides an overview of issues discussed as well as some reflections on the use of the national security exception in trade during a time when nations are moving away from international cooperation towards unilateralism and facing global crises such as the COVID-19 pandemic. With the World Trade Organization’s recent panel decision, Russia—Measures Concerning Traffic in Transit , the international community received some guidance as to the limited use of this exception under GATT Article XXI and the need for good faith by nations invoking it, but larger questions remained as to its applicability in the context of economic insecurity and in the context of broader global challenges such as cybersecurity and climate change. Furthermore, with the current dysfunction of the Appellate Body of the WTO, there is no central adjudicatory body to address these issues in a systematic fashion, leaving it up to the nations or ad hoc adjudicatory processes to decide, rendering the multilateral trade framework an even more fragmented system. New ways of imagining the role of trade in the context of global and economic crises are needed, as well as more resilient institutional frameworks that can adapt to future forms of insecurity and allow for varied, constructive forms of dialogue among nations

Examination of 4’,6-diamidino-2-phenylindole (DAPI) in Silica Gels through Fluorometry

Silica sol-gels synthesized through hydrolysis and condensation reactions via acid- and base-catalyzed procedures containing 4’,6-diamidino-2-phenylindole (DAPI) have been examined using fluorescence spectroscopy. DAPI is a fluorescent molecule that has traditionally been used in biosensors as a target molecule and a fluorescent stain known to bind strongly to the A-T rich regions of DNA. Sol-gels containing various concentrations of DAPI were dried conventionally to form xerogels or supercritically to form aerogels and then analyzed using fluorescence spectroscopy to determine the most optimal concentration of DAPI

City of Boerne v. Flores: Religious Free Exercise Pays a High Price for the Supreme Court\u27s Retaliation on Congress

The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a person\u27s right to the free exercise of religion. This protection, however, fails to provide a framework with which to reconcile the freedom of religious conduct with the need for government to regulate conduct. All three branches of government, as created in the Constitution, create and refine this framework. Traditionally, the judiciary has been the final interpreter of the Constitution and, in this capacity, has defined the powers of the other branches of government. For example, the Supreme Court has interpreted Congress\u27s enforcement power under Section Five of the Fourteenth Amendment to be a remedial one, but at the same time broadened its scope to the degree that Congress could justify stepping into a judicial role for the sake of religious freedom. To that end, Congress enacted the Religious Freedom Restoration Act of 1993 ( RFRA ) in order to codify a strict scrutiny test for free exercise cases. RFRA represents Congress\u27s response to the Court\u27s decision in Employment Division, Department of Human Resources of Oregon v. Smith, in which the Court concluded that the First Amendment did not relieve individuals from complying with neutral and generally applicable laws that, in effect, infringed upon religious practices. In its 1997 decision in City of Boerne v. Flores, the Court responded to the passage of RFRA and addressed whether Congress has an affirmative power to preserve the rights guaranteed by the First Amendment. The Court confronted Congress, fighting back with one of the cornerstone principles of Marbury v. Madison, that [ilt is emphatically the province and duty of the judicial department to say what the law is. The Court concluded that RFRA was unconstitutional because Congress\u27s enforcement power under Section Five of the Fourteenth Amendment is solely remedial. This Note contends that Flores has significant implications for the future balance of power between the judiciary and legislative branches, as well as for the future of free exercise of religion. First, it discusses the history of the Court\u27s decisions on the right to free exercise, culminating in its decision in Smith as the catalyst that encouraged Congress to enact RFRA. A closer look into Smith will shed light on the future of free exercise. Moreover, a historical look into the judicial treatment of legislative enforcement power will also explain how Congress gathered the ammunition to pass such a law. Part II provides a summary of the facts and opinions that comprise Flores. Part III analyzes the history of both the Free Exercise Clause and Congress\u27s enforcement power-two subjects that set the stage for, and independently animated the opinions in Flores. It also discusses the Court\u27s assertion of its role as the final interpreter of the Constitution and its need to define the boundaries of congressional remedial power. Finally, Part III explains the significance of Flores as to the separation of powers and federalism doctrines. While setting limits on congressional enforcement power, Flores also significantly affects the future of the free exercise clause. Flores clearly reasserts that Smith is the law on free exercise. In so doing, however, it left untouched the eventuality that the Court may need to revisit the issue in cases of neutral, generally applicable laws

Mission Possible: Reciprocal Deference between Domestic Regulatory Structures and the WTO

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member states from the GATT multilateral regime in favor of regionalism. In dealing with domestic regulatory policies, the WTO panels can use Article III as a means toward building bridges with its member states as well as the regional agreements that also form part of the WTO multilateral trade regime. This paper asserts that a better approach for the WTO in adjudicating internal regulatory policy should be one that incorporates a procedural mechanism for assessing questions of legitimacy regarding regulatory measures. Unlike the regulatory approach, this mechanism would allow WTO panels to deal with questionable measures by deferring to domestic internal structures that implement legitimate regulatory policy. In such deference, WTO would place the burden on the domestic institutions closest to the implementation of those measures to prove no alternative means more aligned with commitments under GATT for furthering legitimate domestic policy. This mechanism recognizes that regional tribunals also look to WTO adjudication in deciding similar issues at the domestic level. In addition, domestic regulatory institutions of member states are bound by their commitments under the GATT agreements. In proposing a reciprocal deference approach, I will draw from parallel debates in U.S. constitutional law as well as decisions from the NAFTA tribunals

Disaggregating the Regional-Multilateral Overlap: The NAFTA Looking-Glass

This short piece explores regionalism through the lens of NAFTA and examines its relationship to the multilateral trade regime and its effects on domestic policy. It tries to better understand the legal paradigm that allows the public aspects of trade law to intersect with the private interests of private investors. The rich jurisprudence of the Chapter 11 investment chapter of NAFTA provides a looking-glass into the complex interplay of state and non-state actors who navigate through the regional and multilateral trade and investment frameworks to further their interests. By disaggregating these overlaps, the paper illuminates this interplay which allows private actors to influence governments and affect domestic regulatory policy. Furthermore, by invoking the rich trade jurisprudence of the WTO, state and non-state actors working within regional legal frameworks further solidify the legitimacy of international adjudicatory processes of the WTO, furthering its political and economic influence on member states. Regional agreements are at times better positioned to deal with regulatory polices because of their proximity to domestic issues at hand that may impact the region. However, regional agreements may also contribute in dismantling domestic regulatory structures which may have legitimate goals. While the WTO may not bear the ultimate burden of resolving the conflicts between domestic trade and regulatory policies, the multilateral framework it provides may be a strong coordinating force that creates important legal linkages between its own adjudicatory processes and those of regional tribunals. Through these linkages, WTO panels may better deal with domestic regulatory policies that impact trade, thereby enhancing dialogue among the various state and non-state actors regarding regulatory measures. This short article is the product of a Symposium sponsored by the Indiana International and Comparative Law Review on “Assessing the Impact of Existing Bilateral and Multilateral U.S. Trade Agreements and Attempting Policy Recommendations for the Future,” at Indiana University Law School - Indianapolis

Disaggregating the Regional-Multilateral Overlap: The NAFTA Looking-Glass

This short piece explores regionalism through the lens of NAFTA and examines its relationship to the multilateral trade regime and its effects on domestic policy. It tries to better understand the legal paradigm that allows the public aspects of trade law to intersect with the private interests of private investors. The rich jurisprudence of the Chapter 11 investment chapter of NAFTA provides a looking-glass into the complex interplay of state and non-state actors who navigate through the regional and multilateral trade and investment frameworks to further their interests. By disaggregating these overlaps, the paper illuminates this interplay which allows private actors to influence governments and affect domestic regulatory policy. Furthermore, by invoking the rich trade jurisprudence of the WTO, state and non-state actors working within regional legal frameworks further solidify the legitimacy of international adjudicatory processes of the WTO, furthering its political and economic influence on member states. Regional agreements are at times better positioned to deal with regulatory polices because of their proximity to domestic issues at hand that may impact the region. However, regional agreements may also contribute in dismantling domestic regulatory structures which may have legitimate goals. While the WTO may not bear the ultimate burden of resolving the conflicts between domestic trade and regulatory policies, the multilateral framework it provides may be a strong coordinating force that creates important legal linkages between its own adjudicatory processes and those of regional tribunals. Through these linkages, WTO panels may better deal with domestic regulatory policies that impact trade, thereby enhancing dialogue among the various state and non-state actors regarding regulatory measures. This short article is the product of a Symposium sponsored by the Indiana International and Comparative Law Review on “Assessing the Impact of Existing Bilateral and Multilateral U.S. Trade Agreements and Attempting Policy Recommendations for the Future,” at Indiana University Law School - Indianapolis

Foreword: NAFTA as a Lesson for Globalization

Since its enactment, NAFTA has impacted international business among its members and it has awakened concerns of the environmental and labor challenges that the participating countries face as they move toward economic integration. Among the many challenges, coping with the economic, legal, and cultural differences that exist among the partners has been difficult. The nations must continue to work together to harmonize their laws in such a way that allows for easier integration without impeding their sovereign power to enact laws that address local needs. At the conference entitled “NAFTA at Ten: Harmonization and Legal Transformation,” held on June 14-15, 2003 at the University of Windsor, Ontario, the University of Detroit Mercy School of Law and the University of Windsor Faculty of Law brought together esteemed international legal scholars from Canada, Mexico, and the United States to share their extensive expertise and knowledge and discuss these important issues

Foreword: NAFTA as a Lesson for Globalization

Since its enactment, NAFTA has impacted international business among its members and it has awakened concerns of the environmental and labor challenges that the participating countries face as they move toward economic integration. Among the many challenges, coping with the economic, legal, and cultural differences that exist among the partners has been difficult. The nations must continue to work together to harmonize their laws in such a way that allows for easier integration without impeding their sovereign power to enact laws that address local needs. At the conference entitled “NAFTA at Ten: Harmonization and Legal Transformation,” held on June 14-15, 2003 at the University of Windsor, Ontario, the University of Detroit Mercy School of Law and the University of Windsor Faculty of Law brought together esteemed international legal scholars from Canada, Mexico, and the United States to share their extensive expertise and knowledge and discuss these important issues

City of Boerne v. Flores: Religious Free Exercise Pays a High Price for the Supreme Court\u27s Retaliation on Congress

The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a person\u27s right to the free exercise of religion. This protection, however, fails to provide a framework with which to reconcile the freedom of religious conduct with the need for government to regulate conduct. All three branches of government, as created in the Constitution, create and refine this framework. Traditionally, the judiciary has been the final interpreter of the Constitution and, in this capacity, has defined the powers of the other branches of government. For example, the Supreme Court has interpreted Congress\u27s enforcement power under Section Five of the Fourteenth Amendment to be a remedial one, but at the same time broadened its scope to the degree that Congress could justify stepping into a judicial role for the sake of religious freedom. To that end, Congress enacted the Religious Freedom Restoration Act of 1993 ( RFRA ) in order to codify a strict scrutiny test for free exercise cases. RFRA represents Congress\u27s response to the Court\u27s decision in Employment Division, Department of Human Resources of Oregon v. Smith, in which the Court concluded that the First Amendment did not relieve individuals from complying with neutral and generally applicable laws that, in effect, infringed upon religious practices. In its 1997 decision in City of Boerne v. Flores, the Court responded to the passage of RFRA and addressed whether Congress has an affirmative power to preserve the rights guaranteed by the First Amendment. The Court confronted Congress, fighting back with one of the cornerstone principles of Marbury v. Madison, that [ilt is emphatically the province and duty of the judicial department to say what the law is. The Court concluded that RFRA was unconstitutional because Congress\u27s enforcement power under Section Five of the Fourteenth Amendment is solely remedial. This Note contends that Flores has significant implications for the future balance of power between the judiciary and legislative branches, as well as for the future of free exercise of religion. First, it discusses the history of the Court\u27s decisions on the right to free exercise, culminating in its decision in Smith as the catalyst that encouraged Congress to enact RFRA. A closer look into Smith will shed light on the future of free exercise. Moreover, a historical look into the judicial treatment of legislative enforcement power will also explain how Congress gathered the ammunition to pass such a law. Part II provides a summary of the facts and opinions that comprise Flores. Part III analyzes the history of both the Free Exercise Clause and Congress\u27s enforcement power-two subjects that set the stage for, and independently animated the opinions in Flores. It also discusses the Court\u27s assertion of its role as the final interpreter of the Constitution and its need to define the boundaries of congressional remedial power. Finally, Part III explains the significance of Flores as to the separation of powers and federalism doctrines. While setting limits on congressional enforcement power, Flores also significantly affects the future of the free exercise clause. Flores clearly reasserts that Smith is the law on free exercise. In so doing, however, it left untouched the eventuality that the Court may need to revisit the issue in cases of neutral, generally applicable laws