Results tagged “jurisdiction” from PlanetGreen.org

Update: Missouri's Inaction on Monsanto

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Almost two months ago, we informed you of the duplicitous practices of Monsanto, Inc, which sells its genetically modified seeds to its growers on the condition that they sign a uniform contract in which Monsanto propagates the supposal that its patent protection extends farther than it does under federal patent laws. Once farmers sign this agreement, even though it is predicated on a fraudulent pretense, they are barred from saving and replanting seed grown from Monsanto crops - even though they have the right to do so under 35 U.S.C. §163.

Since then, I had reported Monsanto's misconduct to the Consumer Protection Division of the Missouri Attorney General's office, in the hope that they could put an end to this chicanery. Since Monsanto is incorporated in Missouri and actively selected that state in the "Choice of Law" provisions of their unconscionable contract, it follows that the Division has ample jurisdiction over this pattern and practice of misconduct. Yet, in responding to my complaint, they disavowed any authority to act on the matter:

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I understand that the State's decision to pursue the issue or not is a matter of prosecutorial discretion -- I am simply sharing the rather interesting grounds they chose to justify their inaction.

Say No To Kangaroo Courts

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Kangaroo.jpgAs I mentioned in my last installment of this series, TPP would eviscerate this country's already weak control over product safety. However, one argument in favor of weakening jurisdiction rules and long-arm statutes is that such an extensive reach would expose our businesses and government agencies to lengthy and costly lawsuits against them by foreign entities.

Enter the Investor-State Dispute Settlement system.

This is a binding arbitration agreement that allows corporations to challenge U.S. regulations without ever even submitting to the procedures and precedents of U.S. courts. Instead of impartial judges, they go up before a panel which, more often than not, would be made up of highly-paid lawyers from firms specializing in defending corporations and challenging government ordinances. Yet these judges would not be forbidden from practicing law between times, and in some cases representing the very parties they have just passed a judgment on. Instead of the Federal Rules of Civil Procedure or any comparable code, they would operate on a perplexing hybrid of multinational standards.

All the gains this country has made since the Roosevelt administration stand to be reversed. Any increases in the minimum wage, and possibly even our existing wages and hours laws, could be thrown over. What's left of our clean air regulations once our courts are through with them could be dismantled even further. Food safety measures dating back to 1906 are once again in danger of being arbitrarily struck down. Worst of all, though, because this tribunal's jurisdiction is reserved for cases brought by "international investors," U.S. companies, labor unions, and government agencies would still have to enforce the more liberal terms of the agreement in foreign legal systems, which are often inferior in their procedural safeguards and common law decisions.

It is hard for me to believe that we have spent so many decades and centuries attempting to improve our existing justice system and insure the fairness of every detail only to abandon it at the behest of outlaw corporations and their smooth-talking stooges. Yet, if Congress does approve the TPP, it will be rejecting our values of substantive justice at enormous cost to American consumers and workers.

Say No to Jurisdictional Limbo

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The proposed Trans-Pacific Partnership trade deal would authorize outsourcing to Asia on an unprecedented scale. Widespread job loss and tax evasion would obviously result - however, an unforeseen consequence might also be the loss of U.S. jurisdiction over the wrongdoing of foreign corporations.

This side effect of international commerce is far from coincidental. Rather, for both the alien manufacturers contracting to supply goods to this country and the domestic distributors of the imports, it has long been the perfect arrangement to insure that neither has to pay the cost of any negligence that may have occurred in the construction of the product.

The problem began, on its current scale, in 1987, with the Supreme Court's decision in Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987). This case involved a motorcycle accident attributable to defects in the vehicle's rear tire, which injured Gary Zurcher and killed his wife Ruth. The maker of the tire tube, Asahi, did not even bother to dispute the facts in a products liability suit brought the next year. Rather, it claimed that California courts could not exercise jurisdiction over it because its base of business was Taiwan and it had no contacts with California. Shockingly, the Court agreed with this claim, reversing the lower courts even over the objection of local businesses who felt that their decision to remain in this country had gone unrewarded.

If the facts of this case inspire a strange sense of deja vu, that might be because similar injustices continue to occur on an everyday basis throughout this country. Currently, the Japanese-based company Takata is attempting to escape liability for its lethal airbags under similar logic. In our recent memory, airplane owners and operators have shirked responsibility for preventable crashes, fabricators of foodstuffs, cosmetics, and medicines have marketed toxins with impunity, and factories selling their wares here have pointedly refused to comply with the most basic of our regulations. Far from the safeguard of "fair play and substantial justice" the Asahi decision claimed itself to be, it has caused our international economy to deteriorate into a lawless, deceitful exchange of tainted or dangerous goods.

However, we are far from helpless in the face of this judicial anarchy. Many states have adopted comprehensive "long-arm" statutes which locally overrule Asahi and similar decisions, restoring some sense of accountability to their commercial law. Massachusetts extends its reach to any company or individual who "derives substantial revenue from goods used or consumed or services rendered, in this commonwealth." New York takes it even further, not even requiring that the "substantial revenue" come from within the state as long as it originates from "interstate or international commerce" of any sort. The U.S. law, though, is not nearly so comprehensive, largely restricting federal jurisdiction to situations either of waiver or "in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere." 28 U.S.C. §1605. This will offer almost no protection against defects in the millions of imports that will flood our market if the TPP indeed goes into effect.

I recall that Justice Cardozo once said that "it is possible to use almost anything in a way that will make it dangerous if defective" - and clearly such faulty global policy will indeed be highly hazardous. Therefore, instead of opening the door even further to a practice already costing millions in unpaid damages and an inestimable amount of distress, injury and grief, maybe our government should focus on repairing the laws already in place.

Say No To TPP

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It's another average American evening, and there I am again, wandering the aisles of German-based grocery store Aldi. I begin to examine a package of bright red tomatoes, and intrigued by their unseasonable freshness, I begin to read the label. The vegetables, I discover, were grown in Mexico -- but distributed by a company headquartered in Ontario. Somewhat alarmed by this corporation's deliberate avoidance of the USA, I start examining other products around the store and the town, and discover the omnipresence of foreign goods. Walmart candy: the cherry balls were made in Canada and the peppermints originated south of the border. Canned fruit: the consumer is offered the comforting choice between Chinese and Mexican regulators. Apple juice: Argentina, China, and Turkey make their appearance frequently, but it seems unlikely Johnny Appleseed could find a buyer anytime soon. Silverware: It takes thirty minutes of reading the small print on the backs of tablespoons even to find tableware from Vietnam, and even longer to debate whether that's any safer than China or not. Tinfoil: "Made in America," but the generic brand admits using metal from Russia and the Reynolds Wrap package conveniently doesn't mention it. Even merchandise proudly sporting miniature American flags and other patriotic decorations is more often than not crafted from "imported materials."

Cheap, imported goods are commonplace and unavoidable, thanks to two factors -- international agreements such as NAFTA , which legalized and effectively sanctioned outsourcing, and common law decisions such as Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), which placed foreign companies completely out of the reach of US courts and regulators. Yet it still does not appear the U.S. government has learned its lesson.

Hence the proposed Trans-Pacific Partnership.

According to its official website, the TPP "levels the playing field for American workers and American businesses, leading to more Made-in-America exports and more higher-paying American jobs here at home." But in reality, it opens the door to even more state-sanctioned outsourcing while providing no protections for sweatshop workers or enforceable environmental requirements. Therefore, we at PlanetGreen.org take a firm stand against it, and, in our "Say No to TPP" series," will explore the terms of the agreement not as they are conveniently summarized by the government but as they will affect our everyday lives and our collective strength and growth as a nation.

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